95 posts categorized "Alternative Fee Arrangements"

January 14, 2015

Sample statement of work for an M&A matter

A guest post by Sverre Tyrhaug

Background:  Sverre Tyrhaug is the Managing Partner of Thommessen, the largest law firm in Norway.  He is one of five individuals from the firm who are currently completing our Certified Legal Project Manager Program®.  This is the second of three blog posts based on his answers to essay questions from the program.

A statement of work should include the goal of the project, the client’s expectations in terms of the outcome and the deliverables.  It is important that the statement of work establishes a clear understanding with the client on what we are to deliver to meet the client’s expectations, deadlines and milestones and our budget or fee estimate (with relevant assumptions). Since our legal advice is often one of several deliveries in a larger project (requiring input from other advisors and also the client’s internal resources), it is also important that the statement of work is clear on who is doing what on an organizational level.

Below is a sample statement of work for a private M&A project.

We understand that the scope of the Engagement is to assist you with your proposed acquisition of 100% of the Norwegian entity TargetCompany Ltd (the “Target”). The Target is located in Norway, with 50 people in one location being Ostfold County and has annual sales of approximately NOK (Norwegian Krone) 100 million.  (Note to US readers: This would be equal to about $13.5 million US$.)  The Target has a subsidiary in Sweden (acquired one year ago) with annual external sales of around NOK 50 million. The parties have reached agreement on price of NOK 150 million.  The parties are targeting signing the Letter of Intent first week of September with completion of the due diligence and final transaction documents in mid November.

Based on the description of the matter set out above and the further clarifications and assumptions set out below, we are willing to offer a fixed fee on this matter in the amount of NOK 1 million (exclusive of VAT, if applicable).

Our assistance will include the following activities:

  • We will assist with reviewing and commenting on the proposed letter of intent for the transaction.
  • We will assist on the legal due diligence of the Target.
    • This assistance will be limited to the corporate documentation of the Norwegian entity and any other documents and agreements governed by Norwegian law.
    • We will provide a legal due diligence report in “red flag” format, describing issues that are deemed as material to the transaction or of relevance to the transaction documents.
  • We will prepare the share purchase agreement (“SPA”) and assist in the negotiation of such agreement. We understand that it has been communicated to the sellers that the SPA needs to include extensive representations and warranties, and that this has been accepted in principle as part of the agreement.  We also understand that you have reached agreement on price.
  • We will assist with the closing of the transaction, being the transfer of the shares in the Target against payment.

The fixed price has been based on the following further assumptions:

  • The negotiations will take place in Oslo, and all transaction documents will be reviewed and revised in no more than three “turns” of drafts.
  • The final transaction documents will be executed by the end of November.
  • The fixed price does not include due diligence beyond two weeks.
  • The fixed price does not include tax or VAT due diligence or tax advice with respect to the transactions. We are, however, happy to extend our assistance to also cover tax and duties at your request.
  • The Target does not have any material or significant legal or regulatory issues that will require extensive additional due diligence or significant changes to the transaction structure.
  • The fixed price does not cover transitional or other post closing agreements, such as revision of employment agreements, redundancy projects, transition/migration of IT services and business date or similar issues.

We generally invoice our clients on a monthly basis. In this matter, under a fixed price, we propose that we split the invoice in three equal payments with invoicing in October, November and December (or at closing if earlier).

The majority of the work will be undertaken by managing associate Mr. Lawyer, with the undersigned as the lawyer responsible for overall supervision and who will also be actively involved in the Engagement. Both core team members have extensive experience within M&A. To the extent we find it necessary, additional lawyers will be assigned to the Engagement.

 

December 26, 2014

Bloomberg interview regarding my new book (Part 2 of 2)

This interview originally appeared in Bloomberg BNA’s Corporate Counsel Weekly.  A pdf of the complete interview can be downloaded from our web page.

Bloomberg BNA: Can in-house counsel help law firms become more efficient?

Jim Hassett: Absolutely. Many law departments need to become more efficient themselves if they expect their firms to deliver better service. A few years ago, an AmLaw 100 Chairman I interviewed for an earlier research report (The LegalBizDev Survey of Alternative Fees) noted that “It is very difficult for a law firm to tell a client that a matter is not going well because of what is going on in the legal department. I think we’ve all had experiences over the years with in-house counsel who are not good managers… [This] can increase cost and reduce the quality of outcomes.” Another participant echoed this theme when he described some problems he was having with a very large client but noted, “I am reluctant to tell [the GC] that his own people cause a fair amount of inefficiency, because he’s not going to want to hear it.”

My new book lists the top three things clients should do to increase value:

  1. Define objectives and scope at the beginning of each matter
  2. Increase transparency about client needs
  3. Improve in-house project management

As one chair summed it up, “Clients have to jointly work with us to figure out what it is they want us to do less of in order to meet their expense goals. You can’t do scorched-earth approaches to matters at reduced fees.”

Bloomberg BNA: How are new staff roles contributing to profitability?

