legal

Secondments, labour arbitrage and a new race to the bottom

Follow me:

  • In-house teams have been the biggest ‘growth’ area in legal post 2008 and some in-house teams are now bigger than the law firms they previously outsourced worked to
  • Most GCs report to the CFO
  • GCs are increasingly under pressure from the CFO to reduce their ‘cost’ (including bonuses now linked to reducing cost – note: not external legal spend)
  • GCs have effectively two cost centres: ‘labour’ or ‘ external legal spend’
  • Procurement tells GCs they can reduce both ‘labour’ and ‘spend’ at the same time – secondments (heavily discounted at daily or weekly rates in RFPs – don’t need to advise out and don’t need to hire in-house!)
  • Law firms enter the discounted labour arbitrage market

And a new race to the bottom starts*…

As always, interested in your thoughts/views/feedback.

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*welcome to the party LoD

What is the biggest pricing problem law firms are facing today?

This week’s episode of the Impact Pricing podcast (episode 20 – ‘Mastering SaaS Pricing: How to Price and Package Your Service’) sees host Mark Stiving talking with Kyle Poyar, Vice President for Market Strategy at OpenView. By their own admission, Mark and Kyle geek-out over SaaS pricing theory and its KPIs, so this podcast is not for everyone.

What is interesting, however, is the response Kylie gives to a question Mark asks at the 23 minute 37 second mark.

Mark’s question:

What do you see as the biggest pricing problem that subscription companies are having today?

Kylie’s response:

…structurally speaking, companies are not spending enough time on pricing, they don’t take a scientific or rigorous enough approach to optimising their pricing and testing it and collecting data on it. And we have gotten smart about just about everything in technology and if you look at the level of sophistication of the operations of a technology company it’s like just so different from where we were a few years ago. But pricing hasn’t really changed and I’ve just started to hear of companies that are trying to bring on pricing talent and make their first dedicated pricing hire and have that happen earlier in their lifecycle; but then those companies are having trouble figuring out what’s the right profile to hire for, who is going to do a good job in this role, and then finding that talent and so I think like, structurally, their biggest challenge is just lack of great pricing skills…

In my opinion, that sums up pretty well the pricing problem that we have in law firms:- we’re in such a rush to show everyone how serious we are about the pricing issue/problem facing the industry (as in, alternatives to the billable hour, project management, process improvement etc), that we have hired Heads of Pricing by the boat loads, but a niggling issue remains – industry report after industry report that has sought feedback from clients indicates (some might even say, shows) that we haven’t gotten all that much more sophisticated or even better about how we price. If that’s the case, we have to ask: is there just a lack of great pricing skills in the industry?

As always, interested in your thoughts/views/feedback.

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NB: please ignore all comments Kylie makes about volume discounts prior to his comments above, as regular readers will know I don’t hold with those views!

The big squeeze is coming: Why it’s important to know if your practice is bespoke or precedent?

Hall Wang penned an interesting post on the Tom Spencer blog over the weekend that looked at two of the different types of consulting – Bespoke and Precedent (Bespoke and Precedent Driven – Understanding the Two Different Approaches to Consulting).

Wang explains the difference between the two as being:

Bespoke: This approach is like making a custom-tailored outfit whereby the focus is on what is unique about a client’s situation and then crafting a customized solution for the client. The mindset in this approach is to think about what might be possible to best fit the client’s needs.

Precedent driven: This approach is similar to the way you bake a cake using a cookbook; following the recipe, but making adjustments as time and available ingredients necessitate. The mindset is to find proven precedents and use them as a guide to provide reliable client recommendations.”

I like Wang’s terminology. I particularly like Wang’s use of ‘precedent driven‘ – an alternative to the stale and often misused ‘commoditised‘. It’s smart language, but I think it’s really important that lawyers and their support team understand the difference and workout which of the two their practice sits in.

So why is this even important?

Here’s the reason:- because if you operate a predominantly ‘precedent-based practice’, then you’re going to be feeling the forthcoming ‘big squeeze’ way more than is likely to be the case than if you run a bespoke practice.

What ‘big squeeze?’; my practice is already seeing an uptick in legal work you may be asking – see the latest Altman Weil ‘Law Firms in Transition 2019: Change Efforts Stalled in 2018 as Business Boomed‘ report for why this may be the case.

