Author: RWS_01

Over 20 years’ experience developing and implementing effective business development strategies in law firms across Australia and Asia.

The R.U.L.E.S – again!

R.U.L.E.S.:

  • Realization
  • Utilization
  • Leverage 
  • Expense(s)
  • Speed

Taken from Robert J Arndt’s 1988 publication ‘Identifying profits (or losses) in the law firm‘ a flawed metric to determine:

  • which lawyers and partners were making a profit,
  • which practice areas were making a profit,
  • which matters were more profitable than others, and
  • which clients were more profitable than others.

But, is this really the way forwards when planning for 2019?

Would be interested in your views.

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Okay you can keep the ‘Legal’ tag; but it’s just Project Management!

I’ve been ‘white-boarding’ legal matters since my days helping out on front-end major projects back in 1996; so the concept of ‘mapping out’ how a transaction might progress, what may be ‘in scope’ and ‘out of scope’, the approximate amount of time the transaction may take and how we are going to resource it are not new to me. In more recent times (largely following the GFC in 2008) the legal industry has formalised my approach of ’white-boarding’ matters to become Legal Project Management. 

While I was never really that sure over the years how Legal Project Management differed from the more general Project Management, I have been assured – on numerous occasions – that there is a difference. When asked how, the most common response I received was that:-

  • Legal Project Management is the discipline of project managing ‘tacit knowledge’ – as ‘knowledge workers’, while
  • Project Management is the discipline of project managing tangible products, e.g., the construction of a hospital.

And until the last month or so I thought that was a pretty good answer.

So what changed?

Well, in the last month and a bit I have attended a collective 5 day (2 day and then a 3 day) course on Project Management Fundamentals run by PM-Partners Group here in Sydney.

The two day Fundamentals (essentially, theory) session was outstanding and broken-down into the following nine (9) modules:

  1. What makes projects succeed (and by implication, fail)
  2. The essential project management philosophy
  3. The project life cycle
  4. Project planning – project definition and scoping
  5. Project planning – creating the WBS & schedule
  6. Project planning – estimating
  7. Project risk
  8. Project execution & control
  9. Project closure

In turn, if you were on a course where you learnt all about: 

  • scope creep
  • the difference between what a risk is and what an issue is (hint, one has happened and the other hasn’t)
  • how to do a business case and a project plan
  • the triangle of scope, cost, time and quality
  • the four dependency types [finish-start; start-start; finish-finish; and start-finish], and
  • you get to work on creating a Work Breakdown Structure and Estimating (Optimistic, Pessimistic and Most Likely – also looking at the Cone of Uncertainty)

Wouldn’t you think you had been on one of the best Legal Project Management training courses around?

Well, that’s exactly what the two day PM-Partners run Project Management Fundamentals course taught me and I have walked away from that course thinking to myself that you can keep the classify ‘Legal’, at the end of the day it’s project management and it’s this type of project management we need to get better at.

My biggest take-out though?

Understanding the difference between a risk and an issue, because anyone doing pricing should get their head around this because it really is as important (and probably goes hand-in-hand with) as what happens with scope creep [helpful extra tip: want to understand scope creep, look up what happens with the formula: n (n – 1) /2].

Get in touch if you want to hear/find out more, otherwise get yourself on a really good PM Fundamentals course because I can guarantee it will pay for itself!

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#RIP to the #RFT?

I came to Australia in 2007 to fill a tender writing role. Till then, while I was familiar with responding to tenders, I hadn’t comprehended that responding to tenders could be a full time role.

Since 2007 though, on average, I’d guess that I have responded to one RFT – panel or project – per week (and I should add that during this period my roles have changed from tender heavy to tender light to tender heavy without that much difference in tender workload). I would guess that I also probably respond to one Request for Quote (RfQ) every two days and I must assist with at least two capability statements per week.

What I’m trying to say is this:- I’ve worked on a lot of proposals over the past decade.

And why wouldn’t I have? So far as I’m aware, in Australia:-

  • every level of government – Federal, State, Territory and Local – is panelled to some extent. A number of states, including NSW, QLD, Vic and WA also have collective Local Council panels.
  • approximately 80% of the ASX 200 is panelled.

That’s an awful lot of tenders – some of which are public and others invitation only.

Right about now you’re probably asking why this all matters?

The answer is this,  last Friday Corporate Counsel reported that ‘Barclays Looks to Shake Up Law Firm Panel Model in Coming Years‘, going on to state that:-

“Beginning in 2021, Barclays will ditch RFPs and adopt a more flexible approach to outside counsel management.”

