Pricing legal work is a two-way street

by Ark Group

[author: Timothy B. Corcoran, principal of Corcoran Consulting Group LLC]

The following piece was authored by Timothy B. Corcoran* for the Ark Group publication -  Practical Innovations in Legal Pricing. It examines how a culture of continuous improvement can foster a collaborative approach between the buyers and sellers of legal services.

The legal marketplace has unquestionably shifted, notwithstanding the law firm partners and in-house counsel who lament the good old days. Gone are the days when a general counsel would identify a short list of lawyers from the elite tranche of law firms in a particular market segment, demand a 15 percent discount from the best rates offered to anyone else, and then publish an approved counsel list so anyone in the legal department could assign work to that firm and lawyer without a second thought. At least until a new general counsel arrived, or in five years when good sense dictated that the law department review its approved counsel and rates, whichever came first. The new world means law departments employ procurement and operations analysts to identify quality metrics and then routinely push all legal work through a competitive bidding process to find the most suitable provider. And law firms increasingly employ pricing professionals to adapt the traditional hourly rate pricing to fixed fee and value pricing and contingent arrangements. So why are so many law firms retained on a basis that, call it what you may, essentially boils down to brand strength plus hourly rate discount schedule? No one’s surprised to hear that many law firms continue to lag in adopting these proactive measures. But it shouldn’t come as a surprise to learn that many law department buyers are just as laggard in their behavior. It’s time for both parties to step up their game.

Market disruptions drive change… sometimes

In a market disruption, there are predictable patterns of behaviors exhibited by the incumbent participants. I and many others have written extensively about law firms, playing the role of taxi drivers and licensing commissions, pursuing legal and regulatory assistance to prevent law departments from turning to alternative legal providers, playing the role of Uber and Lyft in our disrupted ecosystem. When the incumbent sellers fail to impede the progress of disruptors, they then take to characterizing the disruptors and their various approaches as harmful to quality, incorrectly conflating the notion of “What I’m comfortable doing” with “What’s good for the buyer.” Finally, the incumbent sellers acquiesce, slowly but surely adapting, in large part by adopting innovations first introduced by the disruptors. Those who don’t adapt eventually and inevitably disappear.

But there’s also a repeatable pattern of buyer behavior. Returning to our ride sharing metaphor, a fast-growing number of former taxi passengers in major cities have used Uber or Lyft, but a far greater number have not yet used a ride sharing service. When new disruptions emerge in a market, a small number of early adopters will quickly embrace these disruptions. However, most buyers will resist, some against all reason, for quite some time until serendipity or “strong encouragement” from internal stakeholders force them from their comfort zone. According to Forbes, in 2016 Uber had 8 million users and operated in well over 300 cities, while Lyft had 0.7 million users in 61 cities. But there are numerous news reports of reluctant buyers eschewing ride sharing services due to, among other reasons, disproportionate concerns about safety. Similarly, there is a large number of law departments, both big and small, and operating in a variety of industries, who resolutely ignore disruptive approaches, choosing instead to select outside counsel in large part on their chosen law firm’s willingness offer fee discounts. However, the market disruptions eventually enter the mainstream, giving air cover to even the most reluctant and change-resistant buyers.

Lower cost inefficiency is still inefficiency

Market disruptors generally drive down prices for services delivered the “old” way. This poses both an opportunity and a challenge for a buyer looking to rein in costs. There’s plenty of opportunity to embrace new ideas and generate greater productivity at a lower cost without compromising quality. However, it’s generally far more comfortable to use this downward price pressure to squeeze existing suppliers into lowering rates, into doing more for less, thereby avoiding significant upheaval in the procurement of critical services while simultaneously reducing expenses.

Consider the law department relying on four primary law firms for critical legal work in the primary jurisdictions in which its business operates. Each of the four law firms has significant experience in the industry and type of matter. However, each relies on the hourly billing model, an approach in which hourly rates must increase every year to reflect the increasing seniority of the lawyers, irrespective of the value of the services to the client. In an efficient market, a longtime supplier will rely on accumulated experience to reduce the cost of goods sold, and share these savings with its clients in order to reduce the likelihood of defection. In the law firm market, however, while lawyers may discover potential efficiencies via this learning curve, they have no economic incentive to charge less, because doing so leads to lower revenues and profits.

