99 posts categorized "Alternative Fee Arrangements"

April 22, 2015

Six challenges in defining law firm profitability (Part 3 of 4)

Challenge #5 The problem with leverage

As Toby Brown and Vincent Cordo explain in the book Law Firm Pricing: Strategies, Roles, and Responsibilities (p. 18):

[Leverage can be defined] as the percentage of partner time worked per matter or per client.… The basic economic concept of leverage is that the more [non-equity] workers work, the more owners (partners) benefit. Workers generate the profits that pay partners. Therefore, the more work is pushed down to them, the better leverage you have and the more profit is generated.

Software programs that are designed to help lawyers bid in a way that maximizes profitability often do so by encouraging partners to push more work down to associates.

This concept is tied to the “old normal” pyramid model of profit, in which it was assumed that clients would have all their work performed on an hourly basis and would generally pay all their bills. But the legal world has changed to a “new normal” in which these assumptions are often incorrect.

For example, in a fixed price environment, efficiency is king and leverage can lead to higher costs and more unbilled time. Suppose a $1,000-per-hour senior partner can solve a problem in one hour, but a $300-per-hour associate will require 10 hours to come to the same solution. If the firm is paid the same fixed fee regardless of who does the work, it is obvious that solving the problem at the unleveraged partner “cost” of $1,000 is more profitable than at the leveraged associate cost of $3,000. (Of course, billable rates are a very approximate indicator of cost, but they are used here to keep this example simple.) 

Some critics have long questioned the value of leverage. In 1993, Bartlit Beck was founded on a totally different model, as Fred Bartlit explained in a 2012 ABA Journal piece:

Experienced lawyers can clearly do a task more efficiently than untrained rookies. So, why not choose a model based on low turnover, where only a very few high potential lawyers were well trained and mentored in order to dramatically increase experience levels? Our philosophy has turned the typical law firm structure upside down. Most large firms have few true partners and a large number of inexperienced associates. A typical ratio is 3.5 associates to each partner. Our experience metric is dramatically different: instead of the usual 3.5 associates/partner, we have 3.5 partners for each associate. This reversal of the typical large firm partner/associate ratio gives us a major competitive advantage in experience.

The result has been an award winning and highly profitable organization that Bartlit describes in the same article as:

The only firm in the world that does billion dollar litigation for Fortune 100 firms and is never compensated based on the hours expended.

One member of our Research Advisory Board summed up this view:

Leverage is a goofy concept sold by management and consultants. Ultimately, except maybe for some of the elite New York firms, high leverage will fail. There’s a reason Bartlit Beck operates with 3.5 partners per associate and Munger Tolles operates with slightly more partners than associates. Leverage and turnover have always been a disaster, except for the “golden era” (1980 to 2005) when clients weren’t paying attention, and thus it looked like a great business model for law firms to be inefficient, with high leverage and high turnover.

At this moment in time, the role of leverage in profitability depends on the client and the fee arrangement. For clients on a fixed fee basis or for hourly clients who refuse to pay portions of their bills due to inefficiency, greater leverage may decrease profit. If you have hourly clients who don’t question their bills and pay in full, greater leverage will still produce more profit. But it seems reasonable to ask how long this will continue.

Challenge #6 Problems applying cost accounting

The obvious 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. (Note:  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.

Many law firms see cost accounting as the Holy Grail, with potential benefits to both themselves and their clients. As ACC Value Co-Chair Michael Roster summed it up in an article entitled “Facing Up to the Challenge: Law Firm Metrics”:

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 the widely quoted text Results-Oriented Financial Management: A Step-by-Step Guide to Law Firm Profitability, 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 in my research 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 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.

In the final part of this series, we will describe what firms doing to get closer to this goal.

This series is an excerpt from my book Client Value and Law Firm Profitability .  An edited and abridged version of this series appeared in the March 2015 issue of MP magazineThe MP article can be downloaded from our web page.

