18 posts categorized "Legal Business Trends"

August 08, 2018

AFA pricing best practices

By Jonathan Groner

At the recent conference of the Corporate Legal Operations Consortium (CLOC), Matthew Beekhuizen, chief pricing officer of Greenberg Traurig, was a member of a panel titled “How to Build an AFA Program: Best Practices in Design, Implementation, and Management.”  Beekhuizen recently discussed the panel and various aspects of pricing and alternative fee arrangements with us in the following interview.

LegalBizDev: Based on your personal experience, what approach do you take in dealing with pricing issues?

Beekhuizen: Earlier in my career, I worked in commercial banking, and I became accustomed to analyzing financial statements and profit and loss statements, particularly for the purpose of assessing the amount of risk for commercial loans. That work was highly data-based, and I still use a data perspective in developing prices in my present position.

I use data as a starting point. For example, in developing a budget for a piece of litigation, we look first at the costs of various tasks, such as depositions, motions to dismiss, etc., in similar matters. We also ask: What is the possible range of costs? This historical data paints a picture, and then I sit down with the attorneys on the matter and I ask them how the present case is different, if at all, from previous cases that were similar. We can go from there.

LegalBizDev: Are firms like yours becoming more data-driven?

Beekhuizen: Yes, firms are much savvier now, for example, about why and how they should use task codes to capture data in a meaningful way. In addition to the well-known ABA litigation codes that have existed since the 1990s, many firms are developing their own coding systems for all types of matters, not just litigation. And Hilarie Bass (current ABA president and a co-president of Greenberg Traurig) has initiated an ABA working group with the goal of creating broader code sets for a variety of practice types, as well as revisions of the litigation code set, aimed at capturing better data and being more useful in AFAs.

LegalBizDev: What is the relationship between task codes and AFAs?

Beekhuizen: The array of data that can be gathered from completed matters by the use of task codes helps a firm develop detailed projections of the cost of an upcoming matter. These projections can then be used to develop a fee proposal that the firm, with a greater degree of confidence, expects will be a valuable arrangement for the client and the firm.  The use of task codes also enhances legal project management efforts once the matter is under way, so firms can monitor what work has been done, by whom and when in comparison to the fee agreement.

One type of AFA that firms are using more frequently when they are truly data-driven, is task-based pricing. An example of this type of pricing would be that the firm and the client agree on a certain price per deposition, regardless of the number of depositions, or on a certain price for the review of, say, each set of 5,000 documents.

LegalBizDev: What is the relationship between legal project management and AFAs?

Beekhuizen: AFAs can really set the stage for legal project management. Say the work is being done for a fixed fee, which is a common type of AFA. That means that when the firm agreed on the fee with the client, the firm had based the arrangement upon specific staffing (how many people would be used for each aspect of the matter, where they are based, experience level) and expected scope (activity such as number of depositions, number of documents to review, etc.).  The firm needs to staff the matter in the way it had planned and monitor that the work is within scope. So the fee agreement becomes, or should become, a work plan to which the firm must manage. That requires regular reporting and assessing of where things stand, which of course involves project management. Project management becomes indispensable in making AFAs work well.

LegalBizDev: What is the relationship between the growth of legal operations within client corporations and AFAs?

Beekhuizen: Because of the growth of legal ops, more sophisticated clients have set benchmarks for what they want to pay for certain specific legal services, just the same way as firms’ use of data has helped firms come up with benchmarks for the prices that offer the most value to all involved. This is actually very good because it makes the relationship and the negotiation between the law firm and the client more transparent in many ways. Now, if the client and the firm have different expectations about the potential costs for a matter, both can review the data behind the expected cost. This helps firms have a more substantial and fact-based discussion with clients about price. When our clients are trying to implement AFAs for the first time, I always tell them to start with data. Having a legal operations professional on the client side helps with this process.

As legal operations continues to grow by leaps and bounds, as it has, we will be seeing a lot more data-driven requests from clients, and I think that’s a great development.

LegalBizDev: Do you deal with aspects of pricing that are not necessarily reducible to data?

Beekhuizen: Yes. Pricing is both a science and an art, and it ultimately is all about understanding your clients’ needs. Sometimes you may come up with an initial cost estimate that you know is beyond what the client is expecting. For example, a price estimate may represent what the firm believes will be required to win a certain litigation, but that cost is greater than the client’s monetary exposure. At that point, you can explore other alternatives that reduce the cost and create value for the client.

In another situation, the client may want to develop a fee arrangement that has the law firm sharing risk with the client, so that the law firm incentives and client objectives are aligned.

In yet another situation, the value for the client is not so much in cost reduction as in predictability of its legal expenses over a period of time.

In all these instances, our job is to develop an understanding of what the client is really trying to achieve. AFAs and data-driven analysis set the stage for the most important part – talking to the client about what they expect and what they consider value.

July 25, 2018

Keeping litigation costs down and clients happy

 

By Jonathan Groner

At the recent conference of the Corporate Legal Operations Consortium (CLOC) one panel was titled “When the Red Phone Rings: Managing Litigation to Keep Costs Down and Clients Happy, From Crisis to Completion.”  We recently discussed their conclusions and more in this interview with panelist Jason Osnes, Director of Strategic Finance and Project Management at Dorsey & Whitney LLP.    

 

LegalBizDev: Do you believe that the growing emphasis on legal operations, on the client side, and the focus on Legal Project Management (LPM), on the law firm side, go well together?

Osnes: Definitely. Our clients are looking for efficiency and predictability, and LPM helps to achieve that. At CLOC they say their goals are to be “efficient, innovative and aligned,” and these represent very similar objectives to what we are striving for with LPM. In fact, when we see this quest for efficiency occurring with such frequency on the client side, it helps me internally to legitimize what we are trying to do here with LPM.

LegalBizDev: You presented at CLOC on a panel with an associate from your firm and two people from a client, one lawyer and one legal operations person. In addition to you, the panelists were Ben Kappelman of Dorsey & Whitney; Paul Dieseth, Vice President, Associate General Counsel, U.S. Bank; and Matt Wahlquist, VP, Head of Outside Counsel Management, Pricing, and Analytics, U.S. Bank. Tell us a little about how that discussion went.

Osnes:  We explained how we work together from the initiation of a legal matter to its end. We discussed how our roles overlap and how we all attempt to increase efficiency and predictability in the spirit that CLOC promotes. The process can sometimes begin with the client, who may request a budget for a matter, and then the Dorsey & Whitney attorney will work with the LPM department to develop a litigation plan and scope the matter out in a way that meets the client’s objectives. Sometimes the lawyer at Dorsey & Whitney moves proactively to develop a budget and wants tools for that purpose, both from my department and from the client. The primary takeaway from our presentation was that true client collaboration involves a lot of proactive communication between attorneys and operations, at the firm and the client, throughout the entire matter lifecycle.

