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November 06, 2019

Prepare and Negotiate for Approval of a Scope Change (Part 3 of 3)

By Gary Richards, LegalBizDev

In the first two parts of this blog series, we discussed the best ways to prepare for scope change discussions with a client and how to engage in those discussions.  In the third and final part of this series, we explore how to ensure these discussions are successful.  This blog article is largely based on the third recommendation from Fisher, Ury, and Patton’s book, Getting to Yes: Negotiating Agreement Without Giving In.

Work from their interests, not their positions

Before entering the discussion or meeting with your client contact, try to answer the questions below to get at their true interests that may be driving their position of resistance. Also, prepare to tactfully ask these questions during your discussion if they seem to be resisting your proposed new approach:

Other than the client’s desire to minimize spending, what are their concerns about addressing increased fees and making scope changes during the course of an active matter?  How can I address those concerns?

Consider the difference between “positions” and “interests” in order to understand why focusing on your contact’s interests will usually be more productive than focusing just on their positions. Here is the difference in this situation, if your contact keeps the same position as in the past.

Their position: A “position” is what they want, as in the scenario presented in part 1 of this blog series:

“Don’t worry about it… you may find some savings in the remaining work… we’ll just settle up on all those scope change adjustments when you are done with the complete matter.”

Consider their position as the tip of the iceberg. You need to get beneath the surface to learn what is driving their position/want.

Their interest: An “interest” is the “why” underneath that motivates them to hold their position. Several possible reasons why are given as examples, below, which you could try to address as shown after each reason:

  1. They feel that they have the upper hand if they wait to discuss fees for scope changes after you have already incurred the time to perform the extra work because they have the power to just say “yes” or “no” to any or all of the additional fees you incurred. In the past, you have given in, so that is what they have been taught as the likely outcome.

Could be addressed this way: Describe very clearly what their approach has cost your firm in write-offs, and appeal to their fairness. If the standard of fairness does not appeal to them, you may want to reassess the desirability of keeping this client.

  1. They don’t want to be nickel and dimed with several smallish fee increases.

Could be addressed this way: That is an understandable interest. Suggest agreeing to a threshold dollar amount of scope change fees that must be reached before you come to them with a request for approval. For example, a $5,000 threshold could mean that you would aggregate four instances requiring scope increase fees of $800, $1,200, $2,400, and $800 into one discussion of $5,200. This avoids the nickel and dime perception and allows discussion of all fee changes more closely to when they are identified rather than waiting to the end of the entire matter.

  1. They have committed to this year’s legal spend to their management and must stick with it.

Could be addressed this way: You could ask, “Could I track any scope increases and submit them to you next calendar quarter?”

By knowing the client contact’s interests, you increase the likelihood of coming up with an approach that addresses their interests and satisfies yours as well. One of the best ways to learn your client contact’s actual interests is to ask the following two questions:

If you were to say “yes” and agree to address increased fees for scope changes as they are identified, what would your concerns be beyond your desire to minimize spending? How could I address those concerns?

This blog series was adapted from the fifth edition of the Legal Project Management Quick Reference Guide, an online library of LPM tools and templates which is updated twice a year.

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