 

April 15, 2015

Six challenges in defining law firm profitability (Part 2 of 4)

Challenge #4 The varieties of realization

A better approach to profitability starts with realization, as typified by this chair we interviewed:

We have made a big point to our attorneys that the focus is not revenue, it is profitable revenue. We try to get to realization. We start with the standard rates on a person’s time, and then we can determine, when bills are rendered and receipts are achieved, what percentage of the standard value we collect. It could have been a discount at the beginning. It could have been a write-off along the way. It could have been a billing or payment adjustment, whatever. But we look at the relationship between the standard value and the collection. If you spend $3 million worth of time to produce $5 million worth of revenue, that’s a hell of a lot better than spending $4.5 million worth of time to collect $5 million.

But realization is a lot more complicated than most lawyers think, because it comes in many flavors and goes by many names, each with their own strengths and weaknesses. The best summary of the underlying issues appears in an article by Jim Cotterman of Altman Weil, one of the leading consultants in this area, which explains seven key components that underlie various definitions of realization:

  1. Timekeeper discounting at the timesheet
  2. Write-downs of unbilled time
  3. Client adjustments resulting in write-offs ofreceivables
  4. Pricing variance
  5. Efficiency variance
  6. Turnover of unbilled time
  7. Turnover of accounts receivable

One result of the complexity is the fact that a number of different realization rates could be used to summarize a single situation, as shown in the table below. 

 Five Different Realization Rates for a Single Situation

The facts: A lawyer has a standard billing rate of $500 per hour and bids on 2,000 hours of work at a discounted rate of $400 per hour. She works 2,000 hours but before the bill goes out, she writes off 100 hours of inefficient time, so she only bills for 1,900 hours at $400 per hour. The client refuses to pay for 100 hours of this, so the firm is ultimately paid for 1,800 hours at $400 per hour.

Version number

Revenue paid to the firm

Realization formula

Realization calculation

Realization rate

1

$720,000

Revenue bid/ Revenue at standard rates

$800,000 (2,000 hours at $400) / $1,000,000 (2,000 hours at $500)

80%

2

$720,000

Revenue billed/ Revenue at standard rates

$760,000 (1,900 hours at $400) / $1,000,000 (2,000 hours at $500)

76%

3

$720,000

Revenue paid/ Revenue at standard rates

$720,000 (1,800 hours at $400 / $1,000,000 (2,000 hours at $500)

72%

4

$720,000

Revenue billed/ Revenue at bid rates

$760,000 (1,900 hours at $400) / $800,000 (2,000 hours at $400)

95%

5

$720,000

Revenue paid/ Revenue at bid rates

$720,000 (1,800 hours at $400) / $800,000 (2,000 hours at $400)

90%

Note that in all five cases, the firm is putting in the same amount of work (2,000 hours by a single lawyer) and bringing in exactly the same amount of revenue ($720,000). But the realization rate could be as low as 72% or as high as 95%, depending on which realization formula is used. And there are many other ways that some firms define realization, so there are far more than five options.

If all these formulas and examples seem confusing to you, you are not alone. Indeed, the two major conclusions of this brief overview are:

  1. Firms’ different definitions of realization can lead to considerable confusion when people try to compare results across firms
  2. The definition that a particular firm chooses may affect lawyers’ behavior in unintentional and unproductive ways

When it comes to confusion, it is important to note that this can affect law firm leaders’ views of their own and other firms. We recently heard one story about two firms that were considering a merger, in part because one firm was impressed by the other firm’s 90-plus percent realization rate. But when they later looked deeper into the figures, they found that the realization rate would have been much lower if both firms used the same formula.

Cotterman’s article also included a number of examples of ways these differences have important business implications for firms as a whole:

We had a law firm client that was thrilled with their near perfect overall realization. Upon examination we discovered that their high realization was due to unbelievably low billing rates resulting in lost revenue overall. At the other end of the spectrum, large accounting firms have been known to have realization figures in the low 80%s due to routinely large discounts off high standard rates. These are two examples, one unintended and the other planned, where realization is affected by pricing decisions.