[Noting that the terms RFP and RFT are largely inter-changeable]

Having been at the coal-face of requests for tenders for so long, this is music to my ears!

Only, as a half decent tenderer can tell you, on closer inspection it isn’t.

Chris Grant, the head of Barclays’s firm relationships, has come up with guidelines that the Bank hopes will allow them to build better connections with their firms. These include Barclays using a “gateway process” that includes a probationary period for new legal service providers.

Hang on a second – this is suddenly sounding like an ad hoc – as opposed to a structured – RFT process.

Shame really as one day B2B clients will come to realise that legal panels are a very costly and time consuming process.

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Law firms need to change their definition of “success”

Read an interesting post by Alison Laird last weekend. Interesting as it was, Alison’s post (‘It’s Time’) isn’t the first to call ‘time’ on hourly billing. Nor, in my opinion, will it be the last.

Why do I say this?

Because, as important as the calls for “more for less” and “cost certainty” have been for in-house lawyers and clients more generally, behavioural evidence has shown they’re not really that important to law firms and that clients (in the more general definition of that term) are not willing to push their legal service providers to move away from hourly billing, if – caveat –  they can get a “quote” (read cap or fixed fee expectation).

In short it’s a game. Client says: “we want cost certainty”. Law firm says: “we bill by the hour”. Client says “meet you in the middle – capped/fixed/discounted fees”.

But it doesn’t have to be this way.

What if your law firm really wanted to be “entrepreneurial” and decided to think outside the box – starting by changing its definition of “success”?

What if, instead of defining “success” as being the number of hours a year a lawyer works (note not paid for), and/or the amount of revenue the lawyer earns (note not profit), the definition of “success” becomes:

Success is measured in terms of the value received by the customer and the law firm.

I agree, not perfect.

But imperfect as it is, it’s a start. A start of a conversation we need to have as a profession: “How do we measure success?”.

Because until we have this conversation, all other conversations – including that around hourly billing (not pricing) are meaningless.

rws_01

When Seth Godin’s simple contribution analysis for pricing doesn’t work

Last week Seth Godin wrote a brilliant post titled ‘All other things being equal (simple contribution analysis for pricing)’.

As the title of the post suggests; in his post Seth suggests that if you know your cost of production you can use this as the basis for calculating your go to market price – and ultimately this will effect your profit margin (price – cost = profit).

In Seth’s example he uses the price points of $7 and $9 and states that, with a cost of production of $5-:

.. all other things being equal, you’ll need to sell twice as many at $7 as you’ll need to sell at $9.

($2 profit per unit at $7 as opposed to $4 at $9).

And Seth is right. So what has this to do with law firms?

My answer:

this is exactly how law firms have priced their services (hourly rates) for the last 20 years.

And it totally falls apart because of what we call in the business the “average billing rate”.

Back up: what exactly does that mean?

Well we know what our cost of production is (only we don’t because we will argue all year long over “shared costs” etc) and we know what our “rack rate” is (only we don’t because there are so many of these we never sure which is the “actual” rack rate) so we know the profit margin.

Using Seth’s example, our cost of production is $5- per hour and our rack rate is $7 per hour or $9 per hour. QED, $9 per hour lawyer is making more “profit”.

But…

say $9 per hour’s realisation rate is 70% and $7 per hour lawyer’s realisation rate is 100%…

..then you have a whole different story as now $9 an hour lawyer’s Average Billing Rate is less than $7 an hour lawyer’s.

And suddenly ‘simple contribution analysis’, which law firms have been using ever since I joined the profession over two decades ago, becomes meaningless.

But ultimately Seth is right:

Price is a story, it’s a story we tell ourselves and others about what we have to offer. But price is also the path to being able to stay in business.

and also: his post clearly states “All other things being equal“, which we all know will never be the case in the matrix known as a law firm!

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Fixed or capped fees – as a client which would you go for?

Last week the American Arbitration Association (AAA) announced that it would introduce an alternative fee arrangement (AFA) option on “eligible cases” offering to help resolve B2B disputes through the arbitration process (source prnewswire.com).

The AAA’s claim is this is the “first of its kind to be offered by a national provider of alternative dispute resolution (ADR) services“.

So let’s check it out.

Setting aside the “eligible cases” issue, what are the AFAs being options being offered?

According to the AAA:

  • Fixed Fee Arrangement, whereby an AAA arbitration panel member proposes a fixed fee for the pre-hearing, hearing, and post-hearing phases of arbitration which must be approved by all parties.