Enter the disruptor, who offers alternative approaches to the law department buyer at a lower cost than the current law firms. This quickly ripples through the market, and the value of the services are reset and “anchored” to this new price level. Even if the law department doesn’t end up adopting the disruptive new approach, its representatives are now emboldened to seek discounts from its four current law firm suppliers. They may also seek different law firms offering the same services but at a lower price point. Alternatively, the law department leaders may compare the law firm prices to the cost of internal staff and conclude that it’s more economic to add headcount to the law department, thereby converting the episodic and external law firm cost to a permanent internal carrying cost.

In both scenarios, the law department avoids the costly and distracting burden of adopting disruptive new technology, but may also forgo the offsetting virtue of increased productivity. Simply lowering the cost of acquiring inefficient services, services that over time always increase rather than decrease in cost, is a short-term and lazy solution. In some cases it may make sense to increase internal staff, but the recent trend of significant increases in law department sizes is unsustainable. Few CEOs will agree to permanently divert limited working capital to internal, non-strategic, episodic resources. Even if the current CEO has agreed to this “build vs buy” outcome, the next one is unlikely to.

What we really need is continuous improvement

While one immediate benefit of market disruptions for buyers is increased pricing leverage, this is a red herring. Squeezing law firm suppliers or shifting to lower-cost versions of the incumbent law firms is a temporary and fleeting fix. The real opportunity lies in embracing a continuous improvement mindset and culture. While CEOs and CFOs appreciate their general counsel’s ability to squeeze the supply chain, at a certain point this behavior has the potential to increase the client’s business risk. A healthy ecosystem of buyers and suppliers requires all parties to be going concerns, and squeezing suppliers into submission is a long-term recipe for disaster. Still, the inevitable and inexorable commoditization of legal services, a trend accelerated by, not generated by, disruptive new players and approaches, means that law firm prices must come down. The cornerstone that holds the ecosystem together is continuous improvement – a collaborative and ongoing approach, between both buyers and sellers, to pursue a never-ending quest for reducing costs while improving productivity and throughput. This approach generates far greater cost savings than simply squeezing the supply chain, and it also provides the greatest potential for the law firms to reap significant profits from efficiency. But it requires all parties to be all-in.

Collaborative pricing

In a continuous improvement culture, key personnel from the law department and law firm convene to first identify and then implement efficiencies in all of the areas in which they collaborate. This means breaking down how things are done today, e.g., process mapping, and then pursuing a rigorous DMAIC (Define, Measure, Analyze, Improve, Control) method to establish new ways of operating. From this comes a detailed quality scorecard. By establishing best practices for how critical tasks must be performed, the law department shifts from relying on law firm “brand strength” as a proxy for quality to a more precise and consistent measurement of quality. A key component of process improvement is defining the value for doing something well, so the law department now has guidance to inform its procurement of legal services.

The most impactful driver for law firm pricing isn’t the firm’s cost of doing business. It’s the value the client places on certain tasks or outcomes. Having a clear understanding of the value of these tasks and a quality scorecard for doing these tasks well allows law department buyers to identify, evaluate, and select law firms on a more objective basis. Having a clear understanding of the client’s perceived value of these tasks and the client’s scorecard for measuring quality allows the law firm to embrace fixed or value pricing, and to pursue efficiencies while maintaining, if not significantly growing, profits. Law firm profits in the old days came from doing more for more. Now, law firm profits come from doing something well, doing it with minimal variation, and by using the lowest-costs capable of doing the work so as to never compromise quality. It’s always been true, but in a continuous improvement world it’s clearly more advantageous to profit from experience than to profit from inefficiency.

The law department’s role in law firm pricing, then, is to establish clear values for various tasks, and even better to collaboratively establish best practices for how these tasks should be completed. This is hard work, much harder than simply pitting multiple law firms against each other in a competitive race to the lowest price without regard to how the services are delivered, or without knowing the differential value for doing it well vs. doing it poorly. It requires true collaboration, not the artificial kind found in numerous RFPs, in which in-house counsel and their procurement counterparts pose dozens of questions about the law firm’s capabilities without once describing the business challenge, the desired methodology for tackling the challenge, the perceived value or budget for resolving the issue, and the quality scorecard in place to measure performance.