When Cotterman reviewed an earlier draft of this chapter, he noted that it “shows how easily one can become confused in the conversation and the need to examine realization on its individual components—that is where the real work is.”

Another reviewer offered this anonymous example of the problems one can get into when using realization as a measure of profitability:

I had one huge litigation where realization was not great, probably 80%. But all the associates worked long hours on the case, including nights and weekends. Effectively they were working overtime, at no additional cost to the firm. Also, the client had a policy that you could not bill for travel time, and there was a lot of it. I felt, in fairness, that they should record all their travel time and I would just write it off as billing lawyer. Other partners would have told them not to write it down at all, so their realization would have looked better, although profitability would have been exactly the same.

This confusion is one of the reasons firms are moving away from realization as the sole measure of profitability. As one chair said:

A lot of times, there is confusion that profit is just realization.

For an extreme example, consider an associate who earns $400,000 and bills 2,000 hours in a year. Now imagine that for competitive reasons that have nothing to do with the associate himself, the work was bid and paid at an average of $175 per hour. This does not cover the associate’s cost under any definition. Revenue of $350,000 (based on 2,000 hours times $175) does not cover a $400,000 salary plus benefits, no matter how you calculate cost. However, under definition 4 or 5 in the table above, that associate’s realization rate would be 100%.

When it comes to influencing behavior, the differences between definitions are not just mathematical subtleties that only a CPA would care about. You get what you pay for, and the realization approach a firm chooses can shape lawyers’ behavior, since firms often measure lawyers’ success and award their compensation based on realization. The lawyer in our table above could be rewarded for high realization if it was calculated at 95% (Version 4) or penalized if it was considered 72% (Version 3), despite the fact that both versions have exactly the same impact on the bottom line from a business point of view.

In today’s rapidly changing environment, the problems can be especially challenging for firms that use standard rates as the base for computing realization. In that case, to improve your realization all you need to do is lower your standard rate, as this senior partner implied:

When you look at those realization rates and you compare them to the actual profit margins based on standard hourly rates of the underlying timekeepers, it’s all over the board. There is no consistent profit margin in those rates anymore and hasn’t been for years, because nobody’s gone back and sunsetted them and started them all over again. So what’s happened over time is, as rates have been adjusted, some up, some down, you’ve lost that connectivity. So realization really is no longer an effective measure of profitability.

If partners are rewarded for realization rates based on what is billed rather than what is collected, it will drive them to put in more hours, even when that produces no revenue for the firm, as this senior executive noted:

For evaluating partners we’ve always looked at realization and realized rates, among other things. And some of our internal experts are concerned that those are the wrong numbers to be looking at because they can drive the wrong behavior, especially in an age where they allow people to price low and it doesn’t matter what we charge for it. They’re very concerned that if the project isn’t done on time and on budget, lawyers can be rewarded for putting in more hours, even though we don’t make any money.

Or, as a senior executive at a different firm put it:

I think we've been much too focused on realization and that partners have a skewed view of what’s really profitable. They assume low realization means not profitable and high realization means profitable, and we’re just starting to get them to come around to the idea that that’s not always the case. I think we can go a lot farther down the road of getting partners to understand the impact of leverage on profitability.

The next post in this series will discuss the concept of leverage.

