With great interest, I have been following Bruce’s series on Growth is Dead. Bruce brings a refreshing economist’s perspective to a bear on an important set of issues.

Apart from agreeing with him, I offer yet another economist’s perspective, taking on another dimension of this analysis. Back in the Spring, I dubbed 2012 “The Year of Pain” for law firms, especially BigLaw. If you track the stats from Bruce’s posts back a few years, the situation he describes has been in place or developing for some time now. So why is 2012 The Year of Pain?

My view is that most firms, or perhaps even the entire market, have been ‘kicking the can down the road’ for some time now. By this I mean they have been cutting and tweaking to stave off any reductions in profit (a.k.a. the almighty PPP). By terminating staff and cutting various costs, firms have been able to maintain, and in some circumstances, even expand their PPP numbers. But, for the most part, this PPP maintenance has not come about based on real revenue growth.

Revenue growth in the market for the past few years has been tracking almost one-to-one the growth in billing rates. This means the actual amount of business has not been growing; only moderate price increases have produced any revenue growth.

Another aspect of ‘kicking the can’ on the cost reduction side has come from non-sustainable cost savings. By this I mean delaying expenses, such as technology upgrades or space build outs or any number of major expenses. Certainly some staff reductions resulted in long-term cost savings. In fact some of these measures came in to full impact in 2011, as the cost of severance packages were fully paid out in 2010. But even these expenses do not address the real problem. Some were obviously luxuries, but many were the reduction of the lowest cost labor sources in the firm.

Bruce rightly focuses on the revenue side in his analysis, but also within the same stats are a 6% growth in expenses for law firms in 2012. So what the market is experiencing is slowing growth (per Bruce) and rising expenses driven to a large extent by excess capacity in the lawyer ranks. Bruce is right on with this assessment, the market stats clearly show that firms have more lawyers than work and this has been the case for the past few years.

But here is where I part from Bruce’s analysis. The core issue is far more than excess capacity or even having excess capacity in the wrong practices. If we could wave a wand and ‘right size’ law firms would that address the core problem?

I say no. In fact, this wand waving act would be another ‘kick the can’ effort, trying to hold on to a reasonable PPP in the face change. It will buy firms another year or so of face-saving PPP, but only delays the real consequences. And I think further avoidance of embracing change will be disastrous for law firms. Every day that passes that law firms avoid change is another day closer to irrelevance. Susskind’s book title was right. His question mark was strategically placed saying that The End of Lawyers? will come if lawyers do not embrace change. Many of his predictions are coming true or are already in place. So in many respects, The End of Lawyers has already begun and is well under way.

So I say we need The Pain. That may be the only way law firms finally stop talking about the need to change and start actually doing it.

From my economist’s perspective, we have fully transitioned in to a Competitive Market. I make the distinction between a Competitive Market and a Buyer’s Market for a reason. For one, the Buyer’s Market label smells of temporary; as in this is a pendulum swinging back – and then forth. Whereas a Competitive Market signals structural change and thus brings an impetus for embracing new methods. Layering in Susskind’s thinking, not only is it a Competitive Market, but the nature of competition is changing. LPOs and non-law firms are now beating at the door. Delayed change is merely ceding market share to new players. Every day that passes = more market share gone.

The Year of Pain means the day of reckoning is upon us. All of the can kicking has caught up with us. So instead of finding more ways to kick it, I say it’s time to … Bring on The Pain.

Image [cc] israelavila

My good friend and blogging colleague Jordan Furlong suggested an intriguing idea while we were attending the ILTA Conference. We had started down a path on the sometimes taboo topic of timekeeping and the billable hour. Jordan takes the position that it should be abolished, freeing lawyers from the yoke of billable hours. Our debate ended with Jordan’s suggestion of a set of point-counterpoint blog posts. Originally I was thinking more along the lines of a Dan Aykroyd / Jane Curtin approach (with me getting the Dan Aykroyd line), but Jordan’s wisdom prevailed, so we are going with a Star Trek meme, celebrating its 456th Anniversary.