Getting there from here

Law firm pricing is generally regarded as a one-sided affair, with the client demanding ever-lower rates, and the law firm valiantly trying to protect its revenue streams. In any efficient market, the buyer establishes the price to be paid based on the value delivered, while the seller establishes its profit margin by delivering value at a low cost based on its experience. In the legal marketplace, the buyers have as much responsibility for achieving an efficient outcome as the sellers. Anyone armed with a spreadsheet can pursue formulaic discounts from a pre-defined list of “premier” law firms. Anyone can issue an RFP with the sole purpose of creating a blind auction in which sellers compete for low-cost provider status. It takes a business mind and a business mindset to instill a sense of continuous improvement, both in the law department where the desired outcome is value and quality metrics, and in the law firm where the desired outcome is healthy profits and quality delivery. It takes a collaborative approach for both to occur simultaneously. Done poorly, law departments risk hiring the wrong firms for the wrong tasks. Done well, law departments have every opportunity to shift from a corporate cost center to a department focused on business velocity. The latter is an investment that adds to the top and bottom line. The former is always a cost that dilutes the bottom line.

Next steps for law departments

  • Establish a continuous improvement mindset and culture. Draw on corporate process improvement and change management resources, or bring in external advisers to help you design and kick start a program.
  • Focus your efforts away from finding less expensive ways to do things poorly and inefficiently and toward the DMAIC approach to establishing best practices and quality scorecards. Do this collaboratively with your trusted law firms.
  • Once quality metrics are established, unlock the value of the growing legal operations role by creating frameworks for making informed build (hire in-house staff) vs. buy (outsource to law firms or alternative providers) decisions.
  • For outsourced work, use the quality metrics to establish frameworks for identifying, evaluating, and selecting the appropriate law firms based on demonstrated expertise, and for measuring and sharing law firm performance on an ongoing basis. Eliminate RFPs that focus solely on cost, unless quality is inconsequential. Eliminate shadow billing and other superfluous metrics that provide no insight into quality.

Next steps for law firms

  • Establish a continuous improvement mindset and culture. Don’t dabble in project management, process improvement, and alternative pricing by treating them as necessary evils to be quarantined. Go all in to establish an economic model that generates profits from experience, differentiates the firm by proving expertise rather than relying solely on brand strength or other proxies, and creates greater client loyalty.
  • If you don’t have them already, hire a pricing professional and a project management/process improvement executive. These roles and duties are interchangeable at about the same rate as litigators and transactional lawyers. Hire specialized expertise and then let them lead the charge.
  • Proactively pursue collaborative DMAIC projects with key clients. Don’t wait to be called. Assume that all practices and all clients are at risk, even if there are no warning signs (there are, you’ve just missed them).
  • Convene the leadership team and develop a multi-year, multi- faceted investment plan to address, in a coordinated manner, the inter-related aspects of service delivery, pricing, compensation, metrics, management training, recruiting, succession planning, client feedback, and practice strategy. You won’t be able to tackle all at once. But if you fail to have a coordinated plan to tackle it all eventually, your efforts will be slowed, and your results will be diluted.

In any market, effectively pricing any goods or services requires an understanding of the buyer’s perceived value. When the buyer has no idea of the perceived value of a given task, and no idea of how to measure the quality of service delivery, then the buyer and seller end up in an unproductive dance in which low price providers, irrespective of quality or expertise, emerge victorious. An informed buyer knows what’s needed, knows how it could and should be delivered, and knows the intrinsic value to the business. But that’s not enough. That information must be conveyed to the potential sellers, and the sellers best able to meet the quality standards at the desired price win. A buyer seeking simply to squeeze the supply chain will generate cost savings results for a while, but will have no answer when the CEO and CFO ask for evidence of a continuous improvement culture that adds business velocity rather than a lower cost way of perpetuating in efficiency. A seller who knowingly maintains higher-than market prices with poorly-informed buyers rather than proactively collaborating for mutual success will inevitably lose the business. A seller who does this unknowingly has already lost business, but likely doesn’t know that either.

The optimal way forward for both law firms and law departments is to collaborate in the development of a continuous improvement mindset and culture. Not sure what you’ve heard, but the new normal means simultaneously improving profits, quality, and client satisfaction. What are you waiting for?

*Timothy B. Corcoran will be presenting on The Bridge Between Process Improvement (PI) and Project Management (PM) & Opportunities for Transformation and Innovation at Ark Groups Successful Collaboration Between Law Firms and Legal Departments: The Real Next Frontier! – taking place December 5th in Chicago

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