Over the past six months, an incessant stream of worries has troubled the minds of in-house counsels across the world. As they dealt with the effects of the pandemic on their businesses, they faced a level of uncertainty that some of them had never experienced at any point in their careers.
One morning in September, these unspoken feelings were laid bare for a small group of people, in the form of colourful post-its dotting an interactive whiteboard.
They were written by a group of five GCs across different industry sectors, who gathered as part of an online event hosted by The Lawyer in association with DLA Piper. The firm’s ‘change maker’ Jana Blount and legal director Ilan Sherr guided the attendees through a design thinking session aimed at analysing their experiences of this period and discussing solutions to make their lives easier.
The event built on their experience of establishing a design thinking methodology at DLA Piper that is being taught to all kinds of professionals across the firm. The concept behind the initiative is approaching client problems in broader ways than traditional advice, striving to get to the root of a problem by way of lengthy discussions with clients and brainstorming efforts around past and present issues.
With the same intentions, Blount and Sherr wanted to understand what were these GCs’ main concerns, how they evolved during lockdown and what the firm can do to solve them. The session was fittingly called “Nightmares on Law Street.”
“We want to ensure that what we create will make your life better,” Blount said. What worries you and what’s keeping you up at night?, the two lawyers asked.
They invited the five participants to write these “things of nightmares” on digital post-its arranged on an interactive platform, Sprintbase, that is used by DLA for design sessions.
The GCs started writing.
“There are so many questions we need to ask”
Some of the post-its laid out concerns about the pressures of helping the business amid the international pandemic crisis: the disruption to global supply chains; the need to support customers remotely; media stories of other business failures; missing deadlines; how to manage business-as-usual risks when the focus is on strategy.
The first to speak up was a senior director for legal of a medical device company operating across a complex distribution chain. During the pandemic, her company’s global supplies encountered local constraints across several countries. “Dealing with medical devices, we needed to choose how to supply based on different jurisdictions’ rules, which raised both compliance and ethical issues,” she said. “Some countries started restricting supplying and manufacturing.”
The GC of a Silicon Valley tech startup, too, found himself having to adjust to a plethora of markets that could shut down at a moment’s notice, or with different health and safety rules to contain the health crisis. “As a listed company, we try to look at things globally, but we have seen countries where regulations change quickly and are not brilliantly thought through. How do we make risk decisions in that context?,” he wondered.
When issues arise, they wanted to make sure the company was ready to handle them. But it is not easy when in-house lawyers are subject to upheaval not only in relation to customers, but also in their own business. Forced to rationalise teams due to budget pressures, senior counsels are confronted with tough choices, from layoffs to wider cuts. A lot of post-its on the dashboard were about the difficulties of managing uncertainty: “Problems lurking in the business I don’t know about yet,” one read. Or simply: “The next 12 months.”
The GC of a lending company illustrated her struggle in setting out a strategy not just for the future, but even for the short term. “There are so many questions we need to ask,” she said. “Is the government stimulus programme continuing? Will another national lockdown impact on investors? It is so difficult.”
While focusing on broad strategies and cost-cutting exercises, these lawyers still need to oversee the day-to-day functioning of their legal teams. The GC for corporate matters of a telecoms company said: “We needed to pivot to the new situation, but also equally managing business as usual.” With the pressure to do more with less, his legal function had to adapt and work differently, meaning that he couldn’t take care of everything. “Some areas of the business are left without the attention I would like to give them,” the GC added.
The remote working regime prompted by the pandemic adds to the uneasiness experienced by the leaders of these functions. Snowed under management requests, the attendees expressed concerns about how effectively they can take care of their own teams. A number of post-its popped on the table that included fears such as “keeping the team energised”; “lack of focus on controls in remote environment”; How to encourage back to the office those who want to work from home permanently”; “Motivation of team now crisis is over — avoiding burnout.”
While working from home, the children of one participant were handling the new reality of remote learning; one was busy with A-levels, the other with GSCEs. Seeing their resilience as they lived their lives indoors without being able to interact with their peers taught her about resilience and made her think differently about what her own team needed. “It is important how we look after ourselves and find ways to be able to focus. We talk about work-life balance but for me it’s just life. They are two aspects that need to be ok for the other to function,” she said.