LegalBizDev: What effect do you think the rise of legal operations will have on the importance of LPM and on client development?

Osnes: Legal operations and LPM began as functions to facilitate administrative tasks, but both have grown beyond that to play a key role in improving the relationship between law firm and client. I believe that the demand on the part of clients for law firms with a real LPM capacity will only increase, and that means LPM can become a differentiator for law firms. I’m talking about firms that really do LPM, not those that just check the box that says they do it.

LegalBizDev: Many things can occur in litigation that are not predictable from the outset. Can clients and law firms, each armed with their new management tools, work together to reduce uncertainty?

Osnes: Yes. Just because something is unpredictable, that doesn’t mean you have to throw up your hands. If you as a law firm attorney talk to the client as early as possible, you can develop a solid baseline to manage a case, which ensures everyone is on the same page from the beginning. You may only be able to budget from the outset through a certain phase, rather than all the way through a possible trial, but it’s important to just develop, far in advance, a set of expectations that both sides will be comfortable with. Then, you need to be disciplined in tracking and communicating changes from that baseline when they inevitably occur.

The key is to explain this to the client from the outset. Another key is to remember that pricing and budgeting are something that you do with a client and not to a client.

LegalBizDev: How might this work in practice as a legal matter proceeds?

Osnes: If both the law firm and the client are working with a budget and using it as a management tool, they can almost instantly talk about new cost issues as they come up. They can ask: How will this development, say the need for the law firm to do a task that was originally out of scope, affect the budget? Attorneys on both sides now know this is out of scope or wasn’t contemplated in the budget and can talk readily about how this unexpected event can be handled in terms of the existing budget, or whether changes need to be made.

LegalBizDev: What role do outside litigation vendors play in this process?

Osnes: Some clients have preferred vendors that they use for e-discovery and other important litigation tasks. That is often part of their commitment to improving efficiency through “legal ops.” In our planning and budgeting process, we need to be aware of those. At the conclusion of a matter, when we and the client are evaluating what worked well and what didn’t, we need to look at the work of those vendors as part of the evaluation. Also, we at Dorsey & Whitney have our own in-house e-discovery and document review service called LegalMineTM, and if that team is part of the litigation, we and the client need to evaluate its performance after the case is over, as well.

LegalBizDev: Has anything changed in the way in which your pricing and LPM group presents itself internally to the firm’s attorneys?

Osnes: In the past, we have always described ourselves as a resource for our internal clients, Dorsey & Whitney lawyers. Now that the firm’s clients are asking for so much more, we also emphasize how our LPM team can improve client service, help lawyers meet each client’s expectations, and keep client relationships healthy and strong.

 

July 12, 2018

Leading study confirms that ongoing LPM training and support significantly improves performance

By Tim Batdorf and Jim Hassett

If you work at a law firm and care about its future, you must find the time to download Altman Weil’s free report of findings from its 2018 Law Firms in Transition survey.

For the last ten years, this survey “has tracked a continual shift in awareness, acceptance – and some persistent resistance to – legal market change” (p. i). This year’s report by Thomas S. Clay and Eric A. Seeger provides the best available data on law firm efficiency, profitability, pricing, staffing, productivity, and much more. 

To collect the data, Altman Weil sent questionnaires to 801 managing partners and chairs at US firms with 50 lawyers or more.  In other professions, questionnaire surveys like this typically “average [a] 10-15% response rate.”  One might assume that the response rate for a survey sent to law firm managing partners and chairs would be much lower, since they are often too busy to respond to anything that is not on fire.  But Altman Weil received an astonishing 49.7% response rate (398 firms).

The resulting report summarizes the experience and opinions of managing partners and chairs from nearly half of the 500 largest firms in the United States.  It provides information about what law firms have tried, what’s worked, and what hasn’t.  There is simply no better source for this type of up-to-the-minute insight into a rapidly changing profession. 

The findings that caught our eyes first, not surprisingly, were the ones most closely related to our interest in legal project management (LPM), starting with the fact that “Nearly unanimously, law firm leaders see a need to focus on improved practice efficiency” (p. xii).

So, what are law firms doing to meet this need?  Not nearly enough.

One survey question asked, “How serious are law firms about changing their legal service delivery model to provide greater value to clients?” on a scale from 0 (not at all serious) to 10 (doing all they can).  Less than half of firms (43%) gave themselves a rating of 6 or higher, and only 2.6% answered 9 or 10

But wait, it gets even worse.  In its most recent 2017 Chief Legal Officers survey,  Altman Weil asked the exact same question of clients.  Only 9% of clients (vs 43% of firms) rated this commitment at 6 or higher, and not one single client gave law firms a 9 or a 10.  Obviously, a huge discrepancy exists in how law firms perceive themselves vs how clients perceive law firms. Viewing these results optimistically, law firms that are committed to changing their legal service delivery model could have a significant business opportunity. 

From our perspective, the single most important graph in the 2018 Law Firms in Transition report (p. 55) is reproduced below:LFiT_EfficiencyTactics_2018B“Rewarding efficiency and profitability in compensation decisions” was the most effective tactic for improving performance, as almost anyone could have predicted.  You get what you pay for. 

Much to our surprise, however, more than half of law firms say they are already using this tactic.  Of course, the other law firms may not want to engage in the difficult process of re-evaluating compensation policies, particularly when they know how difficult those conversations can be.  And if this is the only tactic a law firm takes, it could derail significant progress for several months, if not years.  Unfortunately, in today’s market, time may not be a luxury that law firms can afford.

In addition, law firms have historically had trouble measuring and rewarding profitability.  A few years ago, when we interviewed AmLaw 200 managing partners and senior executives for our book Client Value and Law Firm Profitability, we reported that many firms are struggling with measurement, like the participant who admitted:

We don’t calculate profitability by formula.  It’s really seat of the pants. (p. 52)

As more and more firms improve the ways they measure and reward profitability, we predict that the impact of compensation on performance will increase far beyond the 47% figure in the graph above.  But again, this type of approach will likely take a few more years to fully materialize in many firms and is definitely not a “magic bullet” solution for any firm.

So, what exactly should law firms be doing now to help lawyers increase efficiency?  They should engage in “ongoing project management training and support,” because:

  • It is the highest-rated tactic for obtaining significant improvement in performance (other than changing compensation policies, as discussed above),
  • It is grossly underutilized with only one-third of law firms actually using this tactic, and
  • It is the easiest and most cost-effective way to significantly improve performance, especially when compared to other less effective tactics like systematically reengineering work processes or using technology tools to replace human resources.

