At present, the most universal priority for law departments is “controlling outside counsel costs” per 85% of respondents to the most recent TR Legal Department Operations Index.

I understand. I also doubt the marginal utility of simply pressing harder on the traditional levers of cost control (discounts, panels, RFPs, outside counsel guidelines, AFAs). My sometimes solicited, alternative advice:

• Package work. Identify opportunities to enter portfolio arrangements, including integrated law relationships with New Law offerings.
• Move work. Right source, including greater use of legal marketplaces to find the right talent at the right price.
• Re-examine costs on autopilot. Major advances in ediscovery, ADR, court reporting, staffing, etc. present substantial, immediate spend-optimization opportunities.
• Don’t stop investing in compliance by design. Embedding legal knowledge in business processes is the only viable, long-term approach to meeting the evolving legal needs of business in an increasingly complex operating environment.

If you want to discuss, call me, maybe.

Herein, however, I am not focused on being better. Rather, we will continue our exploration of avoiding worse. The unpalatable message remains that even when something must be done, doing nothing is superior to doing the wrong thing. Running in the wrong direction cannot be course corrected solely by redoubling our efforts.

Continue Reading Trust Fall: the limits of discounts, panels, billing guidelines, etc.

I’m not really into the whole brevity thing. I already wrote a brief post (only 800 words) that concludes with succint advice to law departments on discounts, AFAs, panels, outside counsel guidelines, RFPs, and, in particular, a humbling recommendation they not ask law firms about the use of technology unless the answers will inform structured dialogue to improve business outcomes at scale and pace (because I’d previously written a book on this subject).

At the conclusion of this off-brand concision, I promised my tiny corps of hard core readers an extended universe of nerd content. Fair warning, this is not for everyone.

Continue Reading Scary Stories about our Wicked Problems (Legal Nerd Halloween)

I should be taking a victory lap. Instead, I am on an apology tour urging in-house departments not to listen to me—i.e., ignore my long-standing advice re asking law firms about their use of technology. I’ve concluded that the common application of my advice only adds unnecessary friction to an already friction-laden system—similar to the value-subtractive frictions introduced by ubiquitous, well-intentioned, and misguided approaches to discounts, panels, outside counsel guidelines, AFAs, etc.

I understand the motivations. I also understand the constraints. Everyone operating in our space should be able to connect the dots on these four statistics:

• 75% of GCs recognize workloads will outpace budgets (problem)
• 80% of in-house lawyers are burned out (consequence)
• 70% of law departments are not investing in digital transformation (unavailable solution due to resource constraints)
• 70% of law departments are asking law firms about technology usage (attempt to cope within resource constraints)

Continue Reading Legal Buy: We’re Asking the Wrong Questions (and it is my fault, kind of)

I had the good fortune to attend the first in-person CLOC Global Institute in three years. It was an extremely positive experience. Unfortunately, I came home to find I was different kind of positive (new reality; unsurprising after three weeks of travel). I was therefore not able to timely complete my final CGI Dispatch for Artificial Lawyer. Blogs, however, have no deadlines.

To recap:

Dispatch #1 discussed the rise of legal ops in the context of ever-increasing scale, organizational complicatedness, and legal complexity.

Dispatch #2 covered the stellar pre-conference Legal Ops 101 session, highlighting the importance of education when most legal ops roles are net new and, therefore, being filled by individuals with no prior experience.

Dispatch #3 reported on the first day of CGI, which was bookended by sessions on storytelling (one of my favorite topics).

Dispatch #4 was to be a reflection piece. While I could have done without the multiple days of fatigue and brain fog, I am glad I had the opportunity to truly reflect.

Let me set the scene.

LARGE CONFERENCE ROOM — BELLAGIO, LAS VEGAS — CLOC GLOBAL INSTITUTE — LEGAL OPS 101

The presenters are lined up on stage at the end of a three-hour session built around the CLOC Core 12. The Q&A session is commencing. I am part of a sold-out audience of 170+.

Question: At a company where legal ops is new, which of the Core 12 would you start with?

Presenter1: Well, I began by getting the DMS under control.

Me (mouthing silently): What? No?

Presenter2: Typically, ebilling and outside counsel rates get attacked first.

Me (shaking head and whispering): But…but…

Presenter3: Knowledge management.

Me (clutching table and muttering compulsively): No! No! You start with the business! The business!

Presenter4: Department budgeting.

Me (spontaneously combusts)

END SCENE

The above is not a literal transcript. But it is a fair recounting of the conclusion of the excellent Legal Ops 101. What was unfair was my reaction.

While I have been wrong many times before (here, here), I stand by my substantive point in this instance. I am a broken record (most recently, here) about the importance, and unfortunate absence, of centering business needs in law department planning.

But being right is different than being fair. Continue Reading CLOC Global Institute – Reflection (Delayed)

Tropes around tech utopianism are attractive fictions that promise quick wins and deliver long-term pain, ultimately undermining our efforts at effective value storytelling (series recap, plus prior screeds against tech-fixated magical thinking here, here, and here)

A new bombshell lawsuit against a contract lifecycle management provider offers a stark reminder of the promise and peril of CLM—and therefore an unfortunate but instructive example of how tech-first solutioning can go terribly wrong.