 For Jordan’s off-based, rambling dialog (a.k.a. his point of view), check out his post here. What follows is my more prescribed, thoughtful and logical approach to the subject.

As we all know, a tear in the fabric of the space-time-continuum, such as the one Jordan suggests, brings many dangers. What we know and trust can lose cohesion. And we know the most appropriate response to addressing such a challenge: Logic – brought to us by our old friend, Mister Spock.

Mister Spock:

Although the suspension of the laws of timekeeping may have a certain appeal to the more emotional among us, logic will help us find our way back to solid ground. We all know the challenges and pitfalls of timekeeping in the legal market. However, just because something is hard, does not mean it should not be mastered.

To illustrate this, let’s step in to Jordan’s space-time breach and contemplate the world we see. Lacking timekeeping, the only apparent meter of value becomes value itself. Side-stepping the circular logic reference, we end up asking the client to share their perception of value for a given piece of work by providing the price they will pay for a service. Once they have chosen the price, do we commence with work?

Logic would dictate we will want some idea of whether we can obtain a reasonable level of profit on the work since the continued existence of our business and as an extension, our paycheck, is subject to this metric. A simple question must be asked: Are the cost of inputs greater than the price obtained? Which of course leads us to the question: Inputs?

Knowledge workers bring two types of input to bear when they provide a service: their knowledge and their time, a finite resource. So in answer to our question, we will want to know the amount of time required for each level of knowledge worker. We will stress here that we are not referencing their billing rates, but instead their cost rates. This would be our cost per hour per knowledge worker, which of course will be higher for those with more advanced and valuable levels of knowledge.

Moving back to our question, we cannot know the cost of inputs without knowing the cost of time. So we cannot know whether a piece of work will be profitable until we mend the tear in the space-time-continuum and recapture the ability to keep time.

Does this necessarily mean that time, or effort in this argument, equals value? No it does not. Only that time and effort are factors of cost. But to explore this disconnect between time and value, we should consider another possible scenario.

We return back in to our tear where our client values a service at 10,000 Darseks (he’s Klingon – btw).  We accept his offer and immediately hand him the necessary stack of completed legal documents. At this, he pulls his bat’leth and demands the return of his 10,000 Darseks. Why would he do such a thing? He has clearly valued the service at 10,000. Once we get him to agree not to behead us, he asks why he should pay 10,000 Darseks for something so easily provided. His point, although described in more base terms by him: Time and effort have a role in determining value.

It is obvious that the suspension of the laws of timekeeping would have disastrous consequences for the legal market. To be clear, our logic is not dictating that effort equals value, only that it can play a role in determining value. Logic does dictate that time and effort drives the cost of knowledge workers. So in the end, however a client values a piece of legal work, the time and effort required to deliver that service will play a role in determining the profitability of the work.

Now … a dialog on how the amount of time and effort can be reduced might be suggested as the next logical conversation in pursuing a profitable practice. For that, we should turn to Dan Aykroyd.

Image [cc] origamidon

After I wrote the post last week on de facto embedded librarians, I started getting comments in from my friend Colleen Cable arguing that we shouldn’t settle for de facto librarians in law firm practice groups, but instead we should be pushing for real live librarians in every practice group. Initially, I thought Colleen had misunderstood my concept of de facto embedded librarians (attempting to “make due” with existing resources) but after hammering back at me a couple of times, I began to see that she was attempting to tell me something that I’ve heard before: “Why Would You Limit Yourself To That?”

I still think my idea has merit (as Denise Pagh verified last night!), I can still see the point of not wanting to limit the idea of what is possible. Since we are all about asking the hard questions here on 3 Geeks, what would be better for a law firm in the long run? A common situation where there is one qualified library researcher for every 75-100 lawyers? Or, where there is a qualified library researcher for each practice group within the law firm? If we could start over from scratch, which would better serve the strategic goals of the law firm?

