I want this post to be an introduction to how modern corporate
legal departments work and how that might affect you as a lawyer or as an innovator.
Ben Heineman Jr. wrote a ~400 page book about what he’s calling the Inside Counsel Revolution. For our purposes as law students and legal innovators, it is the best entry point for learning about the business of law, specifically in the area of corporate law.
As the "revolution" in the title suggests, Heineman tells the story of an industry in flux, that for quite some time has been driven by changes on the client side and in the broader economy. Because corporate legal departments are probably the largest discrete segment of legal spend (estimated at over $100B), "the revolution" will continue to be relevant to us:
- If you plan to practice at a law firm after graduation, knowledge about business of law and some understanding of how corporate legal departments work should help you win clients and keep them happy
- Obviously, if you want to work in-house, learning about how legal departments work is a no-brainer, and law schools don't usually cover it
- Even though we won't talk at length about what Heineman calls "Alternative Providers" (i.e. legal tech startups and service providers) in this post, what you learn here might set you on the path to being a great employee or founder of one
What this post will cover
A few of the highlights:
- What's driving change at corporate departments
- How in-house professionals decide where to send legal work
- An introduction to legal operations, aka your point of contact in the legal department
- An actual framework to help you understand what legal technology can and can't do
- Which law firms are least vulnerable to pricing pressure
- A few ideas for how to help in-house folks justify legal expenditure
Why listen to Heineman?
As retired General Counsel (“GC”) of General Electric, he was the top lawyer in a company that employed ~1200 lawyers. Before that he was Supreme Court litigator (you can listen to one of his oral Arguments to The Court here), he clerked for Justice Potter Stewart on the Supreme Court, and also was the Editor in Chief of the Yale Law Journal.
How corporate governance affects the corporate legal services market
Because the GC’s job is to protect the corporation, the GC can’t be effective unless they’re included by other members of the management team in important discussions. And in those meetings, the GC’s must command respect. To earn the sort of clout that GC’s need to be effective in the C-suite, they need to demonstrate performance. Heineman here: “[The GC’s] credibility in the company often depends on cost control.” Also Heineman: “The General Counsel must pay intense, personal attention to questions of cost and productivity as the foundation in a relationship of trust with the CEO, the board, and other senior executives.”
The point is, “upsteam” corporate governance and fiduciary duty ends up affecting the rest of us “downstream” because lawyers at corporations are no longer at liberty to just send work to their friends at law firms and get the bill paid with no questions asked. As we’ll see, in some cases corporate legal is asking for, and getting, more for less from their service providers.
So if your business model happens to be compatible with offering more for less, it seems like a great time to work with corporate clients.
Structure of a corporate legal department
Centralized vs. Decentralized
· Who are inside lawyers accountable to?
· Who pays them?
· Who pays the service providers they hire?
· Who pays their department’s settlements, fines, and penalties?
· Who can hire or fire them?
If the answer is “Corporate HQ” then the department is centralized. If the answer is “the business unit,” then the department is decentralized. Heineman recommends a hybrid model, which is applicable to all the above as you might expect. Three clarifications are in order:
1) the business units pay the lawyers and their service provider’s costs, the for settlements, fines, and penalties, except when Corporate is concerned that the business units are “being short sighted and disapproving the costs needed for adequate legal responses to serious problems.”
2) In a large company, Corporate should pay and house “lawyer’s lawyer” specialists, i.e. tax, anti-trust, etc
3) the GC can stop a firing that was prompted by a lawyer (rightly) standing up to their boss on an important issue, but in the case of hiring, the GC can only go to far as setting a slate of candidates from which the business leader will select.
Legal Ops and Managing Cost
Heineman: “[Senior Counsel-Legal Ops/COO] will work with the legal leaders to drive innovation ideas across the legal organization, whether they are reducing cost, increasing productivity, implementing uniform standards, being on the forefront of technology, or increasing the effectiveness of the legal intranet. Alternatively, she will lead innovative initiatives herself, especially ones that mirror broader corporate efforts like productivity or quality. The fundamental mission of improving legal operations through innovation is now a critical job in law departments, not only because of inevitable cost pressures, but because the pace of technological change is so rapid.”
Areas for continuous improvement:
· Virtual deal rooms
· Digitized environmental compliance
· Practice group document troves
· Early case assessments
Heineman on how legal ops interacts with technology: “[T]here is little doubt that the legal organization’s head of operations must have changing technology—and its numerous applications—as a primary focus . . . increasingly, technology touches, and can improve, almost every aspect of law department operations. It is, of course, based increasingly on the capacity to digitize core functions and to utilize computerized databases. It increasingly uses third-party vendors, not law firms (a broad trend often called ‘Legal Process Outsourcing’).”