Whatever tactics law firms decide to pursue, Altman Weil’s report (p. viii) concludes that law firm leaders must “pick up the pace:”

The challenge for leaders is to enlist a small cohort to start the innovation process with urgency and pace and begin to educate and bring others into the fold as rapidly as possible.  Leaders should focus daily on supporting the continued efforts of early adopters by providing encouragement, resources, time, and staff support.

We couldn’t agree more. 

For details of exactly how several leading firms have engaged this process, and the successes they have achieved to date, see the case studies section of our web page.

Full disclosure:  Altman Weil is a strategic partner of LegalBizDev, but not a single word of this post would be different if they weren’t.

 

June 13, 2018

How CLOC is helping law firms to improve efficiency (Part 2 of 3)

According to a 2017 Inside Counsel article about CLOC:

[One] big challenge around project management in law departments is that legal teams didn’t understand it or what was being asked of them. So, a team of over 20 industry professionals… created an executive summary to educate legal leadership teams of what legal project management is, what the benefits are and how they can get started. The CLOC LPM Initiative team also created a playbook that includes a simple checklist for each matter stage and templates that can be used and configured by legal teams to easily apply project management in their delivery.

Aileen Leventon, Principal at Edge International, led the group that prepared the resulting 14-page paper, LPM for Legal Teams.  It begins with CLOC’s definition of LPM, built around four major stages – intake, planning, execution, and review – and is summarized in this diagram:

Communication_Pic2




Naturally, CLOC looks at LPM from the client’s point of view. Their paper provides details for each stage, listing activities, results, and success criteria. It also provides templates such as:

  • Matter Complexity Guidelines
  • Request for Legal Service Checklist
  • LPM External Briefing Checklist
  • Monthly Matter Status Report
  • Post-Matter Review Form

Some of these tools can be used as-is by law firms; others provide useful insights into the way sophisticated clients look at LPM.  (While the paper itself can be downloaded for free by anyone, the internal links to templates are available only to CLOC members.  However, joining CLOC is easy and relatively inexpensive.) 

You don’t need to be a CLOC member to download another useful document which was created as part of this initiative:  A 16 slide PowerPoint presentation entitled:  LPM – The Business Case and Action Plan for Legal Departments.

Again, as suggested by the title, this presentation is aimed at in-house law department staff, but many of the concepts apply to law firms as well.  One of the most interesting slides addresses the myth that project managers “spend lots of time documenting and updating project plans.”  In reality:

LPM is 90% about communication and speaking the client’s language:

  • Defining and managing the scope of the work
  • Making sure all those who need to be involved are in the loop
  • Making sure that risks are addressed on time by the right people
  • Providing status updates
  • Facilitating meetings and discussions
  • Communicating meeting minutes and action items.

The emphasis on communication is completely consistent with our experience coaching lawyers in LPM for more than a decade.  For example, when Bilzin Sumberg COO Michelle Weber was interviewed for our white paper, A Model for LPM Success: The Case of Bilzin Sumberg, she said: “If I were to distill [our LPM] program into one highlight, one thing that everyone learned and changed, it was improved communication. It sounds so simple but improving communication with clients and within the firm is very hard.”

Finally, for people who need to make the case for LPM – whether in a law department or a law firm – the slide “What is driving the need for LPM?” (reproduced below) may be especially useful:

What is driving the need for Legal Project Management?

  Table_Pic3

 

May 30, 2018

How CLOC is helping law firms to improve efficiency (Part 1 of 3)

By Tim Batdorf, Jim Hassett, and Ed Burke

How much do you know about CLOC, the Corporate Legal Operations Consortium?  If the answer is very little, and if you work at a law firm that cares about legal project management (LPM), you may be falling behind your competitors. 

As suggested by its name, the Corporate Legal Operations Consortium is primarily intended for in-house staff at corporate legal departments.  But a growing number of law firms are becoming involved with CLOC for both substantive reasons (to better understand what clients are looking for) and for marketing purposes (to improve communication with current clients and with potential new ones).

CLOC’s mission is to help legal operations professionals and other core corporate legal industry players (e.g. tech providers, law firms, LPOs, law schools, etc.) optimize the legal service delivery models needed by small, medium and large legal departments to support their clients.  As summarized on CLOC’s web page:

In a technology and data driven world, when business moves faster than ever, legal is totally out of step. Our industry has been frozen in time, slow to change.  We organize all players in the legal ecosystem to help reform and shape our industry.

CLOC’s influence has exploded in the last few years.  According to a recent Bloomberg Law interview with its founder Connie Brenton (chief of staff and senior director of legal operations at NetApp Inc.), CLOC started in 2010 as a small discussion group which, at that time, might have best been described as “an information book club” or perhaps as “therapy.”  In 2016 CLOC became a non-profit, and according to Brenton:

In two years we went from an informal group of 40 to nearly 1,400 legal operations professionals.  

That was in February.  More have joined since, and at the time of this writing, CLOC had approximately 1,500 members and over 750 member companies, including roughly 30% of the Fortune 500. CLOC membership represents 43 states in the US and 39 countries around the world, and member companies have an estimated combined external legal spend of over $40 billion.

CLOC’s growing influence on the legal profession can also be seen in the fact that attendance doubled at each of its first three US meetings: from about 500 participants in 2016, to 1,000 in 2017, and nearly 2,000 in 2018. 

Given those numbers, it is clear why law firms are increasingly involved with CLOC.  According to Melissa Prince, Ballard Spahr’s Chief Client Value Officer, the most important benefit of CLOC involvement is proactive communication. 

For years, clients and law firms have had the common goal of transforming the way legal work is done, but until CLOC they were not really talking to each other about it in any meaningful way.  The reality is there will never be any long-term change in the legal industry until clients and law firms really start talking to each other.  CLOC encourages us to tackle tough issues and to be brutally honest with each other about what isand more importantly what is not working.  This is exactly what we need in the legal industry.  

After attending CLOC’s meeting in Las Vegas last month, David Clark, LPM Partner at Lathrop Gage, noted that:

CLOC emphasizes how clients and their in-house legal departments want law firms to collaborate with them.   This runs counter to a common misconception in law firms that clients are just using things like LPM and alternative fee arrangements to drive down legal fees, without regard for the law firms which represent them.  Instead, most clients want to increase collaboration with their law firms through LPM and similar tools.  While it is true that these tools allow law firms to more efficiently and cost-effectively handle legal work, at the same time, clients are rewarding collaborating law firms by increasing the volume of their work and paying success fees.  CLOC helps law firms understand that implementing LPM can foster increased collaboration with clients, resulting in more value for clients and deeper engagement for the law firm.