Well, as I recently blogged The State of Australian Corporate Law Departments Report 2019 has stated that “45% of Australian GCs are forecasting a decrease in their 2019 legal spend” – so ask yourself:- “Where is this massive savings going to come from?” Add to this the recent Thomson Reuters ‘Alternative Legal Services Provider Report‘ (February 2019) stat that

In just two years, revenues for alternative legal services providers have grown from $8.4 billion in 2015 to about $10.7 billion in 2017. This represents a compound annual growth rate of 12.9% over that period.

and it doesn’t take Einstein to tell you that a big (or bigger) squeeze is coming and that the middle – precedent-driven – market (where the majority of the market players sit) is going to be the epicentre of that big squeeze.

But knowing and understanding this is very important. It helps take you – as lawyers, business developers or leaders – a long way to understanding that in reality very few people want or need bespoke legal services; but what the really really really don’t want is a precedent legal service dressed up with a bespoke ‘full service’ price.

As always though, interested in your thoughts/views/feedback.

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“A lawyer’s time is the only commodity that we have to sell”

Earlier today I listened to a podcast on respected legal technologist expert/journalist/speaker Ari Kaplan’s Reinventing Professionals from May 2, 2019 in which he spoke with Josh Taylor, an attorney and the lead content strategist at Smokeball, a practice management software platform that started out life here in Australia and now appears to be mainly located in Chicago (although retains a presence in Sydney and Melbourne).

The first seven minutes (out of nine) I was entertained and thought were good.  But two minutes and twelve seconds from the end Ari throws out his last question (my transcript follows so sorry for any errors) to Josh:

Where do you see the use of technology in solo practices and small firms headed?

And Josh responds:

One thing that we struggle with so much, and I have saved it to the end here Ari instead of mentioning it as a pain-point upfront, the main part of the small law practice that we see people failing at day after day is accurately tracking their time and either on the the extreme cheating a client by over estimating, which is very rare, more likely and more often we see small law firms cheating themselves by under valuing every minute they have; when I go around speaking to bar associations around the country I always say “you know a lawyer’s time is the only commodity that we have to sell, we don’t make a thousand widgets in a minute that we can then sell for the same price, we have minutes in a day that is the only thing that we can sell out to our clients” because we cannot double bill people so to value and track time accurately I think is where legal tech is going to start leading the way…

Leaving aside the whole time-based billing versus value-based billing discussion, even if you only believe in time-based billing (cost-plus or however that looks) and never want to entertain the notion of any kind of alternative pricing method, to say:

a lawyer’s time is the only commodity that we have to sell

is so far removed from reality it’s not funny.

What a lawyer’s ‘commodity’ is, is the knowledge they have acquired, the experience they acquired to be able to apply that knowledge to the situation their client is facing, and the insight to do this in a valuable and respectable way.

Regardless of how you bill – as a lawyer that is the only commodity you have to sell.

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Would you use an unlicensed or unqualified legal advisor?

Last Friday’s (April 26) The Soul of Enterprise Free Rider Friday podcast (Millionaires, Marxists, and Minimum Wage) with Ron Baker and Ed Kless, included a ‘stack’ (their term not mine) by Ed on the news that “Kim Kardashian Is Right: Lawyers Shouldn’t Have to Attend Law School”. As someone who knows absolutely nothing about the Kardashian family (nor wishes to), not much in that – apart from the comment that Ed and Ron go on to make in respect of Episode #225 of their series of podcasts in relation to “occupational licensure”.

In short Ron and Ed talk about the fact that there are some jobs around the world where you need a ‘licence to practice’ – examples: a barber (hat tip to Ron’s Dad there), an accountant, and even a lawyer.

On the back of the Kim Kardashian issue, Ed and Ron then go on to ask this question:

If you know someone isn’t qualified (e.g., don’t have a law degree) or isn’t licensed (e.g. have a practising certificate), should you still be able/allowed to ask them for professional advice – provided that you sign a waiver/agreement/whatever stating that you know that persons isn’t qualified or licensed to provide the requested advice?

Never, no way, stupid idea.

And I would agree with you.

But wait, we’re all adults here and should be allowed to determine our own future and make our own decisions.

Exhibit A: this is an excerpt from the British Government’s website (April 2017) in relation to obtaining legal advice in Thailand:-

“There is no restriction on any Thai national , with or without a law degree [bolded and underlined for emphasis by me], to offer you legal advice.”

