A few days ago, my compadre Paul Lippe wrote a thoughtful post: What if Someone Could Measure What Lawyers Do? Paul addressed the “fancy term” for the argument that what lawyers do can’t be measured: “credence good.”
As good as Paul’s post was, the comments on it were particularly interesting. FMC Technologies Inc. general counsel Jeff Carr, who has been measuring lawyer performance for a decade, wondered why this was still a topic of conversation. Others suggested measuring outcomes, but the some wondered how you measure quality. At a recent lunch, Mark Herrmann, associate general counsel of Aon and its head of litigation, said he could tell high-quality lawyers by reading their written work, a subjective means of evaluation.
This issue is not a new one for business, and as with many of the issues that confront lawyers, businesses have confronted these before and are now well beyond lawyers. My bias is that a C-suite executive deals with many of the same ambiguities that lawyers deal with, and that evaluation of an executive’s quality can be done subjectively. As with lawyers, there is no one single number that separates great executives from merely good ones. As Mark Herrmann said at our lunch, both lawyers in a case could be clowns, and one clown still wins. But businesses have found ways to objectively measure executive performance. Really good businesses incorporate these objective measures into evaluations that also include more subjective evaluations.
Measuring what lawyers do is no different—it is part of an overall evaluation. The key, it seems, is what to measure. What you measure depends to a great extent on the kind of practice you have. For example, if you represent consumers, it may be important to measure how many people call you, and you need not be concerned about repeat business. On the other hand, if you represent corporate clients, it is (or should be) important to track how many hire you for a second and more matters.
Thus, rather than look at a lawyer singularly, it is useful to separate what a lawyer does and determine if any of those “pieces” are amenable to measurement. Some things, like analysis of a dispute and determining how to advise a client, are not subject to objective quantification. But other things—like accuracy in reviewing documents, or performance to budget and compliance with project management plans—are quantifiable. With that as backdrop, here are some thoughts on things in the life of a lawyer (a commercial litigator at least) that are measurable.
1) The percent of times a lawyer timely prepares the required early case assessment.
2) The percent of times a project plan for a case is timely prepared. And updated.
3) The percent of times a lawyer/team meets budget, for both segments of cases and the entire case.
4) The percent of times work product is timely submitted for review (i.e., client to have one week to review before filing).
5) Grades on depositions/divided by quality needed (example: an expert on a critical case needs “A” work, but the quality was only “B”. That yields a B/A, compared to a terrific deposition of a less-important witness which might yield an “A/C” grade. By attaching numbers to both numerators and denominators, a statistic can be created.)
6) Grades on briefs (same concept).
7) The percent of times the firm receives its holdback on the attorney’s matters.
8) The percent of times the firm receives a bonus on the attorney’s matters.
9) The percent of times a client with repeat business hires us for additional matters.
10) The number of times the attorney presents his or her issues in collaboration sessions.
These are some examples of different things that can be looked at in some objective manner. Obviously there are others (lots of firms measure hours!), and I am certainly not suggesting that any or all of these are appropriate for other firms, or that any is intrinsically more important than any other. But each relates to certain behaviors that some firms want to promote. Over time, the numbers paint a picture of performance that is revealing.
I invite New Normal readers to offer examples of other things that can be measured and why they should be. The more exhaustive the list that can be prepared, the more useful the list will be for all interested in trying to implement some measurement practices.
Patrick Lamb is a founding member of Valorem Law Group, a litigation firm representing business interests. Valorem helps clients solve their business disputes and coping with pressures to reduce legal spend using nontraditional approaches, including use of nonhourly fee structures, coordination with LPOs or contract lawyers, joint-venturing with other firms and implementation of project management tools to handle lawsuits or portfolios of litigation.
Pat is the author of the the recently published book Alternative Fee Arrangements: Value Fees and the Changing Legal Market. He also blogs at In Search Of Perfect Client Service.