CLOC conferences are designed primarily for in-house departments, and the first session at each conference  provides an overview of the 12 core competencies identified by CLOC and summarized in this graphic:

  CLOC_12_Competencies_Pic1 Pic1_Copyright

All remaining sessions at each conference describe how best to execute against those competencies.  According to Jeffrey Franke, Assistant General Counsel at Yahoo Inc. and a member of CLOC’s Leadership Team:

The core competencies are the reference model for achieving operational excellence by in-house legal teams.  Legal operations professionals, working with their GCs and legal leadership teams develop strategic and tactical plans to create service delivery models (in-house, law firm, LSO, and tech solutions) to deliver the right quality of legal support at the right cost by executing against those competencies.  Each core competency is comprised of several sub-core competencies.  Until CLOC created the 12 core competencies, there was no comprehensive definition of legal operations.

Typically, legal teams focus on the 12 core competencies in a clockwise fashion – representing CLOC's operational maturity model.  Franke estimates that 60% of legal departments operate primarily at the foundational level, 35% at the advanced level, and about 5% at the mature level.  Franke says there are similar, observable patterns in the way in which legal departments evolve over time:

The parallel to operational maturity and the core competencies is functional maturity: we've found that legal ops teams mature (grow in size, scope, talent, and reporting structure) in a similar way over time as legal departments understand what it takes to execute at the highest levels.

CLOC’s web page also lists a number of crowd-sourced initiatives based on the idea that:

When experts from across the legal ecosystem work together to take on the biggest challenges of our industry, almost anything is possible… The CLOC initiatives… each led by a CLOC member, draw on contributions from law firms, alternative legal providers, technology companies, and law schools.  The result – best in class solutions that shape the present and the future of our industry.

While some initiatives are of primary interest to in-house law departments (such as the “Legal Ops Career Skills Toolkit”), others are of substantial interest to law firms, starting with CLOC’s LPM initiative, which will be described in Part 2 of this series.

May 02, 2018

A model for LPM success: The case of Bilzin Sumberg (Part 5 of 5)

By Tim Batdorf and Jim Hassett

Implications for other law firms

First and foremost, to maximize LPM success while minimizing its cost, law firms would be wise to follow the same five steps that Bilzin Sumberg followed when implementing LPM:

  1. Focus on changing behavior and solving problems
  2. Aim for quick wins to create internal champions  
  3. Publicize successes within the firm
  4. Use just-in-time training materials
  5. Take action now and follow up relentlessly

But these come with an important caveat: To maximize results, the initiative requires strong support at the executive committee level. At Bilzin Sumberg, the key champions included managing partner John Sumberg, managing partner elect Al Dotson, and COO Michelle Weber. Their follow up over the last few years has been patient but relentless.

At other firms, on more occasions than we care to remember, a managing partner or chair would begin an LPM program that achieved substantial successes, but momentum would be lost when they became distracted by other pressing priorities or left the firm.

Perhaps the most widely publicized effort in LPM has been at Seyfarth Shaw, which began its work on process improvement around 2006. Six years into their program, Steve Poor, then Seyfarth’s Chairman and now its Chair Emeritus, wrote in the New York Times DealBook (May 7, 2012):

Never underestimate the resistance to change from lawyers… The continuous move forward takes persistence and, perhaps, a bit of stubbornness.

So the vast majority of lawyers should be expected to resist LPM until they see “what’s in it for me.” It is up to the firm’s leaders to keep initiatives moving forward.

Some of the things Bilzin Sumberg’s law firm leaders did were very simple. For example, according to COO Michelle Weber, “we found that sometimes using the phrase LPM is a roadblock, so we used the word efficiency instead.” As Al Dotson described in Part 1 of this series, when he talked with lawyers across the firm, “every single practice group said they could not use LPM.” So he decided a language change was necessary to remove the roadblock:

We took the acronym “LPM” off the table, and asked practice group leaders to instead think about what would make your group more efficient.

This simple change in terminology helped reduce resistance.

During the 2017 panel discussion that we facilitated for Bilzin Sumberg, several partners described how important it was to have management’s assurance that they had LPM support available. This included hiring external consultants to conduct the initial coaching, obtaining new software, and hiring new staff or reassigning existing staff to focus more on LPM.

In July 2014, Bilzin Sumberg promoted employees to new LPM-related positions, giving them more responsibility and oversight for LPM initiatives. Suzanne Amaducci-Adams offered one example of how Paul helped her by creating a more efficient system for tracking all of her matters, which simplified looking up documents and project costs.

[They] came up with this whole system where I just hit a button, and I can get a quick list of every matter I’d worked on in the firm the last 20 years. I can tailor this list to find what I need in about 90 seconds or less. If that saves me 10 or 15 minutes of my day every day, that’s a lot of time that I could be doing other things.

In the next few years, we expect most firms to expand their internal LPM staff. Unfortunately, as we explained in our posts on “How to Hire LPM Staff,” it won’t be easy. Just about every firm is looking for people who have combined expertise in two different areas: project management and law firm operations. But LPM is a new field, and there just aren’t that many people around who have both. The result has been that too many law firms are pursuing too few people, leading to a great deal of mobility in positions that would benefit from stability.

In February 2016, we posted the results of interviews with 15 LPM Directors about their priorities and achievements. While researching these posts, we went to LinkedIn to see how many of the 15 had changed jobs in the two years since we conducted interviews. Almost half had: four to other law firms, two to in-house law departments, and one to start his own consulting company. In our view, this job mobility reflects not only the competition for experienced staff, but also the difficulty of a position which many law firms have not fully defined.

Our posts on “How to Hire LPM Staff” include the recommendation that “It takes much longer to understand a particular firm’s culture and operations than it does to learn the fundamentals of LPM… [Therefore] the best candidate may be someone who already works at your firm as a lawyer or a senior legal assistant....”

The details of how one firm followed this advice can be seen in our case study of LPM initiatives at Lathrop Gage. In short, they appointed Dave Clark, an IP lawyer who had been at the firm for 30 years, to the new position of LPM Partner. As Clark put it in that case study (p. 7):

We felt it was very important to change lawyer behavior, and what better way to do that than to put someone in charge of the program who has been here more than 30 years and who knows all the lawyers and the pressures that they face on a daily basis?

Clark’s LPM training, and the initial rounds of LPM coaching at Lathrop, were completed by LegalBizDev. Now that this foundation has been established, Clark is coaching more lawyers himself.

Whether a firm decides to build the foundation for its initiatives with external consultants, internal staff, or a combination of the two, it is important to begin reaping the benefits of LPM as soon as possible. As long as other firms continue to improve, the LPM bar will keep going up. As the chair of one AmLaw 200 firm we interviewed for our book Client Value and Law Firm Profitability (p. 171) said:

LPM is an evolving process. I don’t think there’s ever going to be a point at which you can say: “Now I’ve arrived.”