Reality and tradition may smack this idea down, but it is an idea worth asking. Imagine that each practice group had a librarian embedded in the group that understood both the goals of the group and the resources (internal and external) available to help the group reach those goals. Imagine a law firm where the library researchers came together to discuss their individual practice group needs, and then pooled their resources together to create a wealth of resources all while negotiating on behalf of the firm to keep the costs of these resources affordable, reducing duplication of resources, training attorneys and staff on those resources, and identifying the best resources that fit the overall need of the practice group and the firm.

I know, I know, I can hear all the mumbling coming from the other side of this argument… “let’s get back to reality…”  “this is how we have always done it…” “no need to rock the boat…” “we can’t touch that sacred cow…” “it would never work at my law firm…” “no one would be willing to take that risk…” etc., etc.

Perhaps all those people need to be challenged as I was by Colleen and fire back at the obvious reaction with our own version of:

Why Would You Limit Your Firm To That?

Really. Why would you?

Mary Abraham, KM blogger and Queen of Alternative Presentation Formats (APF) approached me about putting together something unique for the 2012 ILTA Conference. With the assistance of Geek #1 and our traditional 3 Beer Solution approach I came up with a fun idea. The session would be a mock fee negotiation between a law firm and a client. We would ‘lift our skirts’ and show the audience what goes on when law firms and clients talk about fees to give attendees a richer understanding of the challenges and hopefully some ideas for how they can help support the process. Mary loved the idea but added a twist: Involve the audience.

To accomplish this we would set up the room with two separated groups of chairs. During negotiations, we would halt the conversation and then each side of the room would become either the ‘client team’ or the ‘law firm team.’ Audience members would give input on what they thought was important and how we might approach the next stage of the negotiation.

Now we just needed two willing victims to serve as law firm and client. As you might guess, I took on the role of the law firm. And having crossed paths with the impressive and delightful Lisa Girmscheid at Rockwell Automation, I convinced her to join me.

The prep calls with Lisa alone were worth the whole effort. Our conversations were both enlightening and enjoyable. She had a number of actual fee deals (minus the numbers) she used in past presentations to work from. So we sketched out the basic factors for each deal and even had one we designated to ‘go bad’ resulting in a lost deal. In total we had four deals, with the fourth one serving as a back-up, in case we made it through the first three. The session was set for 90 minutes, which is fairly long for a presentation.

We barely made it through the first deal.

First off – the audience was completely engaged. In some respects it was fun to watch how quickly some law firm AFA people were able to take on a client persona. People were tossing out all kinds of creative and interesting ideas for how we could make this work. For someone who does this for a living, I actually learned a number of valuable lessons from that interaction.

With people fully vested in their positions it was great to see how the whole group became focused on success. I know I continually hammer on the need for clients and law firms to have conversations about fees, but to witness it in such a dynamic environment was bliss. And the result was definitely success. From the law firm side, we obtained a deal we could live with, even though we knew it would challenge us to be significantly more efficient. From the client side, they seemed quite pleased with the savings and partnering arrangement we constructed.

At the end of the session Lisa and I let the group know they had just witnessed a ‘best case scenario,’ with two seasoned professionals and a dedicated group driving a win-win solution.

Afterwards, Lisa and I shared our impressions with each other. We were both struck by how much we had personally learned over and above what we witnessed with the audience’s learning. And we both very much enjoyed the entire experience.

Two Thoughts:
1) Love the APF approach. So, thanks Mary for getting us involved
2) We may have raised the bar too high. Now we’ll have to be extremely creative next year. But hey – with Mary’s help and the 3 Beer Solution, it will all be good.

Image [cc] Seattle University Law Library

We’ve discussed the idea of embedded library researchers on this blog in the past, but as I was having a conversation on alternative ways of promoting the value of library and research services in a firm yesterday, I started wondering if the idea of the “embedded librarian” could be flipped on its head. There are many places where it is just impossible to place librarians within practice groups, but what about embedding library concepts, practices and knowledge within the practice group through someone that is already in that group? In other words, how about turning one qualified member of a practice group into a de facto member of the library?

