By Robert Falk, general counsel of the Human Rights Campaign; and Gregory O. Olaniran, partner of Mitchell Silberberg & Knupp LLP
We all want more productive relationships between in-house and outside counsel. With high billable rates for external counsel, some in-house lawyers may presume that paying invoices is sufficient to guarantee the best possible outcomes at all times. However, savvy in-house counsel understand that they are not represented by firms, but by people. And they invest in managing the people who are part of their outside counsel teams, being clear to establish expectations, discuss processes for working together, provide feedback, and take the time to review projects once completed with a view to improving future work. This is not inherently a time-consuming process, and the return on investment can be the elevation of good teams to great, and great teams to exceptional. Here’s how:
1. Make counsel aware of your organizational objectives
You often challenge outside counsel to know your business. While outside counsel typically endeavor to do so by poring over publicly available information, such information alone will not provide your view of your business. Teaching outside counsel your business — the company’s strategic plan, business objectives, and risk tolerance — from your perspective and in your words, provides the clarity they need to operate as effective members of your team. Equally important is conveying the priorities of the legal department to your counsel, particularly as it relates the company’s overall objectives. This effort includes identifying for outside counsel, your internal stakeholders, and their respective interests in the outcome of a particular dispute or transaction — this is not publicly accessible information.
2. Set expectations early
If you’re going to have a longstanding relationship with outside counsel, either for one large project, or for a series of projects over time, then the work will be more productive and cost-effective if you set aside time to set expectations and to provide feedback on an ongoing basis. This may require a bit more of your time, but it does benefit to commitment to the process. There is not a “one-size fits all” approach here, but here are some practices that we have seen as being highly effective.
3. Create a “check-in” system
In addition, provide quick feedback as the work is underway. If the project is large, then consider a designated “check-in” time that includes both a status report on work underway and clarifies expectations on next deliverables. In addition, the check-in can include short conversations on past deliverables with an eye to making future deliverables more user-ready. For example, you could say, “Thanks for the memo you created for our CEO. The content was exactly what I needed. For future reference, I made the attached revisions because the format is more likely to help him focus on the issue.” These three sentences along with a redline should mean that, in the future, you will spend less time editing outside counsel’s work for internal purposes. Similarly, you could use the check-in to describe an unfurling issue that is creating a sense of frustration. Many of our outside counsel would appreciate receiving a message such as, “You need to understand that I receive an average of 250 emails a day. I’ve been pleased with your firm’s work, and am glad that you are now handling multiple projects for me. However, I feel like I’m getting inundated with emails from too many members of your team. Could you designate one person to provide me with a daily update email unless something is urgent?” Without being told, each project leader is likely to provide separate communications to demonstrate that they are being responsive.
4. Make time for post-performance feedback
During the course of a project, in-house and outside counsel typically communicate very frequently about a plethora of issues, availing themselves of all the tools that technology has made possible — email, phone calls, text, video conferencing — and doing so at unusual times of the day and for weeks on end as the matter requires. In many cases however, once the matter has concluded, in-house and outside counsel seldom set aside a time to talk specifically about outside counsel’s performance. The often-overlooked feedback phase is a critical element of managing outside counsel effectively because it can improve performance on subsequent engagements. Outside counsel are always interested in their performance because they are, for the most part, wired to please their clients. Providing feedback to outside counsel may seem at first like an arduous task, but it should not be. Remember, this is an investment. Therefore, discussing what was done right and areas of improvement will have long-term positive effects outside counsel’s performance. No topics about performance should be off-limits so long as the exchange is civil and respectful. Thus, clarity of direction, planning issues, fees issues, as well as conduct and attitude are fair game for feedback.
5. Catch people doing something right
Feedback does not have to be negative. There’s an old Southern expression, “You catch more flies with honey than you do with vinegar.” This is consistent with well-known behavioral research that there is a direct relationship between positive reinforcement and better performance. Simply put, most people respond better to praise than punishment. When most of us think back to our own careers, it is been the time that we have been properly acknowledged that have felt most rewarding. Your management of outside counsel (and internal staff) needs to incorporate the praise principle.
We are strong believers in “catching people doing something right,” meaning that when you see exceptional behavior or outcome, you need to acknowledge it 1) quickly, 2) publicly, and 3) specifically. This is simply the most effective way to demonstrate appreciation for thoughtful work. The recognition needs to be quick, because it demonstrates that you are paying attention to what people are doing. To the extent possible, it should be public because that promotes the status of the individual. And it should be specific, so the individual sees that you understand the value of his or her contribution.
6. Discuss opportunities for improvement directly and constructively
While we recommend praising in public, correction needs to be done in private. Nobody likes to be embarrassed publicly, and a public thrashing is only likely to lead to blame shifting. If performance has been below expectations, that message needs to be delivered in a manner where it can be heard. That is usually best done one-on-one, and preferably, in person or via voice conversation.
The conversation about subpar performance or identifying areas of improvement should be very open, honest, and respectful. Again, consistent with the positive reinforcement principle, start with what went right. Did outside counsel respond to your questions in a timely fashion? Did she write a good brief? Did she present well at oral argument? How did he handle the cantankerous opposing counsel or party. Pointing out the good at the beginning of the conversation sets the tone for a constructive exchange instead of one filled with finger pointing and defensiveness.
7. Invite conversations on process improvement from outside counsel
As professionals, we should be working on our own professional growth and figuring out how to better serve our clients. Like anybody else, we need feedback on how to do so. Outside counsel can be a useful source of that kind of feedback. First, they may see you more in the trenches of the legal issues that you manage than your internal clients. Second, they probably can make comparisons between how you manage a situation and how their other clients may approach a similar problem. Your outside counsel should also be invested in your success in the organization. So why not enlist them as allies in your professional growth?
When you are doing a debrief of the project or at the end of the year, you may want to consider asking questions such as the following:
- What suggestions do you have for helping me manage these matters more effectively or efficiently?
- What practices do your other clients use that might help me in my practice?
- What could I be doing to be working more effectively with you and your team?
- How do you think we could do even better next time?
Besides making you a better in-house lawyer, this kind of reverse feedback reinforces your outside counsel’s understanding that they are part of your team.
The above suggestions are not by any means an exhaustive list of “to do’s.” Also, many of you already engage in some of the suggested practices. The overarching point is that investing in making your outside counsel a part of your team opens up the process for continuous process improvement. This may take a little more of your time, but it does require focus. Set expectations early, and do course corrections as needed. Take the time to ensure that they understand your business as you see it. Celebrate their successes with them in a public manner. Do not shy away from difficult conversations, but make them objective and specific. In the end, your leadership in this area will result in a more efficient and effective legal program for your company.
For further reading, download the ACC Guide to Managing Outside Counsel. The guide addresses a variety of methods for increasing value by improving relationships with outside counsel - including success measures, firm selection, fee-setting and performance evaluation.