Jim Hassett: In 2012, Jonathan Groner and I wrote an article for Bloomberg Law Reports entitled “The Rise of the Pricing Director.”  At that time, despite extensive networking, we were able to find only a handful of people who held the title of pricing director in a law firm or performed that function. Law firms generally move a little slower than glaciers, but the growth in pricing directors in the two years since has been meteoric. According to a 2014 survey by ALM Legal Intelligence, “Seventy-six percent of big firms now employ some sort of pricing officer. And these positions are in the midst of a remarkable growth spurt.”

With 20/20 hindsight, it is easy to see the reason for the rapid growth of the pricing director title and function. The well-documented changes in the legal profession over the last few years have placed intense pressure on profits. It is therefore not surprising that a new host of high-level executives has emerged to help law firms set their prices in a way that will help them to maintain profitability.

Many firms agreed on the value of hiring people with business backgrounds and empowering them to use their skills to help lawyers make crucial decisions on pricing and efficiency. As one managing partner put it: “I think what’s had the greatest positive effect is our business managers. They can much more impartially sit down and analyze profitability. They build up a database of what it costs us to do things, and they’re just invaluable. They work with enough lawyers that they’re able to focus on the numbers and their minds work differently… These non-lawyers are focusing on the business side of the equation and what it costs to do things, pushing back and helping lawyers have a little bit of backbone. They can now show them a model and say, ‘No, that’s too low, you’re going to lose your shirt.’”

Bloomberg BNA: Is profits-per-partner a good metric to measure a law firm’s influence?

Jim Hassett: In my opinion, it is definitely over-emphasized. Unfortunately, when lawyers talk about profit, many think first and foremost about profits per equity partner, the figure publicized in the American Lawyer annual rankings of the top 200 firms. This is widely perceived as a sign of financial health and sometimes used to recruit laterals to higher profit firms. It is also misleading.

In any other business, profits are defined as the revenue that is left over after all expenses have been paid. In the law, partner salaries come out of the “partner profits” pool. In a law firm, if there were no partner profits, partners would be paid nothing for their work. This leads to considerable confusion. For example, one managing partner in our study said: “As a partnership, everything we make above our cost is profit. I once had a lawyer who stood up and said, ‘How did we lose money this month?’ I said, ‘We didn’t lose money, we just didn’t make as much money as we would have liked.’ It’s very hard for a law firm to lose money, that is, be in a situation where you’re not paying your partners anything.”

In other businesses, companies analyze which product lines and groups are most profitable, and they act on that information by fixing or discontinuing unprofitable products or people. In law firms, the focus on total profits per partner distracts people from one of the most critical questions in today’s competitive legal marketplace: which matters, practices, partners, and offices make money and which don’t?

If that’s not bad enough, there are a number of other problems with these figures, starting with the fact that they are not audited. An August 22, 2011, ABA Journal article by Debra Cassens Weiss reported that “More than half of the nation’s top 50 law firms could be overstating profits per partner to the American Lawyer magazine… An analysis by Citi Private Bank Law Firm Group reportedly found that 22 percent of the top 50 firms overstated profits per partner by more than 20 percent in 2010. Another 16 percent inflated partner profits by 10 to 20 percent, and 15 percent boosted partner profits by 5 percent to 10 percent.”

Bloomberg BNA: Will the legal market ever “bounce back” from the recession, or do law firm partners now need to learn how to excel in a totally different environment?

Jim Hassett: Most of the people we interviewed believe that the world has permanently changed, like the managing partner who said: “The way law firms deliver legal services to clients is undergoing a huge revolution. It’s going to change before our eyes in the course of a very short period of time. And it’s all being driven by clients who want to get value for their money.”

As the chair of another firm summed it up: “I believe that we’re still in the beginning of the process. There are a number of famous economists who have talked about disruptive technologies and disruptive business processes. I think there’s a lot of evidence out there that this profession is being subjected to those pressures. Five years from now, if I turn out to be wrong, that will be great. But if I’m right, then I have to believe that those firms that adapt more quickly will have a competitive advantage, because the firms that don’t adapt quickly enough will be out of business.”

Adapted with permission from Corporate Counsel Weekly Newsletter Vol. 29, No.48, December 10, 22014. Copyright 2014, The Bureau of National Affairs, Inc. (800-372-1033) www.bna.com.

 

December 10, 2014

Book excerpt: The challenge of measuring law firm profitability (Part 3 of 3)

This series was adapted from my new book Client Value and Law Firm Profitability.

The questions about assumptions raised in Part 2 of this series go on and on, and they raise the kind of awkward issues that sow resentments and dissension. As one partner interviewed for and article by Michael Roster noted:

Many of us have long believed that the non-attorney costs of the various practice groups are wildly different. At most firms, no one wants to hear that, probably because it might open Pandora’s Box.

Some experts believe that this box should be opened, and when it is it will reveal that different practice groups can afford to charge different rates. One expert we consulted, who preferred to remain anonymous, put it this way:

Cost accounting should be kept very simple lest the lawyers argue about it forever more. That said, it should not be the same for the higher cost of production groups that need a lot of work rooms, support services, etc. (such as litigation) versus the very low cost of production groups that can work in a cubicle and only occasionally might need a conference room (such as trusts and estates). GM charges a lot less for a Chevrolet than for a Cadillac, and yet the overall Chevrolet division may be far more profitable that the overall Cadillac division.