This series is an excerpt from my book Client Value and Law Firm Profitability.  An edited and abridged version of this series appeared in the March 2015 issue of MP magazineThe MP article can be downloaded from our web page 

 

March 18, 2015

LPM workshop: Experts from five firms discuss how to change behavior

On June 8 in Chicago, five law firms that have made significant progress in LPM will frankly discuss what has worked and what hasn’t at the fifth session of one of the Ark Group’s most popular events : “Legal Project Management Showcase and Workshop: Changing Behavior within the Firm.”  I look forward to chairing this session and discussing the latest developments with:

Andréa Danziger, Director of Business Development and Practice Management, Loeb & Loeb

Stuart J T Dodds, Director of Global Pricing and Legal Project Management, Baker & McKenzie

Michael Nogroski, Director of Knowledge Management, Chapman and Cutler

Scott Wagner, Partner, Bilzin Sumberg

Matt Wahlquist, Director of Practice Management, Stinson Leonard Street

If you are planning to attend this year’s Legal Marketing Association’s P3 conference (the three Ps stand for Project Management, Pricing, and Process Improvement), you may notice that the  Ark conference is scheduled one day before P3, which is also in Chicago.  That was not an accident.  I hate to travel, and Ark was kind enough to agree to schedule this workshop the day before P3 to save me a trip.  I wouldn’t miss P3. 

Implementing LPM is more critical than ever.  In Altman Weil’s 2014 Chief Legal Officer Survey, the top three things that clients wanted were greater cost reduction (58%), more efficient legal project management (57%), and improved budget forecasting (56%).  Since LPM will help meet the first and last requests, you could say the top three things clients want are LPM, LPM, and more LPM.

From the law firm point of view, when I interviewed AmLaw 200 chairs, managing partners and senior partners and executives for my book, Client Value and Law Firm Profitability, LPM was identified as the single best way to provide greater client value while protecting profitability.  But many firms have learned the hard way that while it is easy to offer awareness training to lawyers focused on LPM theory (and put out a press release announcing all their lawyers have now been trained in LPM), it is very difficult to get them to change their behavior.  The managing partner of one AmLaw 200 firm that invested heavily in traditional training and was disappointed in the results put it this way: 

I think project management probably will have the longest-term positive impact [on value and profitability], 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.

After previous sessions of this program, audience members said:

This workshop did an excellent job of offering practical suggestions for dealing with the issues law firms encounter when they implement legal project management. The frank discussions between partners and executives at firms that have successfully changed lawyers’ behavior would be helpful to anyone who is trying to get their arms around this challenging transition.

Delilah Flaum, Partner in Charge of Knowledge Management and Legal Project Management at Winston & Strawn LLP

 

This workshop is a great way for any law firm to jump-start an LPM initiative. Jim Hassett has the experience and credentials to be THE leader in this area. His approach is directly applicable to achieving greater efficiency, competitiveness, and client satisfaction and the workshop panelists described how they used LPM to increase revenues and repeat business. I was truly inspired and enabled by this program to achieve higher profitability for my firm.

Pete C. Elliott, Director of Legal Project Management, Benesch, Friedlander, Coplan & Aronoff LLP

For more details about what these five firms have done so far, and on the workshop, download the brochure, visit the Ark Group’s web page or contact Ark’s Peter Franken at pfranken@ark-group.com or (312) 212-1301. Readers of this blog qualify for a special 15% discount.  Simply write “LegalBizDev Discount” on your order form and subtract 15%, or ask for the discount when you register by phone.

 

February 18, 2015

LPM at Stinson Leonard Street – A course on defining scope and much more (Part 1 of 3)

By Jim Hassett and Jonathan Groner

Stinson Leonard Street has nearly 500 attorneys in 14 offices, with major operations centered in Minneapolis and Kansas City. It was formed in January 2014 by the merger of two firms that had previously made independent commitments to legal project management (LPM), including educational presentations by several leading consultants, hiring LPM staff, developing a task code system to track the cost of work, and more.

When he became one of two co-managing partners of the newly combined firm, one of Lowell Stortz’s top priorities was to accelerate this progress:

LPM is a great tool to provide more value and predictability to clients. From the time I started practicing law over 30 years ago there have always been lawyers who were good at this. But we are now devoted to spreading these practices throughout the firm. For example, thinking through how you are going to break a matter into phases, how you are going to charge the client for each phase, and whether an alternative fee arrangement is in order really helps clients to see more clearly the value you can deliver. LPM also encourages us to strategically participate in a little risk sharing now and then, which only makes sense to the client and to us if we’re really transparent about what’s going on.

