Why it can be okay for lawyers to just say no

Tim Bratton is GC of the FT and blogs about issues facing in-house counsel

Eventually, within that period of time, the tidal forces of the email inbox prove too powerful and the new in-houser will come and talk to me to say they have more work to do than they can actually manage.

Herein lies a fundamental difference between in-house and outhouse: the ability to “just say no” to a client, or to put it less controversially, the need to prioritise between different clients’ workstreams and communicate to clients where they stand in the prioritisation queue compared to other clients.  Whilst for outhousers the idea of being able to tell clients where they sit in the queue might sound like an attraction, getting  this right and communicating it in the right way remains one of the hardest skills an in-house lawyer has to develop and master.

Over ten years on, I recall a meeting in my last few months of private practice.  ’Twas me, my supervising partner and the GC of a large bluechip.  We met, talked about the dog’s breakfast of a contract structure and documentation the client was using, agreed to rewrite them, and then came the question that every junior lawyer fears being asked of their supervising partner.  “When do you think you can reissue the drafts.”  At that point all meetings go into super slow-motion, the partner turns his or her head slowly to the junior, smiles in a fairly unpleasant manner (think Jack Nicholson in The Shining), then turns his head slowly back to the client and this time gives a winning white-teeth Hollywood smile (think Cameron Diaz or George Clooney) before saying “I’d say tomorrow or the next day latest.  Would that be okay?”   Meanwhile a silent but migraine-inducing “Noooooooooooooooooooo” sounds in the associate’s head as they calculate all else that needs doing within the same 48 hour period.

Now, there is much that is critical to be said from an outhouse perspective about the above - inadequate associate resourcing, unnecessarily ambitious promises to clients, making unilateral decisions that affect others without pre-discussion, I could go on.  However, that is not for now.

But there is also one very, very positive takeaway from this scenario.  Private practice associates get used to promising and meeting tight deadlines, which is an excellent and indeed necessary discipline for any lawyer.

Let’s get back to our recenty escaped outhouser, now installed in the emotionally fulfilling, utopian environment that is the in-house team.  And explore why the deadline discipline they learnt outhouse, whist laudable and still an admirable goal, is not always achievable in-house.  On occasion, it becomes necessary to simply “just say no”.

There are a few types of bucket of work in-house and which I have designated in approximate priority order:

1. Fires.  Can arise at any time, especially on Fridays, and need fighting fast.

2. Business critical or strategically important.  Such as an acquisition, something supporting a key element of the business model, or a risk that has materialized which needs closing down.

3. Other work that has an immoveable deadline for a good business reason.  Such as a response in litigation, the launch date of a new product, or a need to switch key suppliers on a particular date.

4. Work that is urgent simply because it will either make or save the company a reasonable amount of money if done “on time”.  Such as supplier driven quarter-end contract renewals or extensions.

5. Business as usual workflow. 

6. Work that is not urgent to the company as a whole, but the instructing business client thinks it is (perhaps because their personal objectives are measured against them delivering a particular project).

7. Work that is not urgent, and even the instructing business client agrees with that assessment (aka work that will never be done).

A critical skill for the in-houser, and particularly for any GC, is working out which bucket each new instruction falls into and ensuring that the work can be flipped between buckets as circumstances change and time passes.  The GC has to ensure in particular that the business as usual work in bucket number 5 continues to be churned, even when buckets 1 to 4 are pretty full.  The GC needs to have a pretty good idea what buckets each of the in-house team is carrying at any one time and how full they are.  And each member of the in-house team needs to do the same for their own individual workloads.

Most difficult of all, the GC has to decide - brace yourselves - what work may actually take a period of weeks to get to and, on occasion, what work will not be done at all.

This is a controversial and uncomfortable subject for any lawyer or indeed any professional service provider since we are generally a conscientious bunch who realise, in one way or another, that we exist in business to provide a service.  To admit that at times the service is slow or may not be forthcoming is difficult and does not sit easily with our general ethos.

But I take the view that  to ignore the reality that there is more work to do than can reasonably be done, is bad business practice.  I have to recognise this reality in order to prioritise workloads, resource accordingly and to ensure that the businesses’ legal spend on the in-house team is achieving the best possible return on investment for the company.  Whilst the work in the lowest priority buckets could be done quicker if, for example I outsourced it, offshored it or hired another lawyer to do it, the value of that work to the business does not warrant the extra cost – it’s all about return on investment.

The situation is of course different outhouse.  Outhousers do not have the luxury of telling their clients that the work might take a few weeks to be done.  If the client says Wednesday, generally the work will be done by Wednesday.  Hence when outhousers move in-house, it takes them a while to learn how to tackle the in-house prioritising connundrum.

So how does one prioritise work in-house?  I hope the bucket analogy will be helpful, but generally I think there are four major factors that should influence where work sits in the priority queue.  Revenue, Savings, Risk and Strategy.  Will the legal work required result in increased revenue to the company?  Or a significant cost saving?  Does it mitigate an unacceptably high level of risk that has arisen for some reason?  Or will it support a strategic aim of the company?

When I became head of legal at the FT I drew up something rather pompously called the “risk wall” which I intended the team to use as a prioritisation tool.  It never really took off, with either me or them, as it was overly formulaic and ignored the realities of the pace of the business day.   But at its essence was a weighting score for each of the above factors.  For example, if a piece of work would save the company a significant amount of money (e.g. switching from one supplier to another) then it would achieve a high cost saving weighting, and if that supply relationship was also strategic in nature (for example, in our business, an important print-centre), then it would also achieve a high strategy weighting.  Two strong weightings would, my theory went, push that work towards the front of the priority queue and help the in-house team justify what work they were doing in what order.

I’ve long since learned that quickly applying experience negates the need for a formal “risk wall” assessment, but I believe the four factors I’ve identified to be critical in making the prioritisation decision.

Of course, there is a risk of the tail seen to be wagging the dog here and as ever, it is all about communication.  When I’m involved in managing a client’s expectations in this way, I will try to ensure that the internal client is clear as to why I’m making the prioritisation decision I am, and I also make it clear that I will take no offence if they wish to challenge my decision by escalating it within the business to someone at the same or a higher seniority level than me.  As I see it, it is their right to do so and they should feel free to do so, without in some way feeling they have circumvented my decision or offended me.  And I also see it as my job, if I’m asking a member of the in-house team to manage a client’s expectations in this way, to make it clear to my lawyer that I’ll take the flak from any decision on their behalf, since ultimately I am responsible for prioritizing the work that the legal team does.

Limited resource + more work than the resource can cope with = work that cannot be done in a timely fashion.  Whilst deadlines are as important in-house as they are outhouse, to ignore and fail to deal with this reality is a far bigger dereliction of duty for any in-house lawyer, particularly the GC, than to be honest enough to tell a client that, in business terms, their work is low priority and cannot be done within the timescale that they would ideally like.  But remember, whilst it can be okay to “just say no”, managing expectations and communicating effectively is key, as of course is making sure that you have put the work into the right buckets in the first place. 

This post first appeared on Tim Bratton’s blog

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