Memo to In-House Counsel: Minimizing Communications Babel, Part I

If it did not depict so much dysfunction, the incessant mud-slinging between in-house counsel and law firm lawyers about abysmal communication would be almost laughable. Instead it reveals a continuing and unresolved component in the law firm-client relationship, a serious and costly barrier to effective collaboration.

Bad Communication:  Who’s to Blame?

For years, every client attitude survey has flagged “poor communication” as the number one gripe in-house counsel have about law firm service delivery.  Over and again, in-house folks report that outside counsel:

• Are unresponsive
• Aren’t attuned to client needs and priorities
• Talk too much and listen too little
• Communicate only when they want to
• Focus on narrow legal issues and not broader client business issues
• Don’t keep the client in the loop about changes in scope and pricing
• Are slow to report problems, crises and busted budgets
• Are reluctant to talk about budgets, billing and money in general

But, in-housers, you are not above reproach.  In the course of working for years to help align and untangle communications between in-house lawyers and outside counsel, we’ve heard constant complaints about shortcomings at your end. When the ball is dropped, the message garbled, the instructions vague or the expectations left unarticulated…all too frequently, law firms say, it’s your fault.

Shots to the Jaw

Specifically, here are the shots you frequently take from outside counsel:

• You’re the ones who are unresponsive. You fail to respond timely to questions, requests for information and documents, and – particularly – demands for important decisions.
• You’re unclear about how you define value. You’re vague about what goals and outcomes will define success for a particular matter or for you.
• You don’t put enough time and effort to project scoping.
• You’re not specific enough about timing, internal calendars, schedules and deadlines, and then you blame us when things aren’t done when you want them.
• You aren’t particularly helpful when it comes to allocating roles, responsibilities and accountability between in-house lawyers and outside counsel. In addition, roles often seem to  change -- without notice -- when it comes time for the work to be done, with many tasks suddenly dropping on to our shoulders.
• There’s a lot of communication Babel on your side of the wall: your legal staff, compliance people, business units and corporate management all weigh in with their own opinions, demands and political agendas. We not sure what or who to listen to.
• Similarly, your organization’s decision-making loop is unclear and inconsistent. It’s hard for outside counsel to tell how long it will take for a decision to go up and back down the corporate chain of command.
• You’re both conflict-averse and risk-averse. You often avoid or withdraw from those “hard conversations.” You often pull your punches, mask your impatience, and keep underperformers underinformed.
• And finally, you often do not specify how you want to be communicated with: in what form, how frequently, about what content, in what detail. We remember the general counsel of a public financial services company once saying, “before you ask me out to lunch, first find out if I take lunch.”

Memo to In-house Counsel

It may surprise you to learn that law firm lawyers do not know that your hair is on fire.  They really don’t understand how busy you are, how many competing demands there are on your time, and they don’t know how often you are forced to communicate on the fly, make snap judgments, defer decisions, delegate and procrastinate.  They brand you as unresponsive because they think in-house life is calm, quiet and manageable, and that it ends each day at 5:00 PM.

As we’ll discuss in our next post, better communication planning is the way to transform the longstanding communication problems into more effective and more efficient communication solutions.

Grubby Money

Meanwhile, we need to reserve a special communication booby prize, on both sides, for discussions involving money – anything relating to rates, costs, pricing, budgets, and problems therewith.  As one lawyer in a Legal Project Management training workshop described many lawyers’ aversion to talking about bucks, "no one wants to talk about grubby money.”

The historical reluctance of outside counsel to talk money matters – rates, prices, costs and budgets – is well-established and frequently criticized.  But at a time when almost every general counsel reports draconian budget pressures and a pressing need to control outside legal spend, it is astonishing how coy in-house counsel can be about their budget expectations and constraints.

Frequently, their vagueness during scoping and pricing negotiations can make money matters sound like a guessing game to outside counsel, communicating, in effect,

I have a figure in mind, but I’m not going to tell you what it is.”

When we asked one assistant general counsel why she was not more candid and straightforward in budgeting discussions, she replied: “Simple.  The person who talks first about money usually loses.”  In other words, communication about money is inherently adversarial.

When a client does not articulate succinct and clear performance standards (including cost expectations), it makes it nearly impossible for outside counsel to monitor and manage matters to meet client expectations.

By way of example, partners often report that clients ask them for budgets, but that no one on the client side seems to care about them once a matter is underway.  They may even be required to update those budgets periodically, but it appears that the client is just ticking off some check-box (“Budget Update:  √”), and does not really care about the accuracy of the information.  What message does that send?

It’s far better, no matter how uncomfortable for the parties, to talk about money as well as about when, how, to whom and what should be communicated during a matter.

In the next post, we will address how to achieve clear communications.

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