Competencies of a legal ops head:
· Organizational needs assessment and strategy
· Best practices sharing w/in the organization; global integration
· Use of big data for important decisions, i.e. fixed fees
· Moving work from firms to more economical vendors
· Budget, project, document, and case management
· With finance, creating metrics for measuring costs, effectiveness, and efficiency
Heineman again on the challenges of pushing for productivity in a mature industry: “[The legal ops head] will then work with the whole organization to embed those metrics in legal operations in quest of the business holy grail: true productivity improvements. This will usually mean a central role in patrolling the contested frontier over economics between law departments, law firms, and third-party vendors . . . ”
How legal departments decide who gets what legal work (segmentation)
One of the deceptively simple but highly impactful decisions that departments make is segmenting work. “Low to High” are the poles, and the spectrum is risk and complexity. Departments should first segment their matters by risk and complexity, then if necessary segment the tasks within those matters.
LOW to HIGH risk and complexity:
· Routine work with moderate complexity and risk (patent filings, trademark filings, arbitration)
· Repeating and complex, higher expertise required, higher risk (securities annual filing, products liability lines, multiparty contracts for high ticket price capital expenditure)
· One-off with high risk and complexity (class-action, patent infringement against a major comp)
· “Bet the company” (Deepwater horizon spill, Megamerger on the level of Comcast<>Time Warner).
Tasks (using litigation as an example):
· Doc Management
· Doc Organization
Deciding who does the work
It’s also worth repeating Heineman’s observation here that “the legal marketplace is in a period of transformation with long-term secular trends in transparency, competition, globalization, and technology (especially digitized information technology).” My personal hunch is that the corporate legal market is probably about the same size or slightly smaller, but law firms’ share of the pie is shrinking because of technology and alternate providers, to name two.
At any rate, the relevant question seems to be, who should oversee the work and who should do the work?
Heineman doesn’t lay out the universe of options there, but there are five buckets as I see it:
· high cost lawyer
· low cost lawyer
· high cost non-lawyer
· low cost non-lawyer
One example: I might assign a Lawyer to oversee production and discovery, but I might delegate a substantial part of the work to Technology Assisted Review (a machine). Authentication, Doc Management and Doc Organization might be managed by a high cost non-lawyer, and performed by a combination of low cost non-lawyers and machines. We’ll discuss this a bit more below in the “technology” section.
Whether the lawyers, non-lawyers, machines, etc are within the department or outside is another decision point. You might tactfully remind decision-makers at departments that while the idea of bringing resources in-house is often seductive because it seems to offer a way to paying markup on expertise, hiring professionals only works if it’s truly economical and culturally sound over a long enough time period.
One more thing—even if someone outside the department is overseeing the work, the department is going to try to have the bill sent directly from the provider to them to prevent markups.
So to recap –
1) Who will manage the work?
2) Who will perform it?
3) Is that person (or machine) inside or outside of the legal department?
Alternative Providers (non-law firm)
Anyway, in my observation what’s actually being adopted right now are things like eBilling, which enables analysis of a law firm bill (before it goes out to check for compliance with guidelines, upon receipt by client to check for the same, both sides with their own motives).
I’ll just note here a few common technology implementations from Heineman:
· Organizing documents
· Searching law firm bills
· Tracking actuals v. budgets (i.e. see what you actually get charged)
· Doing legal research & drafting documents
· Embedding regulations into systems & machines
· (I might add blockchain technology for certain aspects of transactional work, and hope to write more about this)
Because there is a perception vs. reality gap, I think it’s important for us to at least try to fully get our arms around what “legal technology” is. My best advice is to familiarize yourself with this nice taxonomy of legal tech from Roland Vogl, a professor at Stanford Law School. It includes 3 categories (Information Retrieval, Infrastructure, and Computational). In the same vein, SLS’s techindex contains 9 species (i.e. Legal Research, E-Discovery, Analytics, Document Automation).
Law firms: Biglaw
vs. ‘String[s] of Pearls’
Heineman is not a fan of large global law firms. Heineman reckons it’s better to “use an elite firm that has informal associations with elite firms in other nations and a track record of working together on the type of matter at issue. That informal ‘string of pearls’ may provide better service than the supposedly integrated, too often mediocre, mega-firm.” I love the string of pearls metaphor, and of course it’s above my pay grade to comment on whether or not mega-firms are mediocre.
I frequently hear about alternative fee arrangements (sometimes called “fixed fees”) these days.
The basics are that for relatively predictable engagements where there’s a course of dealing between the department and the firm, the parties can agree on a rate which is not based on hourly rates, which leaves enough of a profit for the firm, and is paid in a way that eases the cashflow problems many firms must deal with.