Others disagree and feel that analyses that compare relative costs will become divisive by focusing lawyers on their short-term individual interests rather than the long-term benefits of working together. The labor and employment group may come to question the wisdom of belonging to the same firm as the M&A group that needs more expensive space. Lawyers from the Cincinnati office may begin to ask whether it is really worth having a New York office with much higher overhead.

To explore the real-world solutions that law firms are using most often, we interviewed two of the leading consultants in the field: Russ Haskin, director of consulting services at Aderant Redwood Analytics and Jeff Suhr, vice president of products at Data Fusion Technologies/Intellistat.

According to Haskin:

If a firm has hired a pricing director but does not look carefully at profitability in a sophisticated way, it is doomed to fail.

Haskin said that very few large firms do more than pay lip service to the concept of profit margin—and those that do are far ahead of the game. Among other things, they are ready to respond to AFA proposals in a way that will be profitable for them. A firm that looks at profitability in the “old” way by examining gross revenue rather than profit margin as seen at the client or engagement level is simply not equipped to respond intelligently to an AFA request.

Both consultants agreed that the key to success is to simplify assumptions, and one way to do that is to look at gross margin (revenue minus direct costs). Suhr argued that at the matter level, gross margin is a better measure than any that includes overhead because issues like office space can’t be controlled at the matter level.

Haskin suggested that to simplify the cost analysis, the firm should allocate a standard cost rate to each lawyer or group of lawyers, for all clients, like the senior partner we interviewed who said:

We have a model that takes into account cost not based upon actual draws or salary, but it takes into account junior associate, mid-level associate, senior associate, junior partner, partner, and senior partner typical costs.

At the end of the day, there is a reason why Data Fusion’s 91 clients use 91 somewhat different methods to measure profitability. Companies like Data Fusion and Aderant Redwood work with each client to come up with a consistent approach that has grass-roots support within each firm.

As John Iezzi summed it up at the end of a chapter on cost accounting:

The subject of profitability at [the matter] level is one that is very difficult to grasp for those not fully versed in cost-accounting concepts. Whatever methodology is used, it should be agreed to by a consensus of the partners so that the results are accepted once the methodology is applied.… Make certain that everyone buys into how the process is going to be done, and more importantly, why it is being done and what decisions will be made from the information once the analysis is completed.

Jeff Suhr made a similar point more succinctly:

The right way to measure profitability is one that is accepted in your firm. The art is to measure it in a way that keeps everybody happy.

And as one managing partner in this study summed it up:

You can argue all day about what the right profitability metrics are or what you’d include. We argue about it a lot.

Many participants, like this senior executive, think that the cure is worse than the disease and that firms should stick to more traditional measures:

We’ve used realization as a surrogate for profitability to this point. True profitability has been reserved for senior management analysis. We haven’t wanted lawyers arguing about indirect allocations and whether they only use 10% of a legal administrative assistant’s time versus 33%.

The profession may never find the perfect solution that some lawyers seem to want, but less than perfect estimates are absolutely essential in helping firms adapt to a rapidly changing world.

A slightly edited version of this series was published in the October 2014 issue of Of Counsel:  The Legal and Management Report by Aspen publishers.  The complete article can be downloaded from our web page

 

December 03, 2014

Tip of the month: Tie compensation to results

In 2011, I quoted managing partner Joe Morford about Tucker Ellis’ philosophy of compensation “If you pay for hours you get hours, and if you pay for results you get results.”  Since then, the vast majority of firms have done little or nothing to adapt their compensation to client demands for better results in fewer hours.  But a major step was taken a few weeks ago when Jackson Lewis announced that associates will no longer be compensated for billing more hours, and will instead be rewarded based on factors tied to results such as efficiency and client service.  Other firms are sure to follow.

 

The first Wednesday of every month is devoted to a short and simple tip to help lawyers increase efficiency, provide greater value to their clients and/or develop new business. The relationship between compensation and profitability is discussed in my new book Client Value and Law Firm Profitability

 

November 26, 2014

Book excerpt: The challenge of measuring law firm profitability (Part 2 of 3)

This series was adapted from my new book Client Value and Law Firm Profitability.

At the 2014 LMA P3 conference in Chicago, Jeff Suhr, vice president of products at Data Fusion, noted that his company currently has 91 clients actively using their tools, including 10 of the top 35 AmLaw firms. Exactly how do these 91 clients calculate profitability? Ninety-one different ways. The fundamentals are the same, but there are important differences in the details, which can have significant implications for the way profitability is interpreted and used to motivate changes in behavior.

Suhr distinguished between the relatively straightforward science of calculating profitability and the art of determining the exact methods that best fit the needs of each firm. He also discussed the different challenges of “macro strategies” for analyzing profits for a firm, an office, or a practice group, vs. “micro strategies” for analyzing a book of business or a particular matter. These sometimes require different assumptions and different approaches.