For example, we had one client that looked at multiple transaction opportunities every year, although not all of them proceeded to a closing. So we agreed to perform due diligence, up to the “go/no go” phase, on a fixed fee basis. We know that we did not recover our rates on the transactions that did not go forward, so there was a clearly identified value to the client when a transaction didn’t proceed. They spent less and had a lawyer’s help in figuring out whether to proceed. From our side, however, we had the opportunity to get a look at every new deal. We feel like we had more deal flow because we were willing to help them on the front end. What does that have to do with project management? We could not have set a reasonable fixed fee unless we properly analyzed our internal data and accurately defined the scope for the project.

The firm’s other co-managing partner, Mark Hinderks, explained the importance of this new area in a similar way:

Project management is just a term for some things that are pretty basic on the wish lists of clients. Clients want to know what something’s likely to cost and how long it will take. Assuming we continue to do good legal work, the better we are at those things, the happier clients will be. Lawyers have notoriously avoided being pinned down on cost and time, due to the potential existence of factors beyond their control. But in other businesses, such as construction, there can be delays or disruptions from matters beyond a contractor’s control, such as material shortages, unanticipated site conditions, poor weather, and more. Yet, professionals in that arena have learned to project time and cost in a reliable way while accounting for risk. Increasingly, we as lawyers need to do the same whenever possible.

A few months ago, when LegalBizDev announced a new half-day workshop entitled “How to Define Legal Scope and Negotiate Changes,” Stinson Leonard Street became the first firm to sign up.

The reason we developed this course was that in interviewing chairs, managing partners, and other leaders of AmLaw 200 firms for the book Client Value and Law Firm Profitability, we had heard over and over that defining scope was the single most important factor in LPM success. As one chair put it:

The critical issue is sitting down with the client at the beginning and deciding what their goals are with the matter. Is it getting it done quickly? Is it getting it done so that nobody ever brings a matter like this again? Is it getting it done in advance of the big merger on the books a year from now? There are all different considerations as to what will lead a client to think this was a successful representation. And the more you push your client to think through what they care most about, the better off both of you are.

And when scope changes as a matter proceeds, as it so often does, lawyers need to know when and how to talk with the client about the best way to proceed, rather than just jumping ahead now and sending a bill later. As a senior executive at another firm we interviewed put it:

We have people who recognize that the scope of a project has changed, but you would think they were 15 years old again and asking a girl to a dance. They never get around to making the phone call.

Defining scope and negotiating changes had always been important parts of our introductory workshop, “How to Increase Client Satisfaction and Profitability with Legal Project Management,” but after analyzing our research results, we decided it also needed a course of its own.

LegalBizDev Principal Gary Richards took on the task of developing a highly interactive workshop built around six hands-on exercises, leading up to an action plan designed to immediately change behavior in each lawyer’s practice.

At the time of the merger that formed Stinson Leonard Street, Matt Wahlquist, the director of practice management at the firm, had been charged with accelerating LPM progress and building LPM principles into lawyers’ day-to-day practice. When he heard about LegalBizDev’s new scope course, Wahlquist thought it was a great example of the “very practical approach” he had been looking for, and he helped arrange the first session, which was held last fall in Kansas City.

Fourteen attorneys actively participated in the workshop and 10 firm leaders sat in as observers. Their presence was living proof of the importance the firm places on LPM.

Both co-managing partners were among the observers because, as Mark Hinderks noted, the concept of “defining expectations clearly right from the start of each matter is critical. Very often, when there is friction between law firms and their clients, it is based on a disconnect between expectations and what actually happens.” This course was designed to minimize that friction by helping to clarify expectations upfront.

The post-workshop evaluations were extremely positive, with one participant calling it the “best presentation by a consultant that I can remember.”

Next week’s post will describe the specific benefits several participants achieved from the course.

 

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