Within each practice group, there tends to be a “go to” person that knows the ins and outs of where things are located, what resources are available to the group, and tends to answer those group “pardon the interruption” emails that fly about when someone in the group isn’t sure where to find the answer. You can probably go to anyone in the group and ask them who they go to when they are trying to find a resource they’ve used in the past, or who they go to when they need to see if they are citing properly for the court in which they are filing their brief, or who they go to when they want someone to proof what they’ve written. Typically, each group has one… and an opportunity for the library and research team is to determine just exactly who that go to person is. Perhaps it is a paralegal, or a secretary, but it could very well be an associate or even a partner within the group. The key is to find them and start building a relationship.

In building the relationship, you want to determine what are the patterns that show up when other members of the group come to this person for help? Are they the same types of questions, such as, citation, editing, finding previous work, scenarios? What are resources they are using to answer these questions? Do they know all of the different resources that are available through the library’s paid subscriptions or what’s available for free through the Internet or locally available resources? Is there something that could be purchased by the library that would help? Is this person using the resources effectively? Does this person know when he or she is overwhelmed and needs to reach out for help to the library research staff or others within the firm? These are all good questions to ask that will make them an even better go to person, all while establishing the value of the library and research team in assisting them find the right answers, quickly, efficiently, effectively, and with higher quality results.

The key here is to strike a balance of training and assistance, without attempting to upset the culture established within the practice group. It should be viewed as the library coming to show their support to the group and the individual, and not as a power play to pull that research into the library. Quite frankly, most libraries have a large enough workload and wouldn’t want to take on additional tasks that could be handled on the practice group level. My initial thoughts on how to best strike this balance is through informal training and conversations. Once you’ve established who the go to person is, built a relationship, determined the types of issues that they face, and understand what additional resources, guides and training they need, then work with them on their schedule, in a one-to-one style of informal training. Establish a mutual understanding that the library is there to assist them when they need it, and in the end, that you are all on the same team, ready to jump in to solve a mutual problem.

Just as with most project, start small, find champions, communicate, and be willing to adjust according to the needs of the people you are trying to help. Once the relationship is built, it would seem logical that there would be additional rewards that flow from this relationship. One example that I can think of off the top of my head is that the library would have an “in” with this group now. Having that inside person can open up many opportunities for the library and research group. In a way, it would be like having a de facto library researcher embedded in the group. Someone that when they are asked to solve a problem would be able to say “the library showed me this resource that can help us answer this question.” That’s not just a win for the library, it’s a win for that practice group and the firm.

Image [cc] Mike Licht, NotionsCapital.com

Recently Lexis released its findings from a new survey on Non-Billable Hours. Lexis had previously done a survey on Billable Hours and their curiosity lead them to the second one. Both surveys focused on the solo / small firm market with firms of 20 or less lawyers. I was able to talk with some of the Lexis people to get a better sense of what they found.

First they shared an interesting finding: Lawyers spend their non-billable time on practice management and admin tasks. And they do this over and above efforts on client development. Why is this interesting? With all the talk about LegalZoom and threats to the legal market you would think lawyers would be refocusing their efforts, but alas, they are not.

Years back when I did presentations on law practice management 101 I would hammer on the theme of focusing on revenue instead of expenses as the Path to Profitability. All these years later, lawyers still devote too much time to admin tasks. My advice – hire someone to perform these tasks (or outsource it). Your time is worth a lot more than that.

Lexis also shared with me the rankings of which practices have the least amount of non-billable time per day – averaging about two hours. The top three: Insurance Defense, Labor and Litigation. As well, they shared those with the most non-billable time per day – about four hours: Personal Injury, Criminal and Immigration. I then shared my perspective on that list. The practices that ‘waste’ the least amount of time on non-revenue generating activity are those most driven by the billable hour. All three of these ‘efficient’ practices have rate pressures and bill primarily by the hour. The most inefficient practices bill with Alternative Fee Arrangements (AFAs) using contingency and fixed fees.

