178 posts categorized "Legal Project Management"

January 28, 2015

One employment lawyer’s task list for a pre-complaint demand

A guest post by Judith Droz Keyes

Judith Droz Keyes is a labor and employment lawyer and partner at Davis Wright Tremaine who recently completed our Certified Legal Project Manager Program®.  This is the first of two blog posts based on her answers to essay questions from the program.

Legal project managers use the phrase “work breakdown structure” to refer to a kind of task list that organizes a matter into manageable units of work. This type of analysis can lead to consistent assurances of efficient, high quality legal work.

Below is a work breakdown structure for a task we perform for many clients, often under fixed fee arrangements:   handling pre-complaint demand letters through either settlement or mediation (regardless of whether there is a settlement), or our recommendation to the client that there not be a settlement.  (If a complaint is filed, the arrangement ceases and is replaced by a litigation arrangement.)

1.0  Preliminarily Evaluate Complaint

1.1 Investigate employee-complainant

1.1.1    Obtain from client and review personnel records (personnel file, benefits file, department file, payroll records)

1.1.2   Ascertain current employment status

1.1.3   Develop understanding of complainant as a person (age, race, length of employment, positions held, prior employment, “person to be notified in emergency,” Facebook)

1.2  Identify witnesses

1.2.1   Issue discovery hold to those still employed

1.2.2  Identify location and terms of separation of those not still employed

1.3  Investigate opposing counsel

1.3.1    Internet search

1.3.2    Internal resources (email to relevant group)

1.4  Investigate jurisdiction

1.4.1  Where did/does employee work?

1.4.2  What is likely venue of lawsuit?

2.0  Investigate Complaint

2.1  Identify managers/supervisors with first-hand knowledge

2.1.1  Schedule, and interview managers/supervisors (in-person, in a group)

2.1.2  Prepare outline of responses to specific allegations

2.2  Identify human resource personnel, or in-house counsel, with second-hand knowledge

2.2.1   Obtain their files

2.2.2   Interview them by telephone, if necessary

2.2.3   Prepare outline of information responsive to specific allegations

3.0      Contact Opposing Counsel

3.1  Telephone introduction

3.1.1  Schedule face-to-face meeting if practicable, telephone conversation if not practicable

3.1.2  Identify complainant’s settlement needs/demand

4.0    Evaluate Settlement Advice

4.1  Develop settlement recommendation

4.1.1  What it will cost to settle

4.1.2  Advantages and disadvantages to client for agreeing to what it will cost

4.1.3  Analyze settlement value, process

4.2 Prepare email summary of investigation and settlement advice for in-house counsel

4.3  Meet or confer by telephone with in-house counsel and others, as appropriate

5.0  Convey settlement position to opposing counsel

5.1  If mediation is warranted –

5.1.1  Select mediator

5.1.2  Identify who from client should attend mediation to maximize settlement potential

5.1.3  Schedule mediation

5.1.4  Prepare mediation statement

5.1.5  Prepare draft of settlement agreement

5.1.6  Attend mediation

5.1.7  Regardless of whether case settles at mediation, close matter

5.2  If mediation is not warranted –

5.2.1  Convey settlement position to opposing counsel

5.2.2  Negotiate settlement

5.2.3  Regardless of whether case settles, close matter

5.3  If settlement is not warranted –

5.3.1  Advise opposing counsel and close matter

January 21, 2015

Sample Risk Analysis Template for a public M&A matter, advising the target

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 third of three blog posts based on his answers to essay questions from the program.

This analysis uses a form from page 106 of the third edition of our Legal Project Management Quick Reference Guide.  Planning time would be focused on the items that have the highest degree of risk in column 4.

 

What can go wrong?

A. How likely is it? (1-5)

B. How serious? (1-5)

A x B = Degree of risk

Actions

Reduce in advance

Reduce during matter

Insufficient available internal resources at Thommessen

1

4

4

Plan and schedule

Keep people on team informed on progress and schedule

Client does not allocate sufficient resources

3

3

9

Plan and schedule. Inform client about likely input required and when it is required

 

Multiple bidders on M&A project

4

2

8

Prepare for mulitiple bidders with different timelines.  What should response be if timeline is accelerated or postponed?

Emphasize importance of timeline.

Material adverse event at client

2

4

8

Vendor due diligence.

Keep in close touch with client to address any concerns early on.

Process leaks

3

4

12

Inform on importance of confidentiality. Keep team tight. Prepare “holding/leak statement”

Ensure confidentiality. Be prepared for leak.

No bidder is offering good enough price

2

5

10

Do pre-sounding of the market/ potential bidders prior to launch. Structure the process. Prepare well on management presentations etc.

 

Diverging views among major shareholders

3

4

12

Seek to vet good support for decision to initiate process

 

Hostile takeover offer launched

3

5

15

Prepare for responses (available poison pills, white knights etc.).

Keep overview of available options.

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.