  • Capped Fee Arrangement, whereby an AAA arbitration panel member proposes a fee cap for the entire arbitral process which must be approved by all parties.

Wait a second, as you’ll know from my last post, capped fee arrangements are not an AFA and any pricing expert advising you otherwise needs to be shown the door.

But…

Given the choice – as a client of a  law firm client – which would you choose?

My take: depending on how different the two quotes are – which I’m guessing would be done on an “hourly rate x number of hours x which way is the wind blowing calculation“, I’d go capped fee (the exception here, a really low ball fixed fee).

Why – given my objection to this?

Well, because a fixed fee is – fixed. While a capped fee is – capped.

So if your lawyer comes in under cap (using hourly rates), they can only bill you what they have charged. And if the lawyer breaches the cap (using hourly rates), then they cannot charge you any more than the cap – hence it’s name.

So, as a client, I win both ways.

While a fixed fee is fixed. So if the lawyer uses time-sheets (hourly rates) and comes in under the fix, back luck you client. On the flip side, if the lawyer uses time-sheets and comes in over the fix, back luck law firm.

QED: in this case, I’d go the capped fee option.

The sting in the tale here though is these 7 little words:

“which must be approved by all parties.”

which despite India Johnson, President and CEO of the AAA-ICDR, comment that:

“Alternative fee arrangements align with our mission to add cost savings and fee transparency and predictability to the arbitral process; the AAA and its Roster of Arbitrators are proud to be the first arbitral institution to offer an AFA option to parties and counsel seeking to resolve their disputes through arbitration,”

means the reality is it will never happen.

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Why most law firms don’t need to hire a Head of Pricing

Following a conversation I had recently with John Chisholm, I had reason to revisit Patrick Johansen’s website patrickonpricing.com and re-read both his Continuum of Fee Arrangements™ and his Roll Call of pricing professionals.

Let’s get controversial. Re-reading Patrick’s stuff it occurred to me that there are an awful lot of law firms have hired pricing experts (Patrick has over 300, but it wouldn’t surprise me if that number were closer to 500) on -most likely- really good money who, get this: don’t really need them.

Why do I say that?

Looking again at Patrick’s Continuum of Fee Arrangements, Patrick has sixteen different pricing options available for law firms to offer clients:

  1. Hourly – the ‘go to’ pricing option for law firms. But are hourly rates pricing or billing?
  2. Volume – nope, not a pricing mechanism. It’s a discount. Not even an alternative fee arrangement (AFA).
  3. Blended – isn’t that an hourly rate?
  4. Retainer (Periodic) – okay, now we are talking. Law firms may need some help from a pricing expert on this one. But wait up, how much of a law firm’s revenue is done on a retainer mechanism? Less than 5% would be my guess. Justify the cost of pricing expert on the books (as opposed to freelancing), unlikely.
  5. Capped – OMG don’t get me started on capped fees. Known as the “heads I lose, tails I lose” pricing mechanism for law firms. I understand why clients love capped fees, they cannot lose. But any pricing expert on a law firm’s books who recommends capped fees as an option deserves to be sacked immediately.
  6. Task – okay, but isn’t this really just a fixed fee?
  7. Flat (Transaction) – okay, but again: isn’t this really just a fixed fee?
  8. Phase – sounds like a fancy name for task to me!
  9. Fixed – Nirvana. Now we need a pricing expert.
  10. Contingency – implies it needs to be contingent on something.
  11. Portfolio – my view is that this is one of the most misunderstood and under-used of the various pricing options. I’m not sure there are many pricing experts in commercial law firms who do this well.
  12. Hybrid – yeah right. Are we talking cars now?
  13. Holdback – this isn’t pricing. This is a reward mechanism. I could do all the pricing calculations in the world, but if the legal team provide a rubbish service then the client will withhold a part of the fee.
  14. Risk Collar – is hourly billing with an up and downside calculation mechanism.
  15. Success/Bonus – again, performance related.
  16. Value – right, and how many law firms are really doing this? Few and far between. Hell, most law firms don’t even understand the ‘value’ they provide (see ‘discounts’ and google number one AFA offered by law firms). No, nice to say; but a very long way from getting it.

So looking at this list I ask myself: “How much science is involved in pricing legal services?”. And the answer I come up with is: “Not a lot”.

Taking all this on board, I get why law firms hire ‘pricing experts’ out of accounting teams. And maybe that’s where the real opportunity is being missed.

But trust me, for all but two or three of the above pricing options, you don’t need a pricing expert – you need an accountant. So don’t waste your money hiring one.

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