I am the co-founder and chief strategy officer at LexFusion, the go-to-market collective of legal innovation companies (tech and services). I am also the co-founder of Procertas (competency-based tech training). I was a BigLaw litigator and then in-house counsel who went into legal operations consulting before one of my BigLaw consulting clients hired me full-time to help them build the biggest and best legal project management team in world. A Lean Six Sigma black belt, I tend to think in terms of scalable systems that properly leverage people through process and technology. I am deeply experienced in legal operations, legal tech, strategic sourcing, process improvement, systems re-engineering, and value storytelling, in addition to spending over a decade in the legal trenches as a practitioner. I’ve long served  as a mesh point between law departments and law firms to promote structured dialogue that fosters deep supplier relationships (read about that here). I am a regular writer and speaker on practical legal innovation.
Continue Reading Casey Flaherty

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.

Start with Why. Value storytelling is essential (series summarized here). But, as storytellers, we’re not experimenting with the form. We should tell simple, compelling stories with no mystery as to the What, How, and Why.

What is outputs. How is inputs/process. Why is purpose, outcomes, and value.

What, How, and Why all matter. But, for our business audience, legal’s What and How are inherently uninteresting. Always start with their Why.

Why is the subject of the previous post. Business value is the one true Why. The call to action. The hook. The propulsive force. But the framing of Why is context dependent. The way we talk about business value will often need to be calibrated to our subject matter and our target audience—identifying our target audience and understanding what messaging resonates with them is quintessential to mastering our own context.

The stories we tell must cohere with the stories our audience tells themselves about their own starring role in the business’s journey. We must present ourselves as allies in the same cause. Which we are. This sense of shared purpose is most crucial when we are engaged in productive disagreement and accountable for persuading our allies of unpalatable truths—whether seeking to rejigger their perspective on value preservation (e.g., refining their legal-risk/business-reward calculus) or recommending that finite resources be allocated to the legal function despite the very real opportunity costs. Continue Reading Start with Why – Value Storytelling (#4)

I interrupt our regularly scheduled programming—the continuing series on value storytelling—with a rant inspired by my pending Continuing Legal Education deadline.

Despite the temptation to satisfy everyone’s daily outrage quota by taking on a soft target, I consider our collective (and my personal) annoyance with CLE a minor symptom of a major problem. Our culture of learning is broken. This has all manner of downside implications, including for innovation.

But, first, a little rantastic fun. Can you spot what’s missing from this ad I received in the mail?

I am getting CLE right now. While typing these words, a CLE audio file is playing in the background on mute. I felt compelled to acquire hard evidence before launching into a tirade.

What’s missing from the advertisement is any suggestion I might learn. No mention of quality or relevance. Rather, the repeated, bolded promise of “no final exam” struck me as an assurance there would be no requirement I pay attention—i.e., I could avoid learning anything at all. A promise made; a promise kept. Continue Reading CLE is Broken (as is our approach to learning/innovation)

SERIES TO DATE

Lawyers Lagging Behind (#0)

Maybe, Don’t Be MacGyver (#1)

The Savings Trap (#2)

Defining Business Value (#3)

Start with Why (#4)

The Dept of Slow & No (#5)

Tech-First Failures (#6)

SUMMARY

Legal expertise is valuable to the enterprise. Demand is on steep upward trajectory. Budgets are failing to keep pace. We must optimize resource allocation and innovate—enhance productivity through process and tech. But, while innovation and optimization are key elements in our value story, we are still likely to need more money for the legal function to drive better business outcomes at scale and pace. Service levels are inextricably tied to resource levels—including the resources required to invest in innovation and optimization.

It is, literally, our job to ensure the legal aspects of business needs are met. Thus, it is also our job to secure sufficient resources for the legal function. Obtaining finite resources inside an enterprise carries substantial opportunity costs (other value the business could pursue with the same money) and therefore requires expert value storytelling, a learned skill in which few legal professionals are practiced.

The business defines “value.” Yet the number one complaint among the legal function’s business stakeholders is in-house lawyers “don’t understand my business.” Understanding—mastering our own context—is essential. We should be capable of framing our ask for incremental resources in the language and metrics of the business. Centering the creation, and preservation, of business value in our narrative is the core of value storytelling.

