Legal value

The dilemma for professional services providers is how to show your positive contribution without actively destroying value.

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For, if I send my lawyer a 90-page indenture and it comes back unmarked, “all fine”, but accompanied by a hefty note of costs, do I feel I am getting value for money?

Generally, I do not. Even though I might be. The dog that doesn’t bark in the night-time brings me no comfort, even if there is nothing to bark at.

So, lawyers have developed techniques for making formal changes which do not alter the substance, but signal that they have indeed pored over the document, subjecting it to their unique forensic consideration — that it has been buffed and polished to a high sheen. You can spot these parenthetical statements, which we call flannel in these pages, by their tells: “for the avoidance of doubt”, “without limitation...”, “whether or not...”, or “notwithstanding the foregoing...”.

It is a paradox that, however tedious it is to have some cretin add this unnecessary heft to your draft, it is even more tedious to insist upon their removal. Thus over time legal forms tend towards barnacle-encrusted, impenetrable mush.

Measuring legal value

All this presents quite the predicament to those lawyers whose output and productivity cannot be measured in billable hours. That is, in-house legal eagles.

For those in private practice, it does not matter how counterproductive, petulant or lily-gilding is their behaviour as long as it brings in fees.

Fees, one can measure. Fees, one can bank.

Inhouse lawyers collect no fees.

Legal practice management consultants may help law firms by running algorithms comparing inputs to outputs and devise metrics predicting the optimal amount of literary lollygagging to maximise fee returns but an inhouse lawyer’s putative — granted, quixotic — quest is not to produce “legal work product”, nor even “timely, excellent, and great value-for money legal work product”, but to avoid generating legal work product wherever possible. In-house legal departments exist to throttle legal expense.

You can’t measure this with metrics of key performance indicators. Unavoidable legal process — things like customer contract negotiation — can certainly be streamlined, widgetised, productionised, but once that is done, it becomes an operational function, not a legal one, and legal’s contribution to its ongoing success, again can only be measured in silhouette: how infrequently legal is obliged thereafter to get involved.

Hence, the best way of measuring inhouse legal value is also by its silhouette: just as a business cannot count the ways that its inhouse lawyers sprinkle their magic on its forward health and viability, it certainly can count the ways they is prevented from doing so by quotidian distractions: the time they spend box-ticking, form-filling, meeting-attending and re-advising the business on things it is, fundamentally, the business’s job to know already.

These “key non-performance indicators” could easily be counted and presented to the Opco on an attractive slide, replete with RAG statuses, with downward-sloping graphs charting legal’s ascent to untrammelled, crystalline excellence in the weekly stakeholder check in conference call.

But are they, in any organisation on the planet?

Are they heck, as the Americans say.

See also

• Key non-performance indicator
• Anal paradox
• Flannel
• In your face