For starters, you would think it would be easy to measure the revenue associated with a matter, but it’s not. Iezzi’s text notes that:

There are three different revenue numbers you can use. One is the accrual basis revenue number, which is hours worked multiplied by hourly rate. The second is the bills rendered number. And third is the cash receipts number.

The first two numbers reflect theoretical revenue. After client write-offs and write-downs, a significant amount of this may never be received. So a profitability system based on either accrual or bills rendered rewards lawyers for putting in more hours even if they produce no revenue. This is particularly troublesome with fixed fees and other AFAs, where lawyers with too little to do may pile on the hours “since it costs nothing and could help the client relationship.” Not to mention that in many firms attorneys get paid more if they bill more hours, whether the client ever writes a check for the hours or not.

In the LegalBizDev Survey of Alternative Fees, one AmLaw 100 decision maker told us that:

It often happens that alternative fee matters, particularly large ones, end up being adumping ground for individuals who may not be fully employed because you are reportable to the client for the result, not the cost. When lawyers work unnecessarily on a project your profitability looks bad, so in order to really determine the profitability, we need to deal with that issue.

As one chair in this research put it:

What you’re trying to do internally is change the mindset of the attorney who is used to billing hours. In the past, if you billed 2,000 hours, you were better than somebody who billed 1,200 hours. But with an AFA, you have to be more efficient and more concerned with delivering the value to the client in a way that makes this a productive relationship.

That’s why the best measures of profitability must ultimately be tied to cash received. But there’s no way of knowing that figure until a matter is completed and the bills are paid. In a large firm with tens of thousands of simultaneous matters, each on their own schedule, comparisons between matters must be based on a long list of assumptions about what will happen in the future, or postponed until the end of a case, which could take years to resolve. And this can lead to arguments and gamesmanship.

One senior executive at a firm that bases compensation partly on accrual-based profitability highlighted one such problem:

We use dashboard tools including Redwood Analytics and Intellistat to track key metrics and responsibilities for each attorney as a working, billing, and originating attorney. This information is directly used in each person’s annual review and compensation setting, along with qualitative and subjective elements. They have visibility to this key information every day, and it begets a whole different sense of responsibility and accountability.

Determining cost is even harder. In order to truly determine the cost of delivering services for a particular matter, one must answer two basic questions: what was the cost of the direct labor of performing the work, and what overhead indirect costs (such as rent, clerical staff, etc.) should be allocated to that particular matter?

The problems start with how to estimate the cost of each hour of a partner’s time. If a rainmaker partner was paid $1 million last year, how much of that was her direct cost for working on legal matters vs. origination fees, payment for time spent on management, profit distribution, and other factors? A number of different systems of “notional compensation” are used to split compensation between the amount allocated to billable activity and the amount allocated to everything else. The details of how to do this could easily go on for many pages, but in this context the most important fact is that every single system includes arguable assumptions. And if there is one thing that lawyers do well, it is argue, especially if a calculation affects the way their financial results are perceived. And if matter profitability is tied to compensation and perhaps even to job stability, the debates on how to calculate these figures will rapidly get louder and more passionate.

If you think that since associates are on salary, it would be easier to calculate their direct costs, you’d be right. But even there, important decisions must be made. For example, suppose two mid-level associates earn the same $300,000 salary, but Associate A billed 2,000 hours last year and Associate B billed 1,500 hours. To keep this example relatively simple, we will ignore the cost of their health insurance and other benefits and focus strictly on salary. Some firms say that the direct cost of Associate A is $150 per hour ($300,000 divided by the 2,000 hours she billed) while Associate B is more expensive at $200 per hour ($300,000 divided by her 1,500 billable hours).

Now suppose that relationship partners are rewarded for managing matters more profitably. Of course they will try to assign more work to the busy $150 per hour associate than to the $200 per hour associate who has more time available. In this case, the attempt to measure profitability to develop a more efficient system rewards behavior that is actually likely to reduce efficiency by overworking the busiest associates.

Discussions of other aspects of overhead can also get into heated debates about such details as:

  • If one practice group heavily uses the services of the marketing department and another doesn’t, should the first group pay more marketing expenses through higher overhead?
  • If one lawyer has office space in a high-cost city like New York, and another has an office in a lower-cost city like Cincinnati, do they have different overhead rates?
  • If one lawyer in New York has a 600-square-foot office and another has a 300-square-foot office, should that be reflected in different overhead rates?
  • If one lawyer’s assistant makes more than another’s, should that be reflected in their personal overhead?

 

A slightly edited version of this series was published in the October 2014 issue of Of Counsel: The Legal and Management Report by Aspen publishers.  The complete article can be downloaded from our web page. 

 

November 19, 2014

Book excerpt: The challenge of measuring law firm profitability (Part 1 of 3)

This series was adapted from my new book Client Value and Law Firm Profitability.