Business value is context-dependent, not unknowable. Conversations around the business value of, say, accelerating speed-to-revenue demand a different framing, and often has a different audience, than conversations around the business value of complying with new privacy regulations. We should know our audience and develop the attendant abilities to calibrate messaging for maximum resonance with specific sets of business stakeholders.

Being aligned with the business, however, does not spare us from making hard choices and engaging in hard conversations as to what constitutes value. Though it pains our service-loving souls, it incumbent upon us to prioritize activities by business impact and artfully say “no” when asked to handle deprioritized work. We should, however, capitalize on each “no” as an opportunity to build our story that additional legal resources are required to address unmet business needs.

Yet, instead of a more-with-more value proposition, we too often default to savings-centric tropes valorizing more-with-less heroics reliant on extraordinary effort and improvisational ingenuity to bridge resource gaps (excess MacGyverism). Stories about savings are easy because they are counterproductive—reinforcing the attractive fiction that the business can, and should, spend less on legal. Good value storytelling is anything but easy for the same reason it is necessary—the hallmark of successful advocacy is not a penchant for combative argumentation but, rather, our ability to persuade those who need persuading.

We are similarly inclined towards the attractive fiction of tech-first solutioningIt would be convenient if tech were the solutions to our problems. But value storytelling is persuasive nonfiction and is therefore required to survive contact with reality. In reality, we often need to pay down process and cultural debt to lay the groundwork for tech enablement.

Laying the groundwork starts with Why but needs to be supplemented with a compelling and coherent vision as to How business value should be delivered. We need an actionable strategy that resonates with our business stakeholders. Target operating models. Technology roadmaps. Metrics. We have to be able to move upstream to address the business drivers of legal workloads, presenting a systems-oriented view of how legal supports better business outcomes. Doing this well requires work sorting because we are bandwidth constrained. We can only tackle so many projects, let alone programs, at once.

In addition to limited bandwidth, we are constrained by a fear of looking bad and a myopic perspective on riskLegal is often labeled the Department of Slow or the Department of No, which undermines our value storytelling. We need to shift these perspectives among our stakeholders, in part, by understanding when and where they are grounded in some level of truth—candid self-assessments of being bottlenecks because of (i) bad processes or (ii) an acute focus on legal risk that ignores net business impact. This candor extends to our business case: fix what we can, admit where we are falling short, and request the resources we need to serve the business better.

As we move toward the end of the year, or as in Texas, the end of a lawyer’s birthday month, there becomes a mad scramble for completing Continuing Legal Education (CLE) courses. Has CLE become more about checking the box than about enhancing/maintaining a lawyer’s skill? Why is it that CLE credits are based on time, rather than knowledge? Is there a better way? Our guests this week certainly think so.

Ian Nelson, co-founder of Hotshot, a company whose business model is based on short instructional videos, originally without CLE… is now offering CLE credit with some of their packaged videos. This is a crack in the foundation of the traditional CLE model, and one that Sarah Glassmeyer, Legal Tech Curator · Reynen Court Inc. and Margaret Naughton, CLE Manager · McDermott Will & Emery hope continues.  Margaret did point out that not all CLE is boring, especially if you can kayak and learn.

Join us for a roundtable discussion on the potential for the next generation of CLE where the focus is more on true education, learning, and skills. Perhaps we can look outside the United States at places like the UK, Canada, Australia, and others where there is more focus on an educational plan than there is on the rigid structure of sitting in a seat and listening to a “sage on the stage” talking for 30 or 60 minutes.

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Information Inspirations

Jessica Gore, 3L at University of New Hampshire Franklin Pierce School of Law has an attitude of “if nobody else will do it, allow me”… And she proved that by producing a better design for understanding the Federal Rules of Evidence.  She joins us, ironically on the same day as her Evidence mid-term, to talk about how she knew she could design a much better rules book than what was on the market. Her method of using Twitter to gather feedback and improve upon the prototype is exactly what we discussed in last week’s episode, so she is definitely our inspiration this week. Check out Jessica’s IP Illustrated tools website as well.