Now this may appear to be counter-intuitive as you might think AFAs should drive efficiencies, but I think it makes perfect sense. Lawyers wearing a billable yoke around their neck constantly fill the need to respond with billable hours. Those without it are much less compelled.

So I guess the lesson here is that making people’s income subject to them working harder seems to work. Now we just need to help lawyers understand that there is a bigger reward for working smarter.

Which brings me back to where lawyers spend their non-billable time. My advice: If you are a lawyer with two to four hours a day to spend on non-revenue generating activity, spend it engaging clients.

[This experience advanced my appreciation for Jeff Carr’s frustration. He is tired of talking about the need to utilize AFAs. He’s been doing it for years and no one seems to be listening. I’m feeling much the same way. Jeff, Next time we meet – I’m buying.]

The marriage between Bloomberg and BNA seems to be moving right along. Today, Bloomberg Law announced that BNA’s CEO, Greg McCaffery, is now the CEO of Bloomberg Law, taking the place of the retiring Larry Thompson. McCaffery has been at BNA since 1986 where he moved up from staff Editor to COO and then President/CEO. I have enjoyed talking over the years with McCaffery and think he will be a good fit for Bloomberg Law as they attempt to make strides to build market share with the Bloomberg Law product. On a side note, I met Larry Thompson at AALL in Boston back in July. I complimented him on the way Bloomberg and BNA integrated the two products into the Bloomberg Law platform. I’m still amazed at how quickly they migrated the BNA data over, and how few complaints I heard from users on the new platform. Larry Thompson deserves much of the credit for that transition. I wish Larry the best of luck and hope he enjoys retirement.

Here’s the press release from Bloomberg Law that was sent to me by Jill Goodkind.

NEW YORK — Bloomberg today announced that Greg McCaffery has been named Chief Executive Officer of Bloomberg Law, the innovative real-time legal research system from the world leader in data and information services.  McCaffery most recently served as CEO and President of Bloomberg BNA, a wholly-owned subsidiary of Bloomberg.  Bloomberg acquired BNA, the legal and regulatory publishing company, on September 30, 2011.

“Greg McCaffery is a strong, innovative chief executive who has done a stellar job leading BNA,” said Dan Doctoroff, CEO and President of Bloomberg. “He will now play a major role in driving Bloomberg Law.”

As CEO, McCaffery will be responsible for development and execution of strategy and management of day-to-day operations as Bloomberg Law expands its role as a leader in the field of online legal research.  He succeeds Larry Thompson, who is retiring.  McCaffery will continue to report to Beth Mazzeo, Bloomberg’s Global Head of Data Products and the leader of the company’s vertical businesses.

“We are very excited to have Greg leading Bloomberg Law as we focus on the next phase of expansion. Greg brings a 26-year track record of success in building BNA, including the development of a top national sales team,” said Mazzeo.  “We thank Larry Thompson for his hard work and dedication over the past two years and for establishing a strong foundation on which Greg can build.”

Bloomberg Law has revolutionized the legal research industry with a truly integrated platform.  Subscribers have unlimited access to any of the information in the Bloomberg Law system  – from Bloomberg BNA’s legal coverage to Bloomberg’s proprietary news to dockets to primary legal research – as often as they want and whenever they want. Bloomberg Law’s all-inclusive, transparent and predictable pricing means that every user has the same unrestricted, unlimited access to the information in its databases.

“This is a unique opportunity to play a leadership role in the future of the legal research industry,” said McCaffery.  “With the integration of Bloomberg BNA content, we have created a legal information powerhouse in Bloomberg Law that we will continue to grow and expand.  I am incredibly proud to lead Bloomberg Law and its talented professionals into the next phase of its success.”