Firms can increase client satisfaction and profitability by following the principles outlined here. According to COO Michelle Weber, the most significant insight from their client satisfaction interviews is that:

Every client eats up LPM – better communication and budgets provide validation from the client perspective.

And based on their experience over the last several years, Weber believes that LPM is not just an interesting option for most law firms, but it is an absolute necessity:

If you fail to use LPM in the current environment, you will lose clients.

 

A pdf of the complete case study can be downloaded from our web page.

April 18, 2018

A model for LPM success:  The case of Bilzin Sumberg (Part 4 of 5)

By Tim Batdorf and Jim Hassett

Improved communication 

According to managing partners and other law firm leaders in our research on Client Value and Law Firm Profitability (p. 97), the second most critical short-term LPM issue (after defining scope) was “Manage client communications and expectations” (38%).

Managing partner elect Al Dotson explained how this applies at Bilzin Sumberg:

Early communication with the client is absolutely essential for us to mutually understand what the expectations are.  In addition, I routinely set up non-billable team meetings to ascertain the status of the work at any given stage, to avoid duplication of effort, to identify issues sooner rather than later, and to communicate quickly with the client if there are any issues.

According to partner Carter McDowell:

The primary benefit of this communication for clients is that it helps them understand the process in an organized fashion, as opposed to just a ten minute discussion of how do we go through this process and what the requirements are.  Clear agreement on project plans has also enabled us on more than one occasion to go back to the client and say, “Here’s a hearing that we hadn’t anticipated, so we updated the budget to include that process.” 

Similarly, Suzanne Amaducci-Adams reported that:

Communication serves as a tool to educate clients.  Some clients underestimate cost because they think you are “just closing a loan,” and they don’t realize you have to draft corporate resolutions, write three or four different opinion letters, and more. But once they see it broken down, then many are more willing to pay a fair fee.

In the Spring of 2013, COO Michelle Weber reviewed the final reports from 26 partners who had completed their first round of LPM coaching with LegalBizDev.  She said: “If I were to distill the entire program into one highlight, one thing that everyone learned and changed, it was improved communication. It sounds so simple, but improving communication with clients and within the firm is very hard, and we still have a lot of work to do.”  

Bilzin Sumberg’s approach to LPM

A full account of Bilzin Sumberg’s LPM initiatives could be the topic for an entire book.  This table provides a high level overview of the firm’s approach.

2011

  • Managing partner John Sumberg and COO Michelle Weber attend several conferences, and become convinced that Bilzin Sumberg would benefit by becoming a national leader in LPM.  
  • In November 2011, LegalBizDev is hired to coach three key lawyers to begin to create the firm’s first LPM champions.

2012-2014

  • At the firm’s annual retreat in March 2012, these three LPM champions described their “quick wins” from coaching and encouraged lawyers who were interested to take the same LPM coaching program.
  • In May 2013, 26 lawyers completed coaching (representing more than half of the firm’s 51 partners).
  • Bilzin Sumberg’s LPM committee is formed.
  • LPM staffing is strengthened by promoting employees to new LPM-related positions, giving them more responsibility and oversight for LPM initiatives.

2014-2017

  • Bilzin Sumberg’s LPM committee meets regularly with practice group leaders to monitor and encourage the use of LPM.
  • Practice group leaders build regular discussions of LPM successes and best practices into their meetings.
  • To simplify and improve reporting on project finances and progress, Bilzin Sumberg purchases Prosperoware’s Umbria software.
  • To improve LPM just-in-time training, the firm purchases LegalBizDev’s digital fifth edition of Legal Project Management Quick Reference Guide.
  • In October 2017, a panel discussion is held for the entire firm, in which eight partners who have become LPM champions describe its benefits.
  • Nine more lawyers begin LegalBizDev coaching.

2018 and beyond

  • Bilzin Sumberg commits to continue to support and enhance its leadership position through additional LPM initiatives.

 

Throughout this process, the firm has built its approach around the five recommendations explained in our white paper “The Keys to LPM Success”

  1. Focus on changing behavior and solving problems – As seen in the examples throughout our previous posts, right from the start Bilzin Sumberg’s coaching and internal support programs have focused not on abstract principles but on how to help each lawyer solve the problems that they want to solve.  COO Michelle Weber summed up the advantage of this approach: “This is one of the parts of the program that I appreciated the most: Lawyers don’t have to change their world. They just have to change what they do a little bit.”
  2. Aim for quick wins to create internal champions – The first quick wins were reported by the three senior partners who spoke at the March 2012 retreat (Al Dotson, Jon Chassen and Mitch Widom).  Twenty-three additional partners gradually signed up for coaching based on what they heard, and most of them became champions as well. 
  3. Publicize successes within the firm – Practice group leaders have been encouraged to include LPM in their regular meetings to publicize successes.  On a firm-wide basis, LPM has been discussed at most major firm events in this period (including the 2012 retreat and the 2017 panel described in this series).  Bilzin Sumberg is constantly looking for new ways to get the word out, and they recently began circulating “LPM Tips of the Month” memos, which call attention to key LPM issues and the online tools and templates that can help partners address these issues.
  4. Use just-in-time training materials – This is the “secret sauce” for the program, and it is described in detail below.
  5. Take action now and follow up relentlessly – When clients are asking for change, delay is the enemy.  Senior managers and champions must never lose sight of the fact that LPM will continue to evolve as the legal marketplace changes.

Just-in-time training materials

Just-in-time training provides learners with exactly the information they need, precisely when  they need it.  In most professions, this has become the standard way to teach new skills. For example, when lawyers need to use an unfamiliar feature of Microsoft Word, very few would consider taking a class or looking it up in a book.  Instead, they simply look up the information they need in online help files.

Since the start of the LPM initiatives described in this series of posts, LegalBizDev coaching has been structured around the tools and templates which appear in the fourth edition of our Legal Project Management Quick Reference Guide.   For the past several years, Bilzin Sumberg has provided a copy of this book to each new lawyer who joined the firm.  

In 2017, the fifth edition of these LPM tools became available in digital form.  This edition allows lawyers to access these tools from anywhere, whenever they need to, and the tools are immediately available to every lawyer in the firm.  Moreover, new tools can be easily added as they become available, and firms can customize key tools to their unique needs and procedures.  

Bilzin Sumberg was one of the first firms to purchase a license to these materials.   The online version of the tools was formally introduced at Bilzin Sumberg during the October 2017 panel discussion described above.  Going forward, LPM staff, practice group leaders and others will use these new digital tools to efficiently provide lawyers with more help more quickly.  