Based on our confidential interviews with managing partners and other leaders from 50 AmLaw 200 firms, there can be no question thatclients are demanding more value than ever before, and it is putting pressure on the bottom line.  There is, however, much less agreement about the best way to measure the bottom line.  Earlier in this chapter, we discussed the many problems of relying on profits per equity partner, realization, leverage and other traditional measures.  So it may seem obvious that the way out of all this confusion is to move toward the approach used in almost every other business: applying cost accounting to measure profit. The basic formula looks deceptively simple:

Profit = Revenue – Cost

Cost accounting establishes rules for defining both revenue and costs, but it’s not as simple as non-CPAs might think.

Before we started working with law firms, my company spent almost 20 years developing training programs for financial services clients and for government agencies. Many of the government contracts we worked under were “cost plus,” in which an hour of a person’s time must be billed at its “true cost,”—as defined by many pages of government accounting rules—plus a negotiated fixed fee.  (In our experience, the negotiated fixed fee on government contracts was typically between three and five percent of cost, which seems laughable by the standards of many law firms.)  So you’d think that if anyone could identify the true cost of labor, it would be a government contractor.

But we gradually learned that government contractors have a number of options for calculating both the direct cost of what a person is paid per hour and allocating the indirect costs of benefits, rent, general and administrative overhead, and so on, to different groups within the company. So there was no single number for the “true cost” of a particular hour of labor, despite all the rules and regulations. The answer depended on a number of assumptions and interpretations.

Still, many law firms see cost accounting measurement of profit as the Holy Grail, with potential benefits to both themselves and their clients. As ACC Value Co-Chair Michael Roster has summed it up:

Once a firm or practice group shifts to a true profitability set of measurements, the firm finally has incentives to:

  • Keep reducing its cost of production—meaning moving matters to those with appropriate expertise while lowering leverage and hourly rates, where hourly rates are now used to monitor the cost of production, not how to maximize what can be billed
  • Measure and deliver better outcomes and be rewarded for that
  • Learn how to fix the cost of any given type of work
  • Along the way, improve profitability

However, in one leading text on law firm accounting, CPA John Iezzi explained that in working with law firms, he learned that this is much, much harder than it sounds:

My first article [on law firm profitability was]… written in 1975… after I had recently left public accounting, convinced that one could apply the same cost-accounting techniques to the service profession as one did to any other industry. [However], this was not the case, as I later determined once I began attempting to apply various cost-accounting practices to the legal profession.

The result for many firms is that, as one managing partner admitted:

We struggle with a standard profitability model, and we don’t really have one right now.

Another managing partner pointed out the underlying problem:

There’s really more art than science as to what you count as revenue, and similarly what the cost allocations are going to be. Lawyers will debate all day long about those things. So it’s important to have uniform or reasonably well-accepted best practices for profitability analysis. I don’t think our practice is there yet.

As far as we can tell, neither is anyone else. When I talked to several members of our Research Advisory Board about this, Don Ware, chair of Foley Hoag’s Intellectual Property Department, said:

I’ve never heard of a law firm that has a good way to measure matter profitability. Many say they do, but when you push on the details it becomes clear that they really don’t.

This is not for lack of trying. A growing number of software programs are available to handle the calculations. The two long-time leaders in the field—Intellistat Analytics from Data Fusion and Redwood Analytics from Aderant—have been providing sophisticated tools to quantify law firm profitability for several decades. But to use these tools, one must make a series of assumptions, and that’s where the trouble starts.

A slightly edited version of this series was published in the October 2014 issue of Of Counsel:  The Legal and Management Report by Aspen publishers.  The complete article can be downloaded from our web page

November 12, 2014

What clients want: New results from Altman Weil’s 2014 CLO survey

Question:  What is the single most important topic for law firms to focus on in today’s increasingly challenging environment?

Answer:  Whatever clients want.

Of course, different clients want different things, so lawyers should start by improving the dialog with their own clients.  There are a variety of free resources on the web to help structure these conversations, including a list of questions from the Association of Corporate Counsel and my posts several years ago in this blog entitled Value questions to ask your top clients

For those who want the big picture on client trends, there is no better source than the Chief Legal Officer Survey which Altman Weil has been publishing for the last 15 years.  (Full disclosure: LegalBizDev is a strategic alliance partner of Altman Weil, but I would have written exactly this same post even if we had no relationship with them.) 

When the 2014 survey was released yesterday by author Daniel J. DiLucchio, the first question I turned to was on page 27: “Of the following service improvements and innovations, please select the three that you would most like to see from your outside counsel.”  The answers from 186 CLOs were greater cost reduction (58%), more efficient project management (57%) and improved budget forecasting (57%). 

Since better legal project management (LPM) leads to cost reductions and to improved budget forecasting, you could say that the top three client requests were LPM, LPM, and more LPM.  Interestingly, these same three issues were at the top of the list in Altman Weil’s CLO survey last year although this year the percentages were a few points higher.

The main conclusion of this year’s report was that “corporate law departments are wielding their buying power to drive down expenditures on outside counsel” (page i.)