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Music: As always, the great music you hear on the podcast is from Jerry David DeCicca who 4th solo album just released a vinyl edition this month!
Transcript

Continue Reading The Geek in Review Ep. 133 – Ian Nelson, Sarah Glassmeyer, and Margaret Naughton on the Next Generation of CLE

Business value is business-centric. Law departments frequently ask me about metrics. My response is not nearly as definitive as they desire. I recommend they start with the customer—incorporating the metrics the business is already using and then proceeding accordingly to develop the complementary, internal (to the law department) metrics necessary to manage the department in supporting business objectives.

Talk to most (not all) law departments, you find the inverse. Most law department metrics are law-department centric, full stop. Most track their spend, consistent with a savings-centric narrative, the pitfalls of which I discussed last post. Spend with law firms. Spend v. budget. Internal v. external spend. Necessary. Fine. Limited.

You can also find excellent content online on how a more sophisticated law department can, and should, measure itself. Matter volume. Matter velocity. Cycle times. Better. Rare. Still law-department-centric.

To ground the conversation, we require some metrics on metrics. The most common law department metric is Total Spend By Law Firm, in use at 90% of law departments. No other metric cracks 60%. Cycle Time, by contrast, is near the bottom, tracked by only 16% of law departments. Legal Spend To Revenue is in the middle of the distribution at 29% penetration.

Critically, excepting diversity, these metrics are essentially meaningless from a business perspective. The CEO cares as little about how many matters the law department handles as they do about how many tickets the IT help desk closes, despite the fact both are essential to running the business. These are useful measures for managing workload within a specific function but irrelevant for managing the business—unless and until they are translated into actual business impact (i.e., value storytelling). Continue Reading Defining Business Value – Value Storytelling (#3)

Me: Which “genius” decided savings should be a prime objective and metric of success for law departments?

Jae: [purses lips & tilts head]

Me: But…

Jae: [rolls eyes]

Me: No…like…well, actually…but see…what had happened was…

Jae: [sighs]

Me: Fine. I’ll recant and repent. But, just so we’re clear, I am not happy about it.

Jae: [shrugs]

Saving money is essential. But not as an end in itself. Centering savings in our value storytelling is seductive but, long-term, counterproductive. Our story should be one of delivering business value. Delivering business value is contingent on us having sufficient resources to meet the evolving needs of the business.

To the extent I have played any role in promoting the narrative that law departments should prioritize savings for savings sake—as in, “today over half of these departments are targeting savings of 20% or more” (2021 EY Law Survey)—I seek absolution, and wish to atone, for my sins.

I remain a harsh, vocal critic of waste in the delivery of legal services—without remorse. Yet, in what may be revisionist history, I protest: I have been misunderstood. I hold nuanced views. My focus is reducing the unit cost of legal services as one component of us collectively solving for scale.

My operating assumption remains that demand for legal expertise is on a steep upward trajectory in our law-thick world; to the point where, even if we can reverse the correlated trend in relative costs, many law departments will require more, not less, budget to address the legal dimensions of business problems. Indeed, this series commenced with my observation that “Some law departments simply need more money. Not all of them will get it.” This was the conclusion to a post I wrote about ever-increasing demand for expert legal guidance, the rise in relative costs, the failure of corporate legal budgets to keep pace, the limits of insourcing, the resulting productivity imperative, and our need to improve at value storytelling.

I built on this observation last post contending that superhuman efforts to do too much with too little (excessive MacGyverism) sabotages our legitimate ask for allocation of incremental resources to the legal function. I maintain it is incumbent on us to do the uncomfortable, including saying “no” and “I told you so” the right way. Our natural state is a reflexive “yes” followed by extraordinary, unsustainable effort. Holding the line on strategic prioritization is an unsettling but necessary exercise, as is elevating our effectiveness at the “executive art of the business case.

Herein, I posit that savings, as an end in and of itself, should not be a strategic priority and, like excessive MacGyverism, undermines our business case.