Bad contracting processes have consequences. At the center of the complaint is a ~$5m contract for CLM services and tech. The plaintiff claim they terminated the contract early for alleged uncured breaches thereof and then mistakenly continued to make ~$1.7m in payments to defendant.

Isn’t it ironic (in the Alanis Morrissette sense of the word) that in a lawsuit centered around a disastrous effort to improve contract management a substantial percentage of the alleged damages are due to alleged failures in contract management.

The business value of better contracting is not in question. As discussed previously, a 20% improvement in contracting efficacy has, on average, 32x the business impact of cutting outside counsel spend by 20%. Tech has an important role to play. But tech should not be the star of the show, especially in the beginning.

When tech is not the primary problem (or the primary solution). The complaint begins its retelling in October 2019 when the defendant gave an in-person platform demonstration. In June 2020—seven months later “following a rigorous selection process”—the parties entered into the $5m contract only to terminate it in April 2021, ten months post execution. Suit was filed in November—more than two years after the demo (which is unlikely to have even been the beginning of this ill-fated journey).

Important for our purposes, the plaintiff specifically alleges only one tech-related misrepresentation giving rise to their claims (the ability to “apply a single contract amendment to multiple agreements simultaneously”). Beyond that, every issue raised in the complaint relates to the enormous amount of work required to properly implement CLM.

Characterized as inadequate in the complaint:

• Staffing
• Availability of key resources
• Status tracking
• Training
• Documentation
• Discovery
• Design
• Feedback
• Data mapping
• Data conversion
• Data migration
• Data validation
• Template harmonization
• Contract sorting
• Clause matching
• Implementation
• Integration

The tech is not the central grievance. The gravamen of the complaint is the absence of expertise: Continue Reading Tech-First Failures – Value Storytelling (#6)

Two massive barriers to good value storytelling (series recap):

1. It requires hard work, taking time we don’t have
2. Even if we have the time and do the work, our current chapter might prove unflattering

Herein, I focus on #2. Ego is often the enemy and, thus, we must frequently first edit the stories we tell ourselves.

I give short shrift to #1 only because it lends itself better to books, coursework and practice than a brief blog post (or even a long blog post).

In the beginning, there was the current state. We start by mapping existing processes, capturing meaningful data, and (eventually) using that data to craft a story (last post) that resonates with our business stakeholders.

Per usual, easier said than done. The rigor and effort required to overcome inertia consume finite resources (almost no one has strategic reserves of time and attention). Mapping and measuring is often labor intensive because we don’t just need to know who does what and how, but why. And not the superficial why but the root-cause why.

It is astounding how often we dig into long-established processes and the reasoning behind a particular step turns out to be ¯\_(ツ)_/¯. Vestigial activities are endemic, as are kludges and compromises born from expediency (the need for speed). We are awash in technical, process, and cultural debt.

The status quo, however, rarely bears any evidentiary burden whereas proposals to improve on the status quo are often subject to strictest levels of scrutiny. We need to get our story straight, including being prepared for one troubling angle of inquiry: how did you let it get so bad? Identifying an opportunity for improvement can be flipped on its head as an indictment that persists whether or not we secure the resources required to remedy the issue. Volunteering for additional accountability is not an appealing option.

Early on, our story is rarely a happy one (and that’s ok). As discussed last post, we often default to vague stories because we have no other choice. We lack the details, data, and insights to paint a compelling picture. Resource constraints are, as always, a primary culprit—which is why we must be selective in the stories we aim to tell well. But another blocker is the forgivable fear of what we might uncover.

The excusable ambition is to tell a story in which everything legal does is awesome—with even more awesomeness bound to result from earmarking additional resources for legal. But this narrative will usually ring false. Because it is not true. Which creates a conundrum. Maximizing throughput at current resourcing levels would, at first glance, seem foundational to a persuasive story of how incremental resources will be deployed to benefit the business—i.e., use what’ve you got wisely before asking for more.

Unfortunately, there is likely considerable waste embedded in our current operating model. Even if we prefer to believe our initial design decisions were impeccable (no) and our execution thereof flawless (also no), we are confronted with the harsh reality of entropy as the world moves faster than our department ever could. The endless pursuit of optimal requires regular recalibration. True transformation requires much, much more. But telling a story in which a pivot results in a positive outcome is almost invariably an admission that, at some point, our choices and behaviors were suboptimal.

We do not like to look bad. But we probably need to look bad before we can get good.

The first step is admitting imperfection. Take, for example, this fabulous case study from my friend Alex Hamilton’s must-read book on contracting, Sign Here (reprinted with permission, of course):

That’s four very different stories.

The common Why is “because the government said so.” This Why is not fun—money spent to preserve, rather than create, value in response to increased legal complexity. But, as Whys go, sufficiently clear and compelling. More intriguing are the divergent Hows.