The survey included a number of questions related to cost reduction, starting with the fact that 91% of the law departments in this survey received price reductions from outside counsel in the last12 months.  The median discount – or halfway point -- remained in the 6% to 10% range, just where it was in the 2013 survey.  But for those above the median, the percent of law departments that got discounts over 10% increased substantially in the last year (from 28% to 36%).

The summary also noted that “The survey asked about preferences for outside counsel pricing on work other than ‘bet the company’ matters. Thirty-seven percent of CLOs said they prefer transparent pricing in which they understand how and why the price is set and have the opportunity to discuss changes. Twenty-seven percent chose guaranteed pricing, and 26% opted for value-based pricing, defined as a variable price based on the CLO’s assessment of value received. Only 10% of respondents said they wanted the lowest price available.  Initially it may seem that law departments just want to pay less for outside counsel. But these results show it’s more complicated.” (page ii)

I respectfully disagree with this interpretation.  I don’t think it’s that complicated at all.

Cost is certainly not the only element in value, but it is by far the biggest one.  In our recent research on Client Value and Law Firm Profitability, when we asked, “When your clients ask for more value, roughly what percent of the time are they simply asking for a lower price,” the average response was 63%. In other words, nearly two-thirds of the time, “value” is nothing more than a request to pay less and all other interpretations pale by comparison. 

In our experience, all of the pricing approaches mentioned in the Altman Weil survey – transparent, guaranteed, and value-based – are not alternatives to lower prices, they are usually part of a larger negotiation to reduce price.  Soon after clients ask for transparent pricing, the next thing that happens is that they point to line by line examples of ways to cut the price.  When they want a guaranteed price, it may come as a result of a reverse auction in which all bidders are required to guarantee a price, and the lowest price wins.  And when clients look for “value pricing,” somehow that almost always seems to mean “give us more for less.” 

Meanwhile, the demand for outside counsel is going down (26% plan to decrease the use of outside counsel while only 14% plan to increase it), placing still more downward pressure on prices.

What are firms doing in this increasingly cutthroat environment?  Some are burying their heads in the sand in the hope that the good old days will return.  Some are giving bigger and bigger hourly discounts in the kind of “suicide pricing” that Bruce MacEwen has described as unsustainable in his book Growth is Dead. And some are getting serious about increasing efficiency and cost-effectiveness through LPM, so they can deliver the same quality at a lower cost in hours and dollars.

Which approach makes sense to you?

October 22, 2014

Book excerpt: What should law firms do to improve profitability and LPM? (Part 4 of 4)

This series was adapted from my new book Client Value and Law Firm Profitability, which was published at the beginning of this month.

Given all the options and competing claims about LPM, what should a firm do to get started? Our answer is explained below at the end of this book: embrace experimentation and, as one of our clients put it, “just do something.” Start small, and find out what works for your firm.

Once you have grassroots support from influential internal champions, then you will be in a position to decide whether you might benefit from professional project management staff, depending on the unique needs of your practice area and your clients.

Remember that in this study’s ranking of LPM issues in Chapter 4, the two most critical were defining scope and communicating with clients. Neither can be delegated to project managers. Lawyers must first be committed to changing their approach before it makes sense to hire others to help them.

The big picture recommendations in the next section about starting “one practice group or lawyer at a time” include evidence that the development of internal champions and quick wins has proven its value in changing behavior in a wide variety of professions. So it is not surprising that a number of participants in this research cited the same approach:

I try to find an internal champion to move things forward. I worked with a partner in one department that bought into LPM and we gave a joint presentation on it. Word got out and another department asked to provide the same presentation to them. Many times once attorneys get a taste of LPM they get interested and want more. – Senior executive

We’ll have to have to have some guinea pig partners who are willing to try it and then be willing to testify as to how it has helped their numbers and their client relationships. – Senior partner

Because we’ve had some demonstrable LPM successes, enthusiasm for it is growing. – Senior executive

However, even with the support of champions, LPM is not quick or easy to implement. As one senior partner emphasized, there are no magic solutions:

Top management has to make it a priority and communicate it all the time, make it part of the culture. It will have to be ingrained in people, and it’s slow. When people use the tools and the resources, and they are successful, they will communicate their success to their partners. Others will want to use it, and LPM will work its way around. But that will take some time. We don’t know exactly how long it will take.

Some firms will find it valuable to hire professional project managers to support lawyers’ efforts, as in this quote from one chair:

We’re going to start hiring different people to manage the non-legal aspects of the practice, not the relationships. That’s what has to be done. Lawyers are notoriously bad managers. You could be a fabulous trial lawyer but not be able to get your hours in on time or bill on time. You might not be able to collect on the bill. With all these different components, it’s better to look to a project manager on accounts receivable, on AFAs, on collections, rather than the lawyer.

Another firm chair that has gone down this path has been very satisfied with the results:

I think that project management skills are absolutely critical to achieving value and managing well, which is why we have people who actually make this their life’s calling. People who are certified project managers, who are trained in it, who actually know what it means when you talk about Agile Scrum, as opposed to somebody thinking it’s a flexible rugby player. Project management is a profession, and the people in the profession need to understand how the legal business works, how lawyers think. How you would manage a project at IBM is not the same way you would manage a project in a large law firm. But when we have good project managers working as part of the client service delivery team with the clients, clients love it. They just love it. It adds so much value, it’s unbelievable.

