Posted Mar 4, 2014 2:45 PM CST
By Roya Behnia
Recently, I was on a panel on the future of the legal profession. As expected with such a broad topic, you can bet the lawyers in attendance had a lot to say. We covered alternative fee arrangements, the impact of globalization and the changing allocation of work between in-house and outside counsel. When the Q&A session started, I perked up when one audience member said: “I have been both a law firm partner and an in-house counsel. When I was at the company, I was told that I was delivering the Cadillac of advice when all anyone wanted was a Chevy. I was surprised that anyone would want any less than the best from me—is that common?”
This question reminded me how difficult it is for even the most sophisticated lawyers to adapt to new ways of providing legal services although their clients ask them to, something I wrote about in The New Normal in 2011. The assumption that the “best” advice is necessarily the most thoroughly researched and/or addresses every potential scenario reflects a persistent unease with departing from the risk-averse and almost academic way we have been taught to offer legal counsel. Starting with law school, we are conditioned to be uncomfortable with imperfect information.
The New Normal demands that lawyers act differently in order to keep pace with ever-increasing risk. To meet the expectations of business colleagues who have to make risk-reward decisions under demanding circumstances daily, I advocated adopting an “agile manifesto” for the provision of legal services, one that emphasized flexibility, collaboration and the realistic weighing of risk. As I wrote then, an agile approach would integrate lawyers into business teams to ensure alignment; move away from lengthy reviews of immaterial contracts towards “good enough” reviews; discard lengthy written documentation in favor of in-person dialogue and project plans; distinguish between legal and business risk and let the business decide the latter; write in plain English; and use metrics to demonstrate proof of value. Adopting these practices, I argued, would be uncomfortable but ultimately enabling of a closer connection between lawyers and their clients.
But how do you walk the talk of an agile approach? The legal team at our company has been a test case. The company, global industrial technology leader, had been going through a phase of renewed innovation and informed risk-taking in making business decisions. The legal team, used to an “old normal” approach, had been somewhat disconnected from the business. While providing top-notch legal advice, the team had little visibility in how overall business strategy was evolving, with some limited exceptions. Internally, the team was also disconnected from each other—the intellectual property team and the commercial team were run separately, and the overseas lawyers communicated only infrequently with the U.S.-based team. Communication tended towards long emails, and the business sometimes complained about long turnaround times. As in many legal departments, metrics were lacking, as was data that could be used to track productivity. As a group, we knew something had to change.
Let’s focus on two steps we took early in our transformation. First, we adopted operating principles for the department that tracked the values underlying an agile approach:
1) Continual collaboration with clients (i.e., the business).
2) Continual focus on client goals.
3) A strong bias towards simplicity.
4) Direct communication over complex documentation.
5) A commitment to flexibility and rapidity.
6) Realistic risk assessment.
We printed these principles on business cards and placards for our offices so that we would remind ourselves of the approach to take in giving legal advice. The nonlawyer staff also was expected to live and breathe these principles because they, more often than not, would enable the legal advice we gave.
With these principles in place, we then began to take small but meaningful steps to get better integrated in the business. For example, if we were going to collaborate effectively and keep our focus on business goals, we needed to be at the table. With a renewed focus on innovation as a strategic goal of the business, we embedded our intellectual property lawyers at all meetings of the cross-functional new product development teams. Before, they were given invention disclosures to analyze only after the fact. With their inclusion at the beginning of the invention disclosure process, these lawyers not only learned directly about where R&D was heading, but began to suggest inventions. The legal team became more valuable to R&D and marketing as a result, which only caused our IP lawyers to be in greater demand.
The same steps were taken with our Europe, Middle East and Africa and Asia regional counsel, who had not regularly participated in regional business reviews. With the lawyers at the table to hear business goals firsthand, the legal team spent much less time translating them to legal documents. This only helped us to respond rapidly to business needs. Finally, as a result of the business context the lawyers received by being at the review sessions, it became easier to offer advice that allowed the business to take some risks in order to achieve larger business goals.
We were successful in being at the table in large part because our business colleagues welcomed the lawyers in their general business reviews. This openness is a prerequisite for agile to work. Our integration would have been much tougher in a more siloed environment or where the individual lawyers were not already viewed with respect. But, even in environments that view the legal team as the “department of no,” agile is possible as long as the business is shown that allowing lawyers in will get them what they want—a responsive, business-oriented legal team that is willing to take risks.
Roya Behnia is senior vice president, general counsel and corporate secretary of Pall Corp., based in Port Washington, N.Y. Prior to Pall, she was general counsel of a publicly held Internet marketing company. She started her legal career at Kirkland & Ellis in Chicago, where she was a litigation partner.
Editor’s note: The New Normal is an ongoing discussion between Paul Lippe, the CEO of Legal OnRamp, Patrick Lamb, founding member of Valorem Law Group and their guests. New Normal contributors spend a lot of time thinking, writing and speaking about the changes occurring in the delivery of legal services. You’re invited to join their discussion.