This is supposed to be hard. This is the big leagues. Corporate dollars are fungible but finite. The opportunity costs of apportioning incremental funds to legal are considerable.  I am intimately familiar with how challenging it can be to secure budget. I am also intensely familiar with how it becomes increasingly impossible to satisfy ever-expanding business needs with an ever-shrinking budget—we can only do so much extraordinary gap filling. It is essential we do the hard things well to avoid facing the impossible. When put in a no-win situation, we lose.

Our general value may be self-evident but our marginal value probably isn’t. “We need more resources because we’re busy” is only moderately useful as an argument for the allocation of marginal dollars. It is, however, quite common because it is inherently logical—if we accept the premise that legal support is necessary to the proper functioning of the enterprise.

“what we do is important” + “don’t have enough resources to do it” ≠ more resources

We often face a high evidentiary burden when requesting incremental increases in resource allocation even where the foundational case for our existence is treated as axiomatic. We ratchet up the difficulty setting when we suggest we already have more resources than we need—or worse, have been wasting resources for years.

Corporations underinvest all the time, for many reasons. Organizational underinvestment is endemic. This includes underinvestment in legal, which is often a budgetary rounding error (in percentage terms, even where the raw dollars are massive). Sometimes, corporations underinvest because they must consciously make hard choices. Sometimes, corporations underinvest because they unintentionally make poor choices.

Good value storytelling will increase the likelihood of adequate investment in legal but is no guarantee. In crafting a compelling story, centering savings can be enticing in the near term. But, long term, framing savings as end in itself can prove to be an unforced error as it perpetuates the attractive fiction that corporations can, and should, spend less on the legal function.

Saving money is easy in the short term. Just fire someone. Who? Doesn’t really matter. A reduction in force will eliminate nominal costs from one area of your budget. Too crude and close to home? Fine. Demand ever deeper discounts from your law firms. Or hold a reverse rate auction. Or add another dozen items to the list of what you won’t pay for in your outside counsel guidelines. Keep going back to the well; double down on whatever “worked” before (or has purportedly worked elsewhere).

The levers available to superficially cut costs in the near term are legion. Most of them are fine as far as they go—they just don’t go very far.

We absolutely must make decisions about the size and shape of our law departments. We must regularly revisit and refresh our relationships with external providers. But we should do so with an eye towards long-term sustainability, not only short-term savings. The associated messaging should be about optimal reallocation of finite resources to better support strategic enterprise priorities—not a net, permanent reduction in resource requirements.

With an eye towards quick, tangible wins, too many law departments have seized on building their fiscal bona fides through aggressive, explicit efforts to save money. This is understandable. “Less-expensive alternative to outside counsel” is the origin story of many law departments. But after quick wins are quickly forgotten, a savings-centric value proposition positions us poorly for our next magic trick. One-time lifts do not lend themselves to repetition or, at the very least, are subject to diminishing returns. Worse, foregrounding savings creates, or cements, the expectation that the law department should be judged on our ability to spend less money. This expectation is at odds with our true purpose (meet the needs of the business) and long-term reality.

One hope is that by showing ourselves to be conscientious stewards of corporate resources with an established track record of fiscal prudence, we will garner credibility that serves us well in our quest for more resources. It rarely works this way. In some narrow contexts, savings are a path to glory. Most of the time, however, the sole reward for spending less of your budget is less budget going forward. Short-term cost savings only imprint to short-term memory.

Track record matters. But, most places, goodwill is earned through recognized value delivered to the business, not cutting legal costs (a fractional amount of a fractional amount). We are remembered best when we help make or save real money. The job is to enable the business. The symbiotic responsibility is to secure sufficient resources to do the job.

What about doing more with less? Sure. We must do more with less—on a relative basis. We face a productivity imperative grounded in ever-increasing demands with which our budgets will simply not keep pace. Our resource/demand gap can only grow so large, so fast, until something critical falls into the gulf.

Business activity is increasing. Government activity—legal complexity in the form of statutes, regulations, investigations, etc. compounded by cross-border complications–is increasing in response thereto. The related costs of doing business escalate with the amount of business being done. Specifically, legal is a cost of doing business on an explicable upward trajectory.

Given the uptick in total demand (more economic activity in a more densely regulated environment), there is no self-evident reason to expect total spend on legal will be reduced in the foreseeable future.