What happens if the matter comes in below the cost? The law firm still gets paid the fixed fee, so that matter was more profitable to them. What about cost overruns? The firm has to absorb the cost. (There are also “collar” agreements where within a band, i.e. 20% above cost, 20% below cost, the parties split the burden or profit, but only within the collar. So starting at 21% under budget, it’s pure profit for a firm)
Heineman’s insights on AFA’s: “Historical data can provide the starting point for negotiating the fixed fee, especially for books of recurring business/cases. Both firms and corporations have detailed information on the past costs of a variety of matters, especially if task-based billing codes have been used in good faith over a number of years. This is an instance where new technology can really be important. Big data and data-mining techniques can determine reasonable ranges of cost for the different types of matters. While this may be a good way to start, a history of the costs of matters may be an imperfect guide because it is the sum of hourly rates plus out-of-pocket costs and may reflect precisely the type of inefficiency and overbilling that the fixed fee seeks to eliminate. Developing big data screens to deal with this issue is vital.”
Heineman on pitfalls to watch out for: “The good news about fixed fees is that they may drive firms to leaner, more productive staffing. The bad news is that, even though they need to produce a good result, firms may cut resources too far and impair quality in order to get a bonus for coming in under the fixed fee. Or, despite the sales pitch up front, the key partner may spend less time on the matter than promised (or warranted). That is why inside counsel must either consistently—or on a sampling basis—review the quality of the ‘tasks’ that comprise the ‘type’ of work. So, too, if the corporation is on the hook for absorbing part of an overrun, it will want to track costs the firm is actually incurring. This may result in review of ‘shadow hours billed’ or other law firm ‘cost’ categories—if not on a monthly basis, then perhaps on a quarterly or half-year basis. Technology and project management in both corporations and law firms can make this tracking more transparent, effective, and, perhaps, timely. Technology also may have an important role in helping inside counsel manage the matter when multiple outside parties may have tasks to perform.”
But in some ways, nothing really has changed in law land
Heineman: “Finally, despite all the changes in the past 25 years, there is little question, in my view, that on any matter of signal complexity and consequence—the ones high up on the segmentation ladder and on which the GC will be judged—it is still the ‘lawyer not the firm.’ The ‘free agency’ of talented lawyers and the churn as firms poach each other’s top partners—with corporations following the lawyer—demonstrates the continuing power of the ‘lawyers not law firms’ rubric. Top inside lawyers must spend time identifying the neurosurgeons—and having a relationship with them—as an important insurance policy for the deeply important ‘predictable surprises’ that will invariably occur and will require the absolute best talent.”
He mentions that certain bankruptcy lawyers in 2008 were in extremely high demand and were able to just send their clients a substantial “for services rendered” bill. And that lawyer’s fee was probably well worth it.
Metrics corporations use to measure legal spend
1) Total spend (not ideal!): “A key historic metric for legal organizations is total annual legal spend: the cost of inside lawyers plus the amount spent on outside law firms and other vendors serving the Legal function (but excluding the costs of verdicts or settlements). A crude measure of legal organization efficiency is total legal spend as a percentage of total corporate revenues compared to peer companies. On this metric during my tenure, GE was at the bottom of the second lowest quartile of large companies (defined at the time as having more than $5 billion in revenue) as surveyed by third-party accountants or consultants. But there were all sorts of problems with this number.”
2) Department’s percentage of total legal spend (higher is better?): “Another common number is inside legal spend as a percentage of total legal spend: 40 percent, 50 percent, 60 percent? An increase in inside legal spend can mean lower total legal spend if highly talented and productive lawyers are working closely with business leaders and doing the corporation’s legal work rather than using their contact lists to call law firms.”
3) “Reality based” (Heineman’s pref): “In the new, more sophisticated world of law department management and finance, determining appropriate cost would ideally be “reality based,” turning on the opportunities and risks associated with different corporate activities. The cost analysis should involve developing and implementing not just metrics for the legal organization as a whole, but, importantly, for specific legal areas—Tax, Trade, Antirust, M&A, etc.—as applied to specific businesses within the corporation and to different geographies. Where can there be fewer resources? Where should there be more? What is the mix between inside/outside legal and non-lawyer resources? . . . There are now legions of consultants and experts willing to assist legal departments with these fine-grained, context-specific issues.”
Best practices for GC's and the legal department to justify expenditure
· Increased productivity/net reduced direct cost
· Net added direct financial value
· Intangible future value
· Nonfinancial and Financial Costs Avoided
· Identifying catastrophic risks
Heineman says sometimes numerical logic is most persuasive, but sometimes ‘another approach’ will work better. There’s a fair bit of tactical coverage on how to wage ‘the budget wars’ that you can read when you pick up the book.
How to fill law schools' education gap for vital in-house skills?
Given the choice, should you read one more footnote, or learn about emerging technologies and new processes that could benefit your future clients?
You’ll need to decide what’s right for you.
"What can I do now?"
A few ideas:
- Get up to speed by reading a few other Legal Innovation approved materials --> ". . . Read these by August"
- Become more efficient in law school studies using a superior memorization technique I've employed in both spoken presentations and written exams --> "How to memorize a 10 minute, eight point oral argument in 105 minutes"
- Pick up a technical skill or two --> "eDiscovery skills"
- Start a your own law student blog, which will ensure that you actually do the above --> "How to start your law student blog today (3 battle-tested templates for a post)"