“I have every confidence that Greg, with the extraordinary experience he has developed in over 25 years at BNA, will provide Bloomberg Law with the dynamic leadership to continue on its successful path,” said Bloomberg Law Chairman Lou Andreozzi. “Already, over the past year, Greg has contributed significantly to that success with the smooth integration of BNA’s content into the Bloomberg Law platform.  We are lucky to have Greg at the helm as we execute the next phase of Bloomberg Law.”

McCaffery began his career at BNA in 1986 and held reporting and editing positions on several BNA publications until 1990, when he was appointed to management. He was elected President and Chief Operating Officer in April 2007. McCaffery was appointed President and Chief Executive Officer of Bloomberg BNA in January 2012.  He holds a Bachelor of Science degree from American University, and has completed course work at the University of London, the California Institute of Technology, and The Wharton School at the University of Pennsylvania.

About Bloomberg Law

Bloomberg Law is the real-time legal research system that integrates innovative search technology, comprehensive legal content, company and market information, and proprietary news all in one place. This collaborative workspace also includes a suite of new tools for more effective legal analysis and more productive client development. Bloomberg Law is the recipient of the 2012 American Association of Law Libraries New Product of the Year Award.  For more information, visit BloombergLaw.com.

About Bloomberg

Bloomberg, the global business and financial information and news leader, gives influential decision makers a critical edge by connecting them to a dynamic network of information, people and ideas. The company’s strength – delivering data, news and analytics through innovative technology, quickly and accurately – is at the core of the Bloomberg Professional service, which provides real time financial information to more than 310,000 subscribers globally. Bloomberg’s enterprise solutions build on the company’s core strength, leveraging technology to allow customers to access, integrate, distribute and manage data and information across organizations more efficiently and effectively. Through Bloomberg Law, Bloomberg Government, Bloomberg New Energy Finance and BNA, the company provides data, news and analytics to decision makers in industries beyond finance. And Bloomberg News, delivered through the Bloomberg Professional service, television, radio, mobile, the Internet and two magazines, Bloomberg Businessweek and Bloomberg Markets, covers the world with more than 2,300 news and multimedia professionals at 146 bureaus in 72 countries. Headquartered in New York, Bloomberg employs more than 15,000 people in 192 locations around the world.

Image [cc] luisvilla

Big hat tip to the Jones McClure Publishing blog, Annotations, for pointing out John Barker’s post on “Algorithmically Assisted Editorial Insight for Professional Publishers.” In it, Barker discusses the well established notion that there is just too much information out there for even sophisticated search engines to digest without giving the searcher thousands, or even hundreds of thousands of results. Information that has been synthesized by expert editors, summarized and indexed properly helps identify the information that is most relevant to the researchers needs. However, the editorial process is just overwhelmed by the amount of information, and the problem is only getting bigger, and as Barker puts it, it only makes it that much “harder for editors to keep up with the flood.”

The suggestion Barker makes is that there is a need for editors to blend their abilities to synthesize findings from the professional literature and adopt algorithms that can make “it easier for editors to determine the most important points in a document.” This process can help “give an editor a head start in creating a meaningful summary that is meaningful to the professional customers.”

However, Barker goes a bit farther and sees potential in exposing the algorithm directly to the professional customer in some “low value” content documents… such as unpublished legal opinions that have no precedential value. Let the algorithms set the topical classification, and let that classification set the search, linking and relevance rankings of those documents. The classification will not be as accurate as a human editor’s classification, but it increases the value of these documents for the researcher through the algorithmic enhancements. It could even be designed to let the human editor know that there are documents that were initially categorized as “low value” that actually may rise to the level that require a human editor’s review.

In a perfect world, every “relevant” professional document would have that human editor’s touch. In the world we live in, Barker suggests “that professional publishers must strike a balance between applying algorithms and editors to content.” Although Barker does not think that it can completely replace the professional editor, as the technology advances, the algorithmic process can assist at higher and higher levels making the results of the human/computer cyborg editor more valuable to the professional researcher.