Process-driven, tech-enabled legal service delivery can reduce the unit cost of legal services while moving upstream to address business drivers of legal spend (e.g., #dolesslaw, prevention) can reduce the number of units of legal services required per quantum of business activity. But I am still hard pressed to imagine a world where aggregate spend decreases even if we materially increase our yield per dollar expended. Costs in raw dollars will still likely trend up, even if we bring relative costs down dramatically. Pretending otherwise is a recipe for pain. Frankly, our expectation should not be more with less, regardless of how common that refrain has become. Rather, we will need to do more with more. Embedding this expectation with our stakeholders requires us to be expert in arguing for more in an environment where that is the opposite of what anyone wants to hear.

A word of caution even about relative spend. Measurement is a tricky beast. Goodhart’s law, for example, tells us that once a measure becomes a target, it ceases to be a good measure. The answer is not to abandon data. Rather, we are best served by a balanced bundle of meaningful metrics and the attendant ability to weave them into coherent stories—raw data is not a story.

Legal Spend as % of Revenue, for example, is a solid benchmark and KPI. No argument here. In a stable environment, reducing spend as a percentage of company revenue can help tell the story of our ability to control unit costs relative to company activity while simultaneously reinforcing the proposition that the legal budget should remain on a smooth upward trajectory. Yet spend as a percentage of revenue can be wildly misleading in a volatile environment or during periods of punctuated equilibrium.

The fun version of budgetary chaos is a healthy, well-run, growth-oriented company going on a smart acquisition spree, injecting a large bolus of M&A activity that spikes legal spend. Great. We exist to support the enterprise in creating new business value. Totally understandable if previously unbudgeted expenditures on deal counsel, due diligence, and post-merger integration do some violence to our expected outlays.

Alternatively, our company could find itself in new regulatory environment or on the wrong end of a government investigation. Less awesome from the company perspective. But legal’s role in value preservation is no less vital—and no less expensive. Per Jae, when we look at the prevalence and severity of fines against large corporations, the upward pressure on legal budgets presents as an organic outcome.

We should not erect false idols (“reduction in legal spend is our objective”) to which we can be sacrificed when events outside our control force us to violate self-imposed strictures. Instead, we need to properly manage expectations by meticulously crafting a convincing story of how corporate funds should be spent, and why. Exogenous events will shape our story, so we should be exceedingly careful not to paint ourselves into narrative corners.

So we shouldn’t save money or talk about it if we do? We should continuously strive to maximize the value derived from every dollar spent. This will often involve creatively identifying ways to reduce costs in one area so we can reallocate money to other underfunded mandates. We absolutely should talk, proudly, about how we saved company money but should be careful not to speak as if saving money is itself an objective. Rather, the mission is to better support the company’s strategic priorities. Our emphasis should be on the enhanced business value the savings enabled, not the savings themselves. Our framing therefore should be focused on more optimal allocation of scarce resources, not the reclamation of excess resources.

What about when the enterprise requires us to reduce spend? Then we reduce spend. The foregoing is not some pollyannaish take willfully blind to the realities of operating in a corporate environment. The reality is, even with exceptional value storytelling, most legal functions will remain chronically underfunded relative to the intensification of demand, and will also have to weather episodic cost-cutting mandates. I’m not saying it is easy. I’m saying don’t make it harder than it already is by falling prey to the Siren Song of Savings and centering cost cutting in our narrative as some sort of intrinsic, independent good.

More about more for more in the next post in this series.

Ironclad‘s Chief Community Officer, Mary O’Carroll, has spent the past two decades bringing business acumen to the legal industry. In an industry run by lawyers, most of whom had little to no business training, Mary points out that it is logical that legal ops teams are needed to be the right-hand people in helping lawyers in the business process. Her experience with Orrick, Google, CLOC, and now Ironclad has one common thread, and that is the need to drive change. Mary says that it is just a part of her personality to be laser-focused on efficiency and find ways to clean up the mess she uncovers in the legal industry.
It is that desire to drive change through the use of the legal community that helped her make the decision to join Ironclad and the hot field of Contract Lifecycle Management (CLM). Mary points out that the industry has worked to improve efficiency in many areas, but when it comes to contracts, we are continuing to do business as usual. Creating a digital contracting system will help scale the industry, as well as enable us to leverage data, which has always been trapped in contracts, and create new methods for the legal department to help drive the overall success of the business, and no longer be seen as a department where ideas and innovation go to die.