For more details about these digital tools, you can attend a panel discussion entitled, “How LPM Directors Can Increase Their Impact with Just-In-Time Tools and Templates,” at the Legal Marketing Associations’s P3 practice innovation conference in Chicago in May, 2018.  LegalBizDev CEO Tim Batdorf will facilitate this discussion with Scott Wagner of Bilzin Sumberg and Dave Clark, the LPM partner described in our case study of Lathrop Gage.   Audience members will also be encouraged to discuss any custom tools or templates their firms have developed, and how best to implement an online LPM tool library to ensure lawyer usage.

 

A pdf of the complete case study can be downloaded from our web page. 

March 21, 2018

A model for LPM success:  The case of Bilzin Sumberg (Part 2 of 5)

By Tim Batdorf and Jim Hassett


The benefits of LPM discussed in this post and the next illustrate how LPM can help lawyers better meet the needs of clients.  In its 2017 Chief Legal Officers (CLO) Survey  (p. 37), Altman Weil provided 280 CLOs with a list of ten possible service improvements and asked them to “please select … [the improvements] that you would most like to see from your outside counsel.”  The top three needs were: 

  1. Greater cost reduction (51%)
  2. Improved budget forecasting (46%)
  3. Non-hourly based pricing structures (39%)

Meeting client needs for cost reduction 

When clients ask for lower costs, the first thing many lawyers think of offering is a discount on their hourly rates.  This may be necessary in some cases, but it should be the last thing lawyers consider, not the first.  Lower hourly rates lead to lower realization and profitability.  (Unfortunately, many lawyers do not understand that a 10% discount on a particular matter may cut profits by 20% or 50% or more, depending on the firm’s economics.  Very few lawyers know the exact implications of a particular discount at their firm, as discussed at length in Chapter 3 of our book Client Value and Law Firm Profitability.)   

A much better approach is to use LPM to improve planning and management.  At Bilzin Sumberg, most significant matters now start with the responsible partner specifying a complete list of major steps in the process (a matter plan), and then estimating the cost for each step.  Once this budget is in place, tracking systems compare actual costs to budgeted costs as the matter proceeds.  Then, if actual costs are higher than planned, the partner can work with the client to manage and reduce future costs.

To ensure consistency of data and to provide additional “eyes on the target,” Bilzin Sumberg now has a centralized process supported by finance staff who input information into their budgeting software. LPM staff then provide partners with “ticklers” when certain milestones are reached.

In many cases, this analysis is based on lawyers tracking the work they do by means of task codes.  As the number of lawyers using these task codes has grown, information about the true costs of past matters, by task and phase, has become more accurate.  This enables lawyers to produce better budgets in the first place and to determine which steps can be accomplished at a lower cost without affecting quality.  

For example, litigation partner Jose Ferrer noted:

If you see that in the past 30 days you have used only the discovery task codes, it forces you to think, “Did this discovery add or detract from your progress in the case?”

Litigation partner Scott Wagner added that this type of planning and tracking can also reduce costs right from the start:

Perhaps instead of two associates assigned to a task, you may find that you need just one, or you might conclude that a partner could complete a task for a lower total cost even if his or her hourly rate is much higher. 

Wagner went on to describe how this type of planning and tracking applied to one matter:

We had spent a lot more money on discovery than we had planned. When I went back to look at it, I realized that we had budgeted ten hours for meet and confers in this phase, which at the time seemed like a very reasonable estimate. But we had actually spent over 100 hours on meet and confers. The truth was, it was time that was very well spent, and we were able to accomplish a lot with it. But I never envisioned that the meet and confers would be as extensive as they were. 

Real estate practice group leader Suzanne Amaducci-Adams commented that: 

Although our practices are completely different, “meet and confer” was the exact same hole we had in our budget on all of our initial loans budgets.

While some issues were similar across practice groups, in other cases different practice groups required different approaches to LPM and different solutions.  Consider, for example, the idea of having all partners begin with the same standard forms for routine matters.   

At Bilzin Sumberg, this has been quite effective in the corporate practice, where many lawyers work with similar sales and financing transactions every day.  By adopting a standard set of forms and agreements as their starting point, they have been able to reduce costs and avoid “reinventing the wheel.”  Bilzin Sumberg is in the process of redeveloping its intranet site so that each department has its own home page, which includes approved standard forms.

Within the real estate group, however, the idea of standard forms has proven more useful to some lawyers than others.  Lawyers who focus on Commercial Mortgage Backed Securities have developed a very solid set of starting forms.  But other lawyers in real estate, like partner Adam Lustig, more often represent borrowers than lenders.  His practice does not require a standard set of starting documents:

These documents are usually drafted by banks.  So the idea of starting from forms isn’t all that useful to me. More often than not, I’m the one reviewing and responding to documents prepared by opposing counsel. 

In this case, the LPM initiative led in a different direction.  As Amaducci-Adams explained:

We came up with the idea of checklists and issues lists.  For example, when you review a borrower’s contract, what are the 50 or more things you need to know? We developed a borrower’s issue list so none of the key issues would fall through the cracks. Then we started adding in the best language we had seen for certain provisions.  Our borrower issues list worked so well that we started breaking it down for different types of loans.  For example, there are unique issues with construction loans, leasing, hotel management agreements, franchise agreements and more.  So we gradually rolled out issues lists for each major category.

The lists not only led to lower costs, Amaducci-Adams explained, but: 

They became helpful in quality assurance. When we had an associate who reviewed a set of loan documents for us, they had to refer back to our list, and they had to confirm that every single thing in there either did not apply or was already in the documents. So our work product became better.


Meeting client needs for predictable budgets 

The same matter planning process that yields lower costs also leads to more predictable budgets and fewer client surprises.

According to litigation partner Scott Wagner:

The conventional wisdom is that budgeting is not possible in litigation. But based on my LPM coaching and subsequent discussions with my colleagues, we have found that you can indeed come up with a budget that is useful to your client and can lay out all the contingencies to know what a particular litigation will likely cost.  The result is that we became much better at giving both clients and the internal team a more realistic estimate of what a case will cost.

This type of budgeting has become a standard operating procedure for Wagner, who offered the following example:  

A few weeks ago, a long-term client described a new case and asked for “an idea of what this is going to cost.” I said, I really need to go back and sit down and look at the numbers. And he really, really pushed. I said, let me go back and sit down and figure this out.  I saw two immediate benefits.  First, when clients realize that you’ve given some thought to it, they take your estimate a lot more seriously, and that can lead to a detailed discussion.  If clients are going to push back on cost, it is much better to do this in an informed negotiation before the work begins than at the end of the matter when the client gets a surprise in the bill.  Second, you just do a lot better job. If you do off-the-cuff estimates, you always forget to include something. 