Now Thailand is a civil law jurisdiction with a codified law, but still…

…leaving aside the whole issue of how stupid you may or may not need to be take legal advice from a non-licensed, non-qualifed expert (bought a pre-pack will lately?) – here’s a precedent.

There are “lawyers” who advise “on the law” who are not educationally qualified (as opposed to possibly life) or institutionally licensed.

Interesting as that all is though, that’s Thailand – hardly the US, UK or Australia.

Well hang on a second…

Listening to Ed and Ron’s podcasts there are States in the US where you can now obtain ‘legal’ advice from someone who isn’t qualified or licensed, provided that you sign a waiver saying that you knew this to be the case.

And, in my view the following comment from legalfutures.com – reporting on The UK Legal Services Consumer Research Report 2019 yesterday:-

A smaller majority (58%) would be prepared to use freelance solicitors, due to arrive this November with other Solicitors Regulation Authority rule changes, if they could save money on fees.

means they are not a long way behind.

As always though, interested in your thoughts/views/feedback.

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* if I have misrepresented or misunderstood my take-outs from Ed and Ron’s podcast, then I apologise to them.

 

 

‘How much are you charging your client for that value add?’

It’s a question I often ask law firm partners:

How much are you charging for that value add?

And nearly always the response I get is the same:- *shocked face look*.

Why, well because in my experience lawyers are willing to give something of real value away for free to a client in the hope that same client will then given them their legal work.

But it rarely works like that.

And, more importantly, it shouldn’t work like that in today’s world (if it ever really did).

Don’t get me wrong, there will always be a cost of doing business component to our profession. CPDs/CLEs for in-house counsel would, in my opinion, sit in this category (but not all L&D activity) [tip: if you do this, open a ‘value account’ for your client and put a nominal value, say A$200 per 1 hour session per attendee, again this to try and show the client (in $$$ terms) the value you are providing here].

Rarely though do lawyers give thought to the ramifications of when they offer their clients something of real value, that really differentiates their firm, and then they give the IP away for free in the hope of getting the “more profitable” legal work.

Case in point is the following comment attributed to DHL Supply Chain Americas GC Mark Smolik in an article in yesterday’s The American Lawyer by Gina Passarella Cipriani [‘GCs Are Offering Work on a Silver Platter—and Law Firms Aren’t Taking It’]

“On the matter side, DHL Supply Chain Americas GC Mark Smolik gave an example of what he wishes law firms would do—and it’s something none of his firms ever has. He suggested a firm might want to look at, say, all of the employment cases emanating out of his California warehouses. Maybe they find that 50 percent of the cases are coming from one warehouse, and one person is the culprit. The GC can then take that information to its business units and work out a solution. It makes the GC look good and it makes the law firm look good to provide that kind of actionable intelligence. Other GCs echoed similar requests during Legalweek’s Business of Law Forum.”

Getting down to the bare bones of my point though:- Mark doesn’t suggest this be done for free. And, in my opinion, done right, there is every chance Mark will pay for this value add.

But that’s just my take – as always, would be interested in your thoughts, views, feedback.

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‘Alternative’ – but to what?

For an industry that claims to make its livelihood on the definition, use and interpretation of words, in my opinion the legal industry has become rather lax in our use of the word ‘alternative’.

Big claim. So what do I mean by this?

Well, let’s look at the word ‘alternative’:- post GFC we hear the term ‘alternative’ almost daily in respect of ‘alternative fee arrangements’ (AFAS); and, ever increasingly, we now hear ‘alternative’ in respect of ‘alternative legal service providers’.

But how often do we ask – ‘alternative to what’?

Are we talking about ‘alternative’ to what we already have and do?

Because if that’s the case then we are not being true to our esprit de corps, namely ‘words have meaning’.

i.e. there is nothing ‘alternative’ in the term ‘alternative fee arrangements’. There are merely hourly rates, fixed fees and some sort of risk sharing arrangement fee agreement. In short, fee agreements.

And, as Heather Suttie eloquently put in her post today, there are no “alternative” legal service providers. There are just legal service providers (some of which, surprise surprise, serve different clientele).

But that’s just my take – as always, would be interested in your thoughts, views, feedback.

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ps: the only thing I would add to Heather’s post is Pangea3 – 2004