Information Inspirations
Our own Casey Flaherty advises us to stop trying to be a hero, and learn to say no when it comes to spreading resources too thin. Check out his latest article, “Maybe, Don’t Be MacGyver – The Value of Value Storytelling.”
Singapore is launching a couple of Dalek-looking robots to monitor “undesirable behavior” among its citizens. Is this a logical use of technology or a slippery slope toward technology overreach?
O’Melveny and Myers is the first law firm to join Peloton’s Corporate Wellness Program.
The next time you go through a drive-thru, you may hear the crisp, clear voice of an AI program taking your order. Will the robots take more and more of the service jobs away, and will there be a shift in the way the government taxes those robot workers who replace humans?
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Transcript

Continue Reading The Geek in Review Ep. 130 – Mary O’Carroll – The Power of Community in Driving Change

I posit that the most valuable skill that every corporate law department needs in 2021 and beyond is the executive art of the business case….The reasons for this are many, but I’ll give just one: This is a task that cannot be outsourced.  Without the ability to secure the budget and investment required by the demands on the function, corporate clients will remain forever trapped in a never-ending cost-cutting exercise, to the detriment of everyone involved.  Worse yet, sustained strain on the corporate legal function and its outside supply chain introduces net-new risk — legal, financial and compliance risks — not only for the enterprise but for the social system to which we all belong.

Jae Um

I concluded my last post, on ever-increasing demand and our resulting productivity imperative, with the observation, “Some law departments simply need more money. Not all of them will get it.” In what may be a mini-series of follow-up posts, I try expand some on the value of value storytelling with a bias towards the uncomfortable and controversial. As I have been recently helping some GCs with annual budgeting, my primary orientation here is in-house but many lessons are more generally applicable.

It depends (on context). As Jae says, the business case cannot be outsourced. While good questions tend to be universal, good answers are almost always context dependent. We are responsible for achieving mastery of our own context. Mastery entails being able to navigate our context successfully, a higher bar than issue spotting for outsiders as to why “that won’t work here.” Having an information advantage over outsiders is meaningless. Your audience, and your competition, are inside your organization.

This is supposed to be hard. The Australian women smashed the world record in the 4x200m freestyle relay during the 2021 Summer Olympics—and still only won bronze. Falling short is common when competing against the best in the world. In seeking to secure finite resources within a world-class organization, we likely face world-class competition.

Maybe, just maybe, don’t be MacGyver. When we are under-resourced, the temptation is to fill in the gaps through extraordinary effort augmented by ingenuity. Yet any system predicated on extraordinary effort is unsustainable.

In one sense, it is laudable to meet several unfunded mandates with a paperclip, chewed bubble gum, and some duct tape, while working nights/weekends. Then again, if our organization is accreting operational risk by underfunding mission-critical work, it is our responsibility, as a conscientious steward of said organization, to make this manifest and pursue adequate resourcing. Superhuman gap filling can be counterproductive. We undermine our own case. Extraordinary yet unsustainable performance masks deficiencies and gives outsiders the illusion we have all we need—almost no one cares how busy we are perpetuating the illusion.

I recognize not doing things that, ideally, should get done demands uncomfortable choices and uncomfortable conversations. That’s the job. Sometimes, it is incumbent upon us to be correct, consistent, and persistent (Andy Dufrensene) rather than heroic (MacGyver).

Be prepared to say “No” and “I told you so” often (and ever so politely). Not being MacGyver requires saying No more often, and more clearly. I am deeply familiar with the angst this triggers. Many legal professionals have rightly cultivated a service mentality and are committed to doing everything in their power to meet the multifaceted (and multiplying) needs of their organization. Saying No reeks of disappointment, if not outright dereliction of duty. Continue Reading Maybe, Don’t Be MacGyver – Value Storytelling (#1)