Legal value

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

For, if I send my lawyer a 90-page indenture and it comes back unmarked bar the words “all fine” scrawled across the front page, yet still accompanied by a hefty note of costs, do I feel I am getting value for money?

Generally, I do not.

On non-barking dogs and night-times

This is so even though I might be: a dog that barketh not in the night-time brings no comfort, even when there is nothing to bark at.

So, commercial lawyers have developed techniques for barking ostentatiously during hours of darkness: formal alterations that alter no substance, but exude the psychological safety that comes from seeing they have indeed pored over the document, buffing and polishing it to a high forensic 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 its removal. Thus, over time, legal forms tend towards barnacle-encrusted, impenetrable mush, courtesy of what Douglas Adams and John Lloyd would call “clabby” conversations.

Confronted with such a gambit, even the most sainted, easy-go-lucky types on the other side cannot help falling into a “ditherington”.

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 their behaviour is, as long as it brings in fees. Fees, one can measure. Fees, one can bank.

Legal practice management consultants may help by comparing inputs to outputs; devising metrics to predict the optimal amount of defensible literary lollygagging to maximise fee returns, but this will not work inhouse, where lawyers collect no fees. Here, the putative 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 it is not absolutely necessary.

In-house legal departments exist to throttle legal expense.

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

Hence, the best way of measuring inhouse legal value is also by its silhouette: a business may not be able to count the ways that inhouse lawyers sprinkle their magic on its forward health and viability, it certainly can count the ways they don’t: the times they are hindered by the quotidian distractions of the life bureaucratic: the box-ticking, form-filling, meeting-attending and perpetually re-advising on issues it is, fundamentally, the business’s job to know already.

These “key non-performance indicators” could be counted and presented to the Opco during its weekly stakeholder check in conference call, on an attractive slide, replete with RAG statuses, downward-sloping graphs and Gantt diagrams charting the department’s ascent to a condition of crystal purity, with maximum scope for offering untrammelled, ineffable excellence.

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