The companies resemble one another, from a distance. Each company is partnering with the same New Law company to tackle the same problem. Each has sufficient rigor around process and metrics to the point of being able to identify specific bottlenecks. Yet, despite superficially similar levels of sophistication, there are material differences in outcomes.

The Department of Slow. By attempting to insert a provision, not required by the new legislation, to materially increase their counterparties’ potential liability, Dept B moved 4.5x slower than Dept D. This delay cuts right to the heart of the relationship between legal work and business outcomes and why divorcing legal considerations from business value can diminish the legal function’s standing with business stakeholders.

(h/t Alex Su)

According to Gartner, when legal guidance is too conservative, business decision makers are:

• 2.5 times more likely to forgo business opportunities that legal recommendations have made less attractive
• 2.5 times more likely to suffer delays in capturing opportunities as they work through legal guidance and requirements
• 4.25 times more likely to scale down the scope of opportunities

What lawyers consider “conservative” can put a company into an “aggressive” posture vis-à-vis counterparties with whom they are trying to do actual business. Consider this entire thread  about a lawyer costing an individual client millions of dollars by taking maximalist negotiating positions in a genuine effort to protect the client’s interests.

With the thread in mind, the questions prompted by the case study include: was the attempt to contractually increase the other side’s overall liability a net positive to the business? Did it merit the increase in cycle times, and the attention costs associated therewith? Was the resulting friction in the commercial relationship worth it?

I don’t know.

I can’t know. The answers are context dependent. Maybe an inciting incident or leadership change altered the business’s risk tolerance and this repapering exercise presented an opportunity to redress their risk profile. Not my circus, not my elephants.

Facts are annoying that way. So in a display of internet courage, I will hazard a guess that this business’s raison d’etre is not to maximize its counterparty’s potential liability. Just as I am fairly confident the business’s primary objective is not to minimize its own liability (winding down operations would be the surest route to unlock this dubious achievement).

From personal experience, telling a businessperson “well, there’s a risk” is essentially a content-free statement. Every business decision, every action and inaction, balances a variety of enterprise risks, only some of which are legal in nature. Attempting to eliminate risk, or minimize risk in a way that ignores net business impact, is one way the legal function becomes labeled the Department of No and the Department of Slow, with the primary complaint among our stakeholders being that in-house lawyers “don’t understand my business.”

It remains incumbent on the legal function to identify legal risks and characterize those risks properly. We need to intelligibly translate legal risk into potential business impact (probability, frequency, severity). Indeed, the dream is to price risk properly and integrate it directly into the business calculus. Which is another way of saying, our role includes helping to advise the business on taking smart risks.

Inevitably, we will still have to tell the business that which they would rather not hear—like new privacy legislation requires us to update many existing contracts. But we will find a much more receptive audience if we have consistently demonstrated we are allies invested in helping the business make money.

A credible (rather than incredible) bearer of bad news. The legal department needing more resources will be among the unpalatable truths that almost no one will be eager to accept.

Informing the business that legal has been wasting money for years will not endear us to our audience in the right way—savings-centric narratives are a dead-end path of least resistance that reinforce the attractive fiction that the company should be spending less on legal. On the other end of the spectrum, pretending like legal is eternally perched at the apex of resource optimization and operational excellence is (likely) transparently laughable.

The middle road is to do the best we can to optimize the resources we have while also asking for the resources we need. Pick the low-hanging fruit (i.e., patent, preventable waste) identified in the process mapping/measurement exercise and present the resulting improvements to support the case for more resources to move beyond incrementalism. In the case-study example, reform the delay-inducing contract language and then cite the already improved cycle times in the petition for (i) the resources and (ii) cross-functional collaboration necessary to address the delays caused by slow approvals and signatures, the topic to which we will return next post.

I know. I remain a citizen of good standing in Obvioustown. But the middle path is rarely chosen because it requires being bold (asking for more money) while also being prepared (putting in the work to get the story straight), including being prepared to recognize where we are falling short (looking less than perfect). Most departments are situated near one of the extremes—too shy to ask for the resources we need (no value stories to tell) or too quick to do so without any meaningful effort to get our house in order (our stories are vague and incredible).

Some level of humility is an important part of credibility. But not too much. Technical, process, and cultural debt are not unique to legal. The law department’s ways of working are unlikely to be the most inexplicable part of the collective goat rodeo. It often seems like the business makes money in spite of itself. Humility paired with competence and tangible progress towards improved business outcomes should be enough to convince persuadable stakeholders that additional resources will be put to good use.

Likewise, we should not apologize that increasing legal complexity drives up the costs of doing business. That’s the problem we’re responsible for addressing, not responsible for creating. Instead, we need to clearly articulate the business value at stake in a manner that reflects our roles as allies in driving superior business outcomes, including advising the business on taking smart risks. This does not guarantee we will secure the requisite resources (expect legal to still be chronically underfunded) but it does improve our chances substantially as we change perceptions about being the Department of Slow/No.