Carter McDowell, a partner in the Land Development & Government Relations Practice Group, reported a similar experience:  

For us, it began when one large client asked us to produce a budget for the upcoming year. This request forced us to sit down and take each of the hearings we were going to have and to break down each of the component parts of how we went about processing an application to get to hearing, who we met with – neighbors, staff, board members, etc. – and to assign essentially ranges of time for each of those. That gave us a framework that we’ve subsequently used to talk to other clients about the process that we go through to process an application.  It’s broken down in writing, in chart form, with hourly projections for each of the tasks. 

Meeting clients’ needs for predictable budgets can also lead to new business.  Al Dotson described a recent matter in which a large international client asked for an estimate:

We took a look at the sheet that we have been keeping and updating on an annual basis that brings forward all of our matters using today’s rates, and the manner which we staffed it, to give them a range of what we thought this would cost.  They got the legal spend approved, and we came within pennies, literally pennies, of the budget that we set for them without writing off a single dime of time. And that was simply because we actively use our task codes, apply the historical information we have, and then manage the process carefully.

 

A pdf of the complete case study can be downloaded from our web page. 

March 07, 2018

A model for LPM success:  The case of Bilzin Sumberg (Part 1 of 5)

By Tim Batdorf and Jim Hassett

Executive summary

This series of posts describes the process that Bilzin Sumberg has used to implement LPM over the past few years, and provides examples of the benefits they have achieved in six major areas:

  1. Increased new business and profitability
  2. Meeting client needs for cost reduction
  3. Meeting client needs for predictable budgets
  4. Improved AFAs
  5. Improved definitions of scope
  6. Improved communication

As this series will make clear, Bilzin Sumberg has had many successes in changing the way they practice law to better meet client needs, and their LPM initiative has paid for itself several times over.  But their work is not done.

The final post in the series describes implications for other law firms based on Bilzin Sumberg’s experience with LPM.  Some of the tactics Bilzin Sumberg found to be effective are quite simple to implement.  For example, in the early stages of implementation there was some lawyer resistance to the term “legal project management.”  By changing the terminology, using a less intimidating term like "efficiency" as opposed to “legal project management,” Bilzin Sumberg was able to overcome lawyer pushback and develop broader buy-in. 

Other Bilzin Sumberg strategies required more effort, such as unrelenting support from senior management, bringing in external consultants, and a gradual increase of internal LPM staff. 

Nobody at Bilzin Sumberg – or any other law firm we’ve talked to – has ever said LPM is easy.  But they do say that well-planned LPM investments will pay off for their firm and their clients.  Greater efficiency and predictability is an absolute necessity for law firms wanting to survive and prosper in an increasingly competitive legal marketplace.


Introduction

Lawyers often ask us to name law firms that serve as models for cost-effectively implementing legal project management (LPM).  

Our first public answer to this question appeared in this blog in 2013,  when we wrote “no law firm on the planet has achieved more [LPM] behavior change, more quickly or more efficiently” than Bilzin Sumberg, a Miami-based law firm with more than 100 lawyers.  Now, five years later, this series of posts will explain how the unrelenting support and follow-up by Bilzin Sumberg’s management has enabled it to hold the number one spot, and to achieve substantial benefits both for clients and for the firm.

Some firms are sure to disagree with this assessment, and a few may lay claim to the title for themselves.  It is certainly true that some groups at other firms have made greater progress in particular sub-areas of LPM, such as process improvement, pricing, and knowledge management.  But based on our research and consulting with hundreds of firms, we believe that no other firm has achieved greater LPM progress and experienced greater benefits across the board.  And the reason is simple: Bilzin Sumberg has produced more behavior change amongst its lawyers than any other firm.

Last fall, our CEO Tim Batdorf facilitated a 90-minute panel discussion at Bilzin Sumberg, in which eight of the firm’s leading LPM champions described what they had achieved to date, and what they had planned for the future.  Every lawyer in the firm was invited, and the discussion also provided a brief overview of two new LPM resources that Bilzin Sumberg recently adopted:  the digiral tools and templates in the fifth edition of our Legal Project Management Quick Reference Guide, and Prosperoware’s Umbria software to improve budgeting, tracking, and more.

The first speaker was the firm’s managing partner elect Al Dotson, who spoke about the benefits already experienced through the firm's adoption of LPM as well as the expected benefits with future progress. When Dotson held his first LPM meetings with each practice group leader:  

Every practice group said LPM didn’t apply to them. Every practice group said that they were unique. Every practice group said they could not use LPM. Every single one.

In the final section of these posts – “Implications for other firms” – we will explain that this sort of initial resistance is almost universal.  To overcome this resistance, in our experience, the support of key leaders is an absolute prerequisite for success.  

In some cases, we have worked with firms that made significant LPM progress when they were led by a partner who strongly believed in it.  But then the leader left, and the initiative fizzled as new management stressed new priorities.

At Bilzin Sumberg, Dotson, along with managing partner John Sumberg and COO Michelle Weber, have persisted in gently prodding partners to see how LPM could help them, following the five key approaches explained in our white paper “The Keys to LPM Success.” 

  1. Focus on changing behavior and solving problems
  2. Aim for quick wins to create internal champions
  3. Publicize successes within the firm
  4. Use just-in-time training materials
  5. Take action now and follow up relentlessly

Although these approaches are important for success, LPM is not a “one-size-fits-all,” well-defined linear process or a simple set of steps.  It is a mindset which must be constantly reinforced.  And the behaviors that lawyers change as a result of this new mindset evolve over time in response to changes in the legal marketplace.  

As Bilzin Sumberg COO Michelle Weber summed it up: “LPM is not a silver bullet.  It is an ongoing and continual process of gradually modifying behavior, with little moments of clarity.  To create LPM acceptance in a law firm culture, you have to keep reinforcing it.”


LPM Benefits

Increased new business and profitability 

To evaluate any LPM initiative, it makes sense to start by going directly to the bottom line, to see whether LPM has increased new business and/or improved profitability.  

At the panel discussion last fall, Al Dotson, Bilzin Sumberg’s managing partner elect and head of the firm’s Land Development & Government Relations Practice Group, began the discussion by saying:

I have successfully used legal project management to generate business many times.

In a previous LPM panel discussion – held to kick off their firm-wide LPM initiative in 2012 – Dotson described how one of his clients was so impressed by the legal project plan he had produced in his coaching that the client awarded Bilzin Sumberg a significant amount of new work.