This problem resonated with the other participants. One GC noted the lines between work and life has never been more blurred; this means they need to spend more time ensuring team members are cohesive and happy. “Downtime for leaders has been hugely impacted,” the legal chief of the Silicon Valley tech company said. “We have to spend a lot more time investing on people and in tactics to make the work a good and sustainable place.” He offered the example of international team members who found themselves living in countries far away from their families.
The GC of the lending company chipped in, saying that her lawyers reacted well through the early phases of the pandemic, managing relationships with borrowers and carrying out in a matter of weeks transactions that would normally take a month to complete. “We were in crisis mode and lawyers work well through these phases,” she said. But in the Zoom-centred, protracted home working lifestyle, the risk of burnout is behind the corner.
While leaders struggle to know what is really going on with their underlings, the whole function is even less visible to the wider business. The GC at an energy provider was anxious about what she’s missing. Her company is undergoing a massive strategic infrastructure project and she can’t visit the site due to operational restrictions, let alone meet the other 300 professionals involved. “It is difficult to get a handle on what is going on and do key contract work because we can’t talk to the people who matter.” Similarly, her team is not visible to the business, with everyone sitting at home. “Does the business think we are not adding value at the moment?,” she wondered.
At that point, DLA’s Blount stepped in and, almost as a therapist, she added: “You are stressed and concerned. How can we do something about this? What could help people sleep at night?” The firm’s legal director Ilan Sherr said some of the unknowns and risks faced by in-house lawyers, for example, could be alleviated by the use of technology. “We can use artificial intelligece in useful ways and spot problems to enable teams to deal with them without impacting on resources or on the ability to focus,” he explained.
Artificial intelligence, Sherr explained, can process data much better than humans. A special mechanism called “sentiment analysis” can work out the mood behind someone’s writing, and the AI can spot things out of the ordinary. It can also be used to track people’s communications to make it easier for the legal departments to monitor if employees are being compliant with company policies or regulatory obligations.
The GC of the medical devices company, who runs an internal compliance programme, agreed that these concerns were getting more pressing. She needed to invest in data analytics and statistics to mine information and track behaviour. But she challenged the notion that AI could pick up the sense of a mood better than humans.
So what to use it for?, the DLA duo asked. Among the suggestions were using it to spot trends within a business— data that could be used to see what works and what doesn’t across jurisdictions and local cultures. This could help companies refine strategies when it comes to issues such as compliance in remote correspondence. But they had to steer clear of capturing behavioural, emotional or individual traits.
One GC noted that, with the risk of data breaches and lack of oversight on employee behaviour becoming a constant threat, this type of tech could augment investigations that the legal teams are required to carry out when analysing allegations of wrongdoing. However, using this machine to monitor the workforce as a surveillance tool is unlikely to go down well. “The risk of excessive reliance on tech is that it removes trust in the organisation,” the GC said.
A way for legal functions to preserve trust might be finding a way to sell these technologies well to employees. The GC of the energy provider shared her company’s experience of installing cameras in drivers’ trucks for health and safety reasons. Dashcam footage allowed management to know how they drove and assess where the fault lied in case of accidents. “Some drivers might have seen it as an invasion of privacy at first, but it in the end it served a purpose.”
Artificial intelligence technologies and analytics, the GCs concluded, can be helpful in allowing teams to operate safely remotely and to gather insights on how members of the company are operating. But their use needs a clear justification and agreed parameters. “If you have the right guard rails that don’t undermine the trust, then that’s useful,” one summed up.
This conclusion, Blount said, is the place that a design thinking session aims to get to. It is also the starting point to come up with effective solutions. “This technique gets you out of your normal world and helps you think of what might be possible.”
The following step is taking the results of the collective reflection and turning them into “dreams”. If everything in the design of the solution went well, if you could have your dream come true, what would it look like? Blount invited GCs to take time to draft a press release outlining the solution in detail. Which publications would you be talking to about the idea? What would the headline be? The release would outline the solution in detail, alongside the benefits it brings and how it can be accessed.
“These techniques can really enable us to stretch our thinking,” Blount concluded. “We allow ourselves to be more creative and come up with novel solutions that we would never have thought of.”