Toby Brown sat down with Shy Alter on Monday and had a great conversation on where law firms (and clients) are in the transition to Alternative Fee Arrangements (AFAs) versus traditional Billable Hour work. I’ve embedded the video (and it will pick up right as Toby is being introduced. It is a very informative 6 minutes, and is well worth your time regardless of if you know nothing about AFAs, or you’re the expert at your firm. I quickly put together a transcript of the interview, and really enjoyed the part where Toby talked about not doing AFAs or Legal Project Management (LPM) in a vacuum. Have the conversation with the client and find out where they are really wanting to go.

ii3tv on livestream.com. Broadcast Live Free

Transcript (after Shy Alter’s intro)

SA: Toby, thanks for taking the time to join me today.
TB: Happy to be here.

SA: You’ve been on board last year [ILTA TV] and we had a great conversation. You’re out there on the ground dealing with issues related to AFAs, Alternative Fee Arrangements, and even more important, Legal Project Management (LPM), which makes it all happen. Without that, it would be very, very difficult to offer clients a compelling model that actually works, and for the firm to actually remain profitable. Which is very, very important. So, maybe I’ll start with AFAs. To what extent have they actually taken hold? To what extent do you have a higher percentage of matters that deal with some type of an actually AFA model?
TB: I think that’s a good question, and I think you see some of the articles and word on the industry that “no, they’re not here” because not 100% of our deals are AFAs. It’s a constant growth. It just continues and it starts to spread out into all the practices. I’ve been at three AmLaw50 offices in the past year and a half so I have a broader sense of knowledge. If I had to put a number on what I think, at the market level, are “non-hourly,” I’ll call it — we might redefine AFAs here in a minute — fixed fees, and what most people consider to be alternative fees, I’d guess it’s around 20%.

SA: Which is a significant change over the last five years?
TB: Oh, yeah. I would say that five years ago it would have been 5%. Because then you’ve had your long-term, contingency fee work that firms did. So, 5%. It’s been around for a really long time. It’s just been growing and growing.

SA: So, clients are demanding these obviously. That’s always where it’s coming from, and the firms are actually responding. Do you have a sense of whether it is taking hold more in larger firms as opposed to medium or smaller sized firms?
TB: Yes. Definitely more so with larger firms. However, in fact, through ILTA we are forming a group of Alternative Fee and Legal Project Management people, which is growing by leaps and bounds. But, when we tried to reach into the more mid-sized firms, we’ve had a hard time finding people that do this. I know there has to be people that are touching it in some way, but not to the level that larger firms.

SA: What are the most popular modules within AFAs?  There’s all kinds of ways of slicing this one.
TB: In terms of the types of Alternative Fees?
SA: Yes, in terms of the types of Alternative Fees.
TB: You know, I did a presentation about a month ago with a guy that is very well known in the AFA world, Jeff Carr. He is with FMC Technologies which is in my hometown of Houston, and he and I have become good friends. And, he calls it a “Budget with Consequences.” And, I think that is a good way of putting it and it might encapsulate a few different types of AFAs, but that would focus more on a ‘fixed-fee’ or a ‘fee cap’ or some level where you’re saying “I’m buying whatever type of service, and this is the amount I’m going to pay.” I would say that that one is growing. However, I still see quite a mix.

SA: I’m going to jump into the Legal Project Management because I know we are spending more time on it now days. It is kind of the framework that makes AFA’s possible, to a large extent.
TB: Yes. Well, I’m going to redefine AFAs. I’ve defined it as … well, I sort of undefined it and say “What’s not an Alternative Fee?” and that is “Anything where we get to name our rate as a firm bill how many hours we think is appropriate.” — How much of our work is that?? I think a significantly diminishing number. And, so when it comes to the (LPM) Legal Project Management stuff, I see it applying across a very broad spectrum. Because if we’re in, even if you might call it a ‘soft-cap’, and we have a budget and the client has an expectation on it, we have to manage to that number. We can’t go back and say “Oh, whoops! This was twice as much as we thought it was going to be.” The client’s not going to pay that bill. So, Legal Project Management is becoming important in a very broad sense to say “Budgets with Consequences: How do we live by those?”

