Productive relationships between corporate and outside counsel are essential to efficient management of corporate legal matters. Effective communication is even more important when working with cross-cultural issues and language barriers. While every matter and relationship is different, the strategies articulated below are applicable to any culture and every type of matter, from bet-the-company litigation to small stakes transactional work and can be used to define and create an environment for mutual success. Counsel, both corporate and outside, should take care to identify cultural differences and to highlight cultural likenesses in order to best communicate with one another.
1. Set Up Effective Communication at the Beginning of the Relationship
Effective communication between corporate and outside counsel is essential to the creation of the level of trust and confidence needed to achieve the parties’ mutual goals in managing legal matters. In order to achieve clear and strong communications, at the outset of a legal matter or a legal relationship, both corporate and outside counsel should discuss their needs and expectations for the matter and from each other and how they want to communicate. These needs and expectations are often influenced by each party’s cultural experience. Counsel should attempt to identify and recognize inherent differences in communications, whether they are based on personal preference or driven by foreign practice. For some counsel, email communications are preferred to manage a busy practice, but for others, a phone call is better to differentiate communication from the inboxes of correspondence. Whatever the type of communication, counsel should take care that it is tailored to the matter and the individual participants. One of the first topics of communication should be the creation of strategy for the matter. Outside counsel is often responsible for providing a proposed and defined strategy for the matter—with the assistance and approval of corporate counsel—and should give corporate counsel updates as that plan necessarily changes with time. It is important for corporate counsel to participate in the creation of the strategy, as these early decisions will be guiding the counsels’ actions and costs for the duration of the matter.
2. Discuss Cost and Budgeting Issues
The cost and budgetary realities of the matter must be addressed up front and revisited at each stage of the engagement. An open line of communication between both corporate and outside counsel should be established to discuss budgetary constraints and expectations. Both counsel should look not only at the cost of the individual matter but, to the extent possible, the big picture budget realities the corporate counsel may be facing. Outside counsel should strive to ensure that corporate counsel understands the U.S. legal system and the various potential outcomes of litigation, emphasizing its lengthy and sometimes unpredictable nature. Some corporations make quarterly or annual legal budgets and these budgets can affect the decision-making process in individual legal matters. Outside counsel’s responsibility includes providing corporate counsel with as detailed a budget as feasible and providing estimates of tasks and timing, while also factoring in the level of uncertainty inherent in any legal matter, perhaps by giving a budget range. Alternative fee arrangements and other ways to work around budget realities should also be explored.
3. Plan for Deadlines and Scheduling
Ideas of appropriate turn-around and lead-time can vary greatly from lawyer to lawyer, as well as by company, corporate and foreign culture and matter. For the creation of a smooth relationship, it is important for corporate and outside counsel to communicate about timing expectations. Outside counsel should focus on providing work product with enough time to allow corporate counsel to review in a meaningful manner. Likewise, corporate counsel can address these issues by taking special care to give a problem or task to outside counsel as soon as possible in order to give sufficient time to completely address the matter.
4. Understand and Manage Expectations
One key to a successful relationship between corporate and outside counsel is understanding and managing expectations. This is crucial as foreign norms and standards often dictate what outcome is expected. Outside counsel working with foreign corporate counsel should not assume that expectations are aligned. Outside counsel should quickly seek and discover what the corporation’s real goal is in the matter—what the company would deem a “win” in the given situation. This goal may also change over time based on newly discovered facts, budget concerns or business practices and objectives. Likewise, what may be an acceptable outcome in one matter, may not be in another; and outside counsel is well-advised to check with the corporate client to confirm the understanding of the present objective in each particular matter.
5. Updating Expectations and Goals
Outside counsel should provide updates at each phase or significant event during the engagement. This is especially important to corporate counsel who may not deal with the U.S. legal system on a regular basis. This will help all parties monitor the legal budget and eliminate unnecessary surprises. This procedure also allows corporate counsel to achieve a high level of control over the matter, as well as allow it to communicate that control to internal management. Additionally, conducting an analysis at the end of a matter can be crucial to cementing a successful partnership between corporate and outside counsel. This review should examine what went well and what needed improvement during the matter. By better understanding the strengths and weaknesses, both corporate and outside counsel can implement new approaches and improve the relationship.