(Agile Scrum is an approach to project management that starts from the assumption that customers often change their minds about what they want and need as a project proceeds. It therefore replaces extended upfront planning with rapid development of partial solutions which can be tried out on clients and adapted until they meet true needs. Many professionals believe that this will become an increasingly common approach to LPM as it evolves.)

There can be little doubt that the trend of using LPM professionals will continue to grow, especially in large firms. It is also safe to predict that the level of LPM sophistication needed to compete effectively will continue to increase.

In the next few years, the most interesting developments in LPM are likely to involve moving away from traditional project management models to cutting edge alternatives. For example, in one of the most widely quoted texts on LPM, Robert Wysocki talks at length about how traditional project management solutions apply only when the client’s goal is clear and the steps required for a solution are clear. In many legal matters, neither precise client goals nor complete solutions are known at the start. These complex and ambiguous situations will therefore require the more modern LPM approaches explained in Wysocki’s text, notably Agile project management that is derived from the “Agile Manifesto” signed in 2001 by 17 influential software developers and says in part:

We are uncovering better ways of developing [products] by doing it and helping others do it. Through this work we have come to value:

  • Individuals and interactions over processes and tools
  • Working software over comprehensive documentation
  • Customer collaboration over contract negotiations
  • Responding to change over following a plan

That is, while there is value in the items on the right, we value the items on the left more.

Agile project management is an iterative trial and error process that focuses on continuous improvement and responding rapidly to situations when they change in order to minimize the total work required.

But before firms can get to that level of sophistication, they need to start with the basics. And as one chairman in our research summed it up:

Most of our clients are no better at understanding or applying legal project management than we are. But in the future, the fact that you can actually do something on time and within budget is going to become an important indicator of whether or not you really are a good lawyer.

A pdf of this entire series can be downloaded from Altman Weil Direct, where it originally appeared.

 

October 15, 2014

Book excerpt: What should law firms do to improve profitability and LPM? (Part 3 of 4)

This series was adapted from my new book Client Value and Law Firm Profitability, which was published at the beginning of this month.

As law firms struggle with internal pressure to retain and improve profitability and external pressure to satisfy client demand for greater value, one tactic has risen to the top of most law firm lists: legal project management.

As discussed previously in this blog, the field of LPM is so new that experts have spent quite a bit of time arguing about what it does and does not include. If you accept the very broad definition that we have been using for the last several years—LPM adapts proven management techniques to the legal profession to help lawyers achieve their business goals, including increasing client value and protecting profitability—it is easy to see that the vast majority of law firms could benefit from implementing LPM in some form.

Which brings us back to the question of exactly how to do that. Educating is relatively easy, but changing behavior is very hard. It is also the central problem in legal project management. The Association of Corporate Counsel and the ABA conducted a meeting a few years ago, “at which leaders of corporate and law firm litigation departments rolled up their sleeves and tackled the complex issues surrounding present day concepts of value in litigation.” In an ACC Docket article summarizing the event, the authors noted that progress will not be based on improved understanding or increased knowledge. Instead, “The challenge is change/behavior management.”  It’s not a question of knowing what to do, it’s a question of getting lawyers to do it.

In this research, the managing partner of one firm that invested heavily in education but failed to see much behavior change had this to say:

Project management will probably have the longest-term positive impact, but it’s been the biggest challenge, because it’s something that hasn’t been easily absorbed by a lot of the lawyers. When busy lawyers start scrambling around, the inefficiency creeps right up. At our firm, project management has not met expectations. But it’s improving, and I do think long term it will have a really big impact.

If there is one thing that participants in this survey agreed on, it is that it is difficult to get lawyers to use LPM, as seen in these comments from five more firms:

Project management is not natural to lawyers. We’ve always been trained to get the case done well to win, but now we also have to get the case done efficiently, and that is not part of the natural toolkit for most people. – Managing partner

Getting people to manage engagements is very difficult in this business. So we’re at the discussion rather than the implementation stage. – Chair

We’ve done a better job on the front end, on the developing and pricing piece. Where I don’t think we’re doing as much as we could is on the legal project management end, thinking about whether there are more efficient ways to actually complete certain kinds of work. – Senior executive

We have clients, especially in litigation and corporate, who are saying we need to implement LPM. But it’s hard to get our lawyers off the dime. – Senior partner

I think that it will require a lot of work, and daily support from the top, not just lip service from the partner team twice a year. – Senior executive

Given that the formal field of LPM is so young, and that many lawyers resist its fundamental ideas, it is not surprising that there are still disagreements about what approach to implementation works best. Several major vendors—including my company—offer different solutions. Each believes strongly in its own approach and frankly has a vested interest in proving its effectiveness.

Generally, implementation approaches fall into three broad categories: training, coaching, and law firm staff. Of course, these are not mutually exclusive and many firms use all three, along with software, as described in the next section. All of these approaches can have positive effects. The hard question that every firm faces is one of cost-effectiveness: which approach will produce the greatest impact today for the lowest cost.