 

January 07, 2015

Tip of the month: Hold a lessons learned meeting

Lawyers are increasingly holding meetings at the end of every significant matter to review what worked, what didn’t, and what could be done better the next time.  These discussions are not just a learning opportunity but also a marketing opportunity. A “lessons learned meeting” will enhance your relationship, help you learn more about what an existing client values most, and enable you to provide more value. If a large matter is at a pivotal point, a mid-course review and redirection could be the difference between success and failure.  

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. For suggestions to increase the efficiency of “lessons learned meetings,” see the third edition of my Legal Project Management Quick Reference Guide.  

December 31, 2014

One managing partner’s view of three critical issues in LPM

A guest post by Sverre Tyrhaug

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

A personal plan to improve time management

What I do well now:

  • Clear picture/vision on what I want to achieve.
  • Using to-do lists (with brain map tool, giving good overview of all tasks)
  • Prioritizing and doing one thing at a time
  • Spending time to plan the week ahead
  • Maintaining “stop doing lists”
  • I often ask myself the questions:
    • What is the most productive thing I can do right now?
    • What is the best use of my time right now?
  • Trying to run efficient meetings with clear agendas
  • Keeping a clean desk and papers and documents  in organized fashion
  • Keeping track of time spent, categorized in 15 categories and evaluating it on a monthly basis.

What I could improve:

  • Limit unnecessary internal meetings
  • Establish routines and business process improvements on repetitive tasks including yearly budgeting, partner performance meetings, strategic review, and salary/bonus assessment
  • Limit interruptions (emails, drop-in visitors)
  • Block out time in calendar for my own project work
  • Ask questions and challenge the way I work:
    • What is the value added from this task?
    • Is there an easier way to do this?
    • What three to five things can I accomplish today/this week/this month that will make a big difference to the bottom line?
  • Delegate better and more
  • Learn to say no.

Thirteen ways to improve team performance

  1. Communicate: inform and listen
  2. Allocate enough time to team building.
  3. Involve the team early. Present them with the scoping of the matter and the draft work breakdown structure for brainstorming, buy in, commitment, assignment of tasks, and assignment of individuals responsible for each task. Communicate clearly on client goals and scope.
  4. Communicate “ground rules” for the team early in the process, including respect for each other, productive use of time in meetings, active listening, focus on solutions, and being prepared for meetings.
  5. Have regular efficient team meetings with clear objectives, an agenda in advance, the right people attending (small to get things done, large to build relationships or brainstorm). Provide minutes with decisions reached and follow up actions.
  6. Update the work breakdown structure and the planned schedule.
  7. Watch out for scope creep. Remind the team about the project scope and goals.
  8. Find out what motivates the team (deadline, challenge/difficulties, bonus)?
  9. Motivate team members, along the way and at the end. Make each member of the team aware of the importance of their contribution to the team.
  10. Act as a good example.  Be positive and provide feedback. Be available to discuss problems.
  11. Let people be responsible.  Hold them responsible for the result, but do not micro-manage. Be demanding in terms of performance, but provide clear goals and be supportive. Treat the team members as “winners” and part of our unique firm.
  12. Involve the team members in decisions. Listen to their views, show that you appreciate their input.
  13. Evaluate, gather feedback and take actions based on the feedback.

How to improve delegation

Delegation is an important part of the business model for a successful law firm. We need to delegate to manage profitability, we need to delegate to train our associates, we need to delegate to keep our associates happy in terms of understanding that they are valued and involved, and we need to delegate to free up time to do business development and other firm building work.

To improve delegation: 

  • Delegate early in the project. Think delegation immediately. Do not wait!
  • Think carefully, from the client’s perspective, on what tasks should be delegated. Delegation is not always efficient, but all or most of our projects have activities that should be delegated.
  • Discuss with the client why parts of the project are delegated, and explain why it is in the client’s interest.
  • Be a good coach when delegating.  Be clear on expectations (e.g. deadlines and  feedback) and priorities vs. other projects. Be available to help. Put the activity that is delegated in context. Why is the task important for the project (and what is the project?). Upon a new assignment, provide clear goals and objectives (WHAT).  Spend little time on HOW, but ask for their input on how they propose to perform the task (do not dictate how to perform the work in detail), and spend time on WHY (give the task meaning).
  • Learn from your experience when delegating. If you are not happy with the result or get a lot of questions from the associate on how to perform the work, think about whether you could be clearer on expectations etc. when delegating.
  • Try to delegate entire projects or work-activities as that generally helps the associates’ motivation, commitment and sense of responsibility for the end result.
  • If you lack confidence or delegate to new associates, start with delegating smaller tasks and provide structure and guidance.
  • Think carefully about the skills required and who to delegate to. Also think about the workload of the people and avoid delegating to someone who is already busy if there are other resources available.
  • Evaluate completed assignments and provide feedback. This is an extremely important point, as it is an investment in the associate that will provide the associate the tools and learning to perform even better on the next task delegated.

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 17, 2014

Bloomberg interview regarding my new book (Part 1 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: Tell us about your new book Client Value and Law Firm Profitability – what was your goal and who did you talk to?

Jim Hassett: In the last few years, millions of words have been written by law school professors and consultants about how the demands of the clients of major law firms are changing and what law firms should do about it.