This success encouraged other partners to volunteer for coaching, which in turn has led to many other examples of new business which can be directly attributed to LPM.  To cite just one example from the 2017 panel, real estate chair Jim Shindell described how a new client needing a series of condominium construction loans had first heard of Bilzin Sumberg:   

We had just saved another client with that same bank a ton of money with the speed and efficiency in which we were able to do the deal.

The new client then hired Bilzin Sumberg because of their proven efficiency on this same subject matter with the exact same lender.

Proof of new business from LPM is relatively easy to find, but exact figures for how much the LPM initiative has increased realization and profitability is harder to come by.  Like most firms, Bilzin Sumberg does not publicize its exact realization or profitability figures.  But there can be no doubt that many of the changes described in this series have increased both figures.  As COO Michelle Weber summed it up:

As a result of LPM, we have definitely decreased write-offs and reduced the number of times we need to go back to clients to discuss budget changes.

January 10, 2018

Litigation AFAs (Part 3 of 3) 

By Greg Lantier, Natalie Hanlon Leh, and Mindy Sooter, WilmerHale

 

Five Questions Outside Lawyers Should Ask Themselves Before Submitting an AFA

In this third article in the series about AFAs, we discuss five questions that outside lawyers should be able to answer for themselves before submitting an AFA proposal for a litigation matter to a client.

  1. Why Am I Proposing an AFA for This Litigation Matter?

First, outside counsel should ask herself why she is proposing an AFA for this matter.  To be sure, AFAs are often beneficial—providing clients with predictability in litigation costs and simplifying the billing for outside counsel—but they are not without risk.  For example, if assumptions underlying the AFA were not accurate, or if these assumptions change over time, the original AFA proposal may likewise be off base.

Thus, outside counsel should be able to articulate the reason for proposing an AFA as a pricing alternative.  One common reason is client preference.  Some clients, including many public companies, value stability and predictability in litigation costs, and seek to avoid unexpectedly high monthly bills.  Other clients may prefer AFAs with success premiums to ensure that outside counsel has “skin in the game.”  But if the client has not requested an AFA, this might not be a good case to propose one.  Indeed, some clients prefer hourly-based billing.  And some cases may be unusual or unpredictable enough to make an AFA inappropriate.

In short, outside counsel should discuss the AFA approach with the client, understand the client’s preferences and concerns, and structure the proposal to address those needs.  While some clients are eager for AFA proposals, not all cases and clients are good fits for AFAs.  If the client has not requested an AFA or the case is unusually difficult to budget with accuracy, this might not be the case to propose an AFA. 

  1. How Long Do I Expect This Matter to Last?

Second, outside counsel should ask herself how long she expects this matter to last.  Outside counsel often has a sense of when or if a case might settle, depending, for example, on the litigation history of the opposing party and its counsel, and on the client’s historic preference for settlement versus trial.

Cases that are expected to settle almost immediately would probably not warrant an AFA.  Cases expected to last longer, but to settle before trial, could be good candidates for AFAs.  In those cases, AFAs provide predictability to clients without significant risk of diverging from the original budget estimate.  Likewise, AFAs in cases likely to proceed to trial are often beneficial to the client, providing the desired predictability and stability of fees throughout the case.  Those cases, however, present greater risk to outside counsel because over time, the budget assumptions underlying an AFA—formulated before litigation began—are more likely to prove inaccurate. 

For all AFA cases, and especially cases expected to “go the distance” to trial, outside counsel and her client should discuss and document the original budget assumptions as well as the circumstances under which the AFA may be modified if the litigation diverges from those original assumptions.  This will ensure that the AFA remains realistic and beneficial not only to the client but also to outside counsel.

  1. Would This AFA Be an Appropriate Template for This Client?

Next, outside counsel should ask herself whether this proposal is a sustainable model for future matters with this client. Often AFAs are presented in response to requests for proposals.  These are competitive bids, and, especially if this is an opportunity to work with a client for the first time, outside counsel might be tempted to present a low offer to beat out the competition.

If outside counsel hopes to build a lasting relationship with this client, however, it is important that the proposed AFA reflect a realistic case budget.  Certainly, the AFA should reflect any discount the firm is willing to offer to obtain this matter, but it should not be unsustainably low.  This proposal is likely to become a standard to which future proposals are compared.  If the original AFA is unsustainably low, the client will be shocked when the firm presents a more realistic budget next time. 

Thus, instead of presenting an unrealistically low proposal, outside counsel should talk through the AFA with the client to ensure that they are both working under similar budget and case assumptions.  That common understanding, leading to a realistic AFA, will build trust needed for future engagements, and be more likely to lead to a long-term relationship.

  1. Am I Confident the Client Will Make Adjustments if Circumstances Change?

Outside counsel should also ask herself how confident she is that the client will be reasonable in making adjustments to the AFA necessitated by changes in litigation circumstances.  Unfortunately, litigation is not always predictable.  A plaintiff may add claims or parties, and new issues may arise.  If these circumstances were not accounted for in the original case budget, it may be necessary to alter the AFA.  And if outside counsel is not confident that the client will cooperate in reasonably modifying the AFA, then an AFA may not be appropriate in this case. 

To determine a client’s willingness to reconsider an outdated AFA, outside counsel should have a frank discussion with the client before litigation begins about the circumstances under which the AFA may be modified.  Certainly, the outside firm should bear responsibility for meeting the original budget under the original assumptions.  But if those assumptions change, for example if the plaintiff adds new claims, there should be a mechanism by which the client and outside counsel negotiate a modified AFA.  If the client is not willing to include any such mechanism, or if outside counsel senses that the client will be unreasonably inflexible, an AFA pricing structure might not be the best approach.

  1. How Will I Train the Team to Work Within the Budget?

Finally, outside counsel should ask herself whether she has a plan for building a team that will work within the budget.  A good AFA is typically derived from an estimated case budget, calculated from the estimated number of hours to perform each litigation task. 

To ensure success of the AFA, therefore, outside counsel should have a plan for building a team that can work within the budget.  The plan should include training the team members about the budgets for each task, providing the team with tools for tracking their actual time spent and comparing it to the time allotted, and providing additional resources or skills to team members that have difficulty staying within budget.  Counsel must also ensure there are tools to track the overall team’s progress as compared to the budget.  These tools require mechanisms to track and report the hours expended versus hours budgeted. 

Without a plan for building a team that can work within the budget and for tracking that progress, an AFA becomes difficult to manage and the risk of departing from the AFA increases significantly.  Putting the necessary tools in place and training the team on the budget are essential prerequisites to entering into an AFA.

The authors are partners in WilmerHale’s Litigation/Controversy Department and IP Litigation Practice. This is Part 3 in a series of three related articles that have been adapted from Law 360 for the fifth edition of the Legal Project Management Quick Reference Guide.  The Guide also includes three additional articles on this topic by the same authors.