SA: It is tempting for me to finish this interview by saying “It is really difficult to sell Legal Project Management to law firms, attorneys and lawyers.” But, I’m actually going to flip it around and say it is probably difficult to also get your clients to really, truly understand what it means. Because it’s a two-way street.
TB: Agreed.
SA: What do you do about that?
TB: I think that, just like Alternative Fees, you need to have a conversation with the client about that. Because clients are saying “I want efficiency.” Great. What does that mean? Does it mean fewer hours? Does it mean more technology? Does it mean Project Management? So, I don’t think you do Project Management in a vacuum and then you go back to the client and go “Look, I’ve solved all your problems!” Because that won’t go over well. You need to have the conversation with the client. So, I think that the same concept, AFA to LPM, it’s knowing what your client is really trying to get to.

SA: Toby, thank you so much.
TB: Thank you for having me.

Image [cc] The Marmot

It is so easy to get yourself into a rut. We find comfort in establishing a routine, and then, after a while, we forget to ask ourselves if the routine is still effective. Those email alerts, those saved search results, news feeds, email lists, internal reports, company monitors, and many other things that we’ve become accustomed to seeing (usually entering by way of the email inbox), all add up to a routine that has become irrelevant, but one that is easier to continue than to either modify or stop completely. Routines that become irrelevant but cannot be changed are wasting your time, your co-worker’s time, your firm’s resources and money.

About eight years ago, I worked at a Library Consortium that required all of its employees to take a minimum of five consecutive business days off each year. There were a number of reasons for that, but one of the primary reasons was to determine if we were relying too heavily on one person to complete certain tasks. One result of this requirement was that someone else had to come in and pick up your routine for that week. That meant that you had to create a manual of the tasks you were performing and get someone up to speed before you went on vacation to handle those tasks. That, in and of itself, made you evaluate the routine tasks you were performing and helped determine if it still had the same effect it had when you started the task. Many times at the end of the forced vacation the person that took on your routine would follow up with you and ask, “why are you doing this task this way??” The results of reevaluating your routine tasks, having someone do those tasks for a short period, and then having a conversation at the end, allowed you to make an informed decision on if you needed to change that task, stop doing the task, or reaffirm that the task had value.

Think about the number of tasks you perform, or your staff performs each month. How long has it been since you’ve sat down and outlined what the tasks are, how they are performed, who performs them, who gets the results, and what the overall effect is of performing the task? If you don’t have some type of mechanism that forces you and your staff to evaluate these tasks, you could have processes that people are performing that haven’t been effective for years… yet no one thinks about it because it has just become a comfortable part of their overall routine. In reality, they’ve found themselves in a rut, but just haven’t figured it out yet.

For the law firm library, the easiest rut to find yourself in is the “monitoring” rut. It is also one of the easiest to evaluate if it is still effective. Take a percentage of those canned searches you perform through your news aggregator, docket searches, or company searches and talk with the people that are the recipients of these results. Ask a very direct question: “Do you actually read these reports?” or “Do you have a filter in your email that automatically sends these reports to a folder? Is it the ‘Deleted Items’ folder?” or “When was the last time that you actually were able to use information in these reports that ended up with a positive effect on your practice?” Most of the time you may end up continue along on your happy way with this routine. However, I bet that there are a number of these processes that you do that are completely ignored by the person that asked for them in the first place, it is that they have simply forgot to tell you that they no longer need them.

Routines are easy to get into and hard to get out of. If you never stop and ask yourself “Now, why am I still doing this?” You’ll end up doing it for far longer than is really needed.