Historically, most firms have started with some type of training. Lawyers love precedent, so when Dechert announced in 2010 that it had trained its partners in LPM, a number of firms jumped in to do the same thing. This led to some great press releases about how these training programs proved that firms were committed to LPM, but precious little in the way of results. Consider these comments from three firms that invested in extensive LPM training programs:

Every shareholder and top level associate has had a full day of project management training. I’d like to tell you that they use it, but they don’t. – Chair

Training raised awareness, but I think it will take a longer campaign to significantly move the needle in terms of our ability to change the way we do business. – Managing partner

I don’t want to say it’s stillborn, because that’s too fatalistic, but it has not taken hold like I had hoped it would. I think that there are some attorneys who probably are using it in their own way, but as an institutional concept it has really been put on a back burner. – Senior executive

It took a few years for it to become clear that training every lawyer in the firm was not a cost effective way to go, and that led people to less ambitious programs such as short sessions of “awareness training” that set stage and identified the lawyers who need to dig in more deeply.

In our experience, the most effective way for firms to build LPM momentum is not with large group training, but rather with one-to-one coaching for influential partners to enable them to directly experience the benefits of LPM. As a result, they will become internal champions who will lead efforts to adapt LPM to the particular needs of their firms, practice groups, and clients.

A pdf of this entire series can be downloaded from Altman Weil Direct, where it originally appeared.

October 08, 2014

Book excerpt: What should law firms do to improve profitability and LPM? (Part 2 of 4)

This series was adapted from my new book Client Value and Law Firm Profitability, which was published today.

The key to success is to come up with information and systems that increase the behaviors that are of greatest benefit to the firm. But it isn’t easy:

When you start digging into profitability at the matter level, you get set back. You can make the numbers say whatever you want, but did you consider headcount or overhead? Some of the offices might not be as busy so you want to spread the work to them. We’re willing to take a little hit. There’s a big picture we’re trying to achieve, and when we’ve tried to get into the weeds a little bit too much, it can backfire because we get bogged down with some of this stuff. So my idea is to take the long view. It’s very difficult to understand profitability at the matter level, and in some ways that’s a misguided approach because there are just so many factors to take into account. If you can slowly start to chip away at all these areas, then that will have a beneficial improvement upon your profitability. It’s all about improving your portfolio. – Senior executive

The real challenge is to use our profitability tool in a way that motivates all of the partners to their maximum effort toward profitability, without creating the wrong sorts of behaviors, like hoarding work or fighting unduly over origination credits. – Chair

Many firms are getting serious about training their lawyers to think differently about revenue, discounts, and profitability:

Our firm has really invested a lot of effort in arming ourselves with the tools to try and deal with understanding profitability. – Chair

Our CFO visits offices and trains people on profitability. – Managing partner

We fully intend to educate our attorney base to be more aware of these things. In particular, when attorneys approach our AFA subcommittee with a project that involves an AFA, part of the response is to address the profitability of that proposal and to explain to them when the particular pricing doesn’t make sense for us to take it on. – Senior partner

Left to their own devices, most lawyers are probably at a 5, on a 1 to 10 scale of understanding. But we educate them up to a 9. So it’s something in the middle. We have a very keenly-focused financial accounting regimen at the firm that is constantly preaching this, that all work and all books of business and all new clients are not the same. And consequently, our lawyers have a better than average instinct on this. At the end of the day, our pricing reflects this because we don’t give our lawyers total carte blanche to open up a new client at a new rate. We encourage them to bring in the clients, but then we work with them very closely as to whether that client at that rate makes sense. And sometimes it’s very timekeeper-dependent, what kind of leverage we’re going to have on the assignment. – Chair

In summary, while there is still much uncertainty about the most effective tactics, there can be no doubt that firms are increasingly focusing on questions such as:

  • How should our firm define profitability?
  • How should we communicate this definition to our lawyers?
  • How should we train lawyers to manage legal matters more profitably?
  • How should we compensate lawyers for bringing in and managing more profitable work?

Of these, the last question is by far the hardest. It is simply not possible to create a compensation system that makes everyone happy. The trick is to figure out which lawyers are most essential to the continued health of your firm, and how much do you need to pay them to keep them from leaving. Basically, my advice is to ask around and find the best compensation consultant you can. You’re going to need help.  (This is not an advertisement. LegalBizDev does not provide compensation consulting. It’s too hard.)

Last year, an AmLaw 100 firm that was just beginning to think seriously about those questions invited me to speak at a practice group leader meeting about pricing trends. When one participant asked what I thought was the most critical issue, I said it was determining the difference between low prices that are acceptable and prices that are simply too low to make business sense for that firm. “Where do you draw that line in the sand?” I asked. The chairman replied, “We don’t even know where the sand is.”

But that was then. Now that same firm has a number of new pricing and management initiatives in place and a new pricing director. Clearly, firms are making progress. It is just very, very hard.

A pdf of this entire series can be downloaded from Altman Weil Direct, where it originally appeared.