The only thing that’s been missing from the conversation is statements by the people who actually run large law firms. These senior decision makers deal with these issues every day, and their very livelihood depends on coming up with the right answers. I wanted to hear their honest opinions about these highly sensitive issues but knew they could not speak openly if they were quoted by name, so I devised a research approach built around anonymity. I conducted every interview myself, and promised that while firm names would be listed in the report, the name of every individual I interviewed would remain confidential and no quote would be linked to a particular person or firm.

Leaders from 50 of the AmLaw 200 agreed to speak with me for this book. Forty-two percent were managing partners or chairs, and the remainder were senior partners and staff, including CEOs, COOs, and CFOs. They were indeed unusually frank in their responses, including the AmLaw 200 chairman who said that “Lawyers are about as dumb as you could possibly be about understanding how our product is made. The lawyers who understand how to make it and who can manage that process efficiently are going to be the winners.”

They also spoke freely about both problems and solutions, like the managing partner who noted that “I have a $10 million practice. But that could be a disaster for a firm, because it could cost them $11 million to get $10 million. But nobody ever talks about it that way.”

Bloomberg BNA: What was your most surprising finding?

Jim Hassett: While almost everyone agreed that client demands for greater value and lower fees have been putting pressure on law firm profits, firms were remarkably inconsistent about how they measure profits. When I asked, “If you compare profitability for two lawyers in your firm, is there a software program or formula used to calculate profitability or is the comparison more intuitive?” a surprising 26% said there was no such formula or program and that the answer was intuitive. For the other 74%, definitions and formulas varied widely, including total revenue, profits per equity partner, leverage, several different types of realization, and a variety of approaches to cost accounting.

To dig more deeply into this important issue, we conducted follow-up interviews with industry leaders from firms that sell software to analyze law firm profitability. Jeff Suhr, a VP at Intellistat/Data Fusion, reported that his company currently has 91 clients actively using their tools. How do they calculate profitability? Ninety-one different ways. The fundamentals are basically the same, but there are important differences in the assumptions and details. These differences can have significant implications for the way profitability is interpreted and can affect the way in which the figures are used to motivate lawyers to change their behavior so that they can better meet client needs in a way that can be sustained.

Bloomberg BNA: What are law firms doing to protect the bottom line?

Jim Hassett: They are trying lots of things, with mixed success. According to our data, the two most effective ways of protecting profitability are quite new to the legal profession: legal project management (LPM), and new staff positions in such areas as pricing, value, and LPM.

Other tactics have led to more mixed results, including relying on new technology, knowledge management (KM), and contract attorneys and outsourcing. The book includes many quotes from proponents saying that technology, KM, and outsourcing were the most valuable steps they took, and from others who said that they were a waste of time and money. These differences of opinion can be traced both to the different needs of different firms and to the details of how they tried to implement change in each of these areas.

Bloomberg BNA: Lots of people seem to agree that legal project management is important, but what exactly does it include?

Jim Hassett: That is an excellent question. The field is so new that experts disagree about what should be included and excluded from the concept. This has slowed progress, as seen in the remarks of one senior executive who noted: “We were just at a board meeting last week where we were talking about whether we should do formalized project management training. My answer to that is obviously yes, we absolutely should. But first we need to agree on what legal project management is.”

In my book Legal Project Management, Pricing and Alternative Fee Arrangements, I reviewed the short history of this movement and proposed the broad definition we use in our coaching, our training, and this research: “Legal project management adapts proven management techniques to the legal profession to help lawyers achieve their business goals, including increasing client value and protecting profitability.”

This broad definition includes everything from budgeting and communication to process improvement, knowledge management, and personal time management. We believe splitting hairs over what is and is not LPM is just another excuse to avoid action. Law firms need to move as quickly as possible to the real problem: What must we do today to meet client needs while remaining profitable and competitive?

Bloomberg BNA: Where is the pressure for LPM coming from?

Jim Hassett: From clients. One of the best sources of information about client demands is 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.) One key question in the 2014 survey, which was released in November 2014, was, “Of the following service improvements and innovations, please select the three that you would most like to see from your outside counsel.” This year’s answers from 186 CLOs were greater cost reduction (58%), more efficient project management (57%), and improved budget forecasting (57%). Since 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. 

In business, everything starts with meeting client needs. But lawyers who understand LPM and apply it to their practice are still a tiny minority. As one senior executive put it: “One of the problems that we have, and frankly that most firms have, is just teaching lawyers how to manage a project, getting them out of the habit of just automatically starting out with some rote process. Just because the client says, ‘I think I might have a lawsuit’ doesn’t mean you go off and conduct 40 depositions. Lawyers need to sit down and talk about what the client is trying to accomplish. It might turn out that we are able to accomplish the client’s end goal without taking any depositions.”

When I asked about which aspects of LPM were most critical to firms’ short-term success, it is interesting that the top two areas participants singled out were defining scope and managing client communication. These issues cannot effectively be addressed by the expensive software that so many firms see as a starting point. They require partners to change their behavior and become more efficient.

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.