By Gary Richards Whenever you manage a legal team – whether it includes partners, associates, paralegals, or others – you may occasionally need to provide feedback on team members’ work. Getting work done successfully by others is a key skill...

LegalBizDev

The latest post from Jim Hassett’s blog Legal Business Development.


How to improve feedback to legal team members (Part 1 of 2)

By Gary Richards


Whenever you manage a legal team – whether it includes partners, associates, paralegals, or others – you may occasionally need to provide feedback on team members’ work. Getting work done successfully by others is a key skill needed for the work to be done completed properly, on time and within budget.

Inevitably, there will be times when competent and dependable team members will not meet your expectations, overlook an issue, or miss a deadline. The best way to respond to this is to provide corrective feedback: information about how behavior is perceived by, and is affecting, others. It is meant to lead to positive change. With it, you call their attention to what you expected versus what they delivered, and ask them to fix it now and improve next time. That way they learn, and you have helped them improve.

But, being human, it may be tempting for you to avoid the potential tension or conflict possible when you point out how another person can improve. You don’t want to seem picky or risk demoralizing another team member, and in some cases your current relationships with the other team members could be a complicating factor, particularly if they are senior to you. And no matter how sincere your intent is to help, it's easy for the recipient to feel personally attacked. This is compounded when you have some power over the recipient. Be sure to convey the message that you appreciate the good work they usually do, and approve of their basic attitude and skills.

When you see a need to correct someone, it is tempting either to:

  • Avoid the confrontation. Instead of saying anything directly to them, it may seem ‘easier’ to:
    • fix it yourself,
    • avoid assigning them to the next case, or
    • try to raise the issue with the full team so as not to seem to be ‘pointing fingers’

--OR--

  • Confront them immediately. After all, they should know better already, and there are quality standards to uphold. If they can’t stand the heat, they should get out of the kitchen!

Neither of those approaches is as effective as giving skillful corrective feedback so that they improve results next time and remain motivated, by following these guidelines:

  1. Understand the purpose of feedback: to provide guidance by supplying information in a useful manner, either to: 
    1. Support effective behavior by indicating when things are going in the right direction (praise or acknowledgement)
    2. Correct problem behavior/performance (corrective feedback) to get the recipient back on track toward successful performance
  1. Your corrective feedback will be more effective if you have also in the past given praise and acknowledgement of the recipient’s successes/good work. That way, the recipient trusts the fact that you have noticed their successes as well as their performance gaps.
  1. Own the problem, as in “I need your help…” not as in “You have a problem.They don’t have a problem--they thought it was a good job! Your problem is that your expectations weren’t met. Accordingly, you need their help.
  1. Use a face-to-face conversation to give the feedback, instead of phone or email. Being able to see each other’s body language and facial expressions facilitates understanding, and makes the encounter more personal. When giving one-on-one feedback you must be aware of the possible and actual reactions of the recipient, and to be careful with the setting and your phrasing in order to have it accepted and acted on.
  1. Give the feedback one-to-one in private, not in public or during a team meeting. With third parties involved, mixed messages and a lack of accountability are likely results. Instead, a private conversation protects the recipient from losing face with others present. Conversing in private avoids the recipient feeling “punished in front of others.”

    Keep in mind that corrective feedback given by email is equivalent to ‘public’ criticism since it can be ‘copied/passed around’ to third parties. Email is also generally much less useful than face-to-face feedback, because it lacks the immediacy of being presented directly by the provider, with the opportunity to explain or enlarge on it so that it's clearly understood. Impersonal feedback like email also generally feels much more like a personal attack, and is therefore less likely to be effective.

Additional guidelines will appear in Part 2 of this series.

This information is being adapted for our online LPM tools and templates.

      


The Top Three Facts Law Firm Leaders Need to Know About LPM

By Jim Hassett and Tim Batdorf

Law firm leaders who are interested in legal project management (LPM) should begin by focusing on these three central facts:

1. Clients want LPM

Any law firm that has responded to an RFP in the last few years knows that client requests for LPM are growing rapidly.

Survey after survey has shown that legal clients are seeking greater efficiency from firms.  For example, in its 2017 Chief Legal Officers (CLO) Survey (p. 37) , Altman Weil provided 280 CLOs with a list of ten possible service improvements, and asked “please select … [the improvements] that you would most like to see from your outside counsel.”  The top three things clients want were all closely related to LPM:

  1. Greater cost reduction (51%)
  2. Improved budget forecasting (46%)
  3. Non-hourly based pricing structures (39%)

Even when clients fail to ask for LPM by name, the results that clients are looking for definitely fall under the term, including minimizing surprises and improving communication.

If you believe that your clients are different and that they care only about legal quality and not about cost, consider yourself very lucky. But you’d better be right, because you may be at risk of losing these clients to competitors who focus on improving service with LPM.

2. Experts disagree about the best way to implement or even define LPM

There is widespread agreement that clients want LPM and that it can pay off for firms by protecting business and increasing realization and profitability. But the field is so new that experts still disagree about exactly how it should be defined. These arguments have slowed LPM’s progress, as seen in this quote from an AmLaw 200 firm leader from one recent survey:

We were just at a board meeting last week where we were talking about whether we should do formalized project management training. My answer to that is obviously yes, we absolutely should. But first we need to agree on what legal project management is. (p. 89)

Here is the definition we’ve used for years:  LPM increases client satisfaction and firm profitability by applying proven techniques to improve the management of legal matters.  Note that this is a broad definition that embraces a very wide range of management techniques, including pricing, communication, process improvement, and much more.  

By our definition, any lawyer who has ever planned a budget or managed a team has served as a legal project manager. But what was “good project management” for lawyers a few years ago is no longer good enough. Clients are now choosing law firms based on their ability to apply a more systematic and disciplined approach that delivers more value more quickly.

We argue that LPM revolves around improvements in eight key areas:

  1. Set objectives and define scope
  2. Identify and schedule activities
  3. Assign tasks and manage the team
  4. Plan and manage the budget
  5. Assess risks to the budget and schedule
  6. Manage quality
  7. Manage client communication and expectations
  8. Negotiate changes of scope

The key to success is to find the “low-hanging fruit”: The management tactics that are most likely to help each individual to increase value and/or profitability.

As Barbara Boake and Rick Kathuria summed it up in their book Project Management for Lawyers (p. 14): “project management is a tool box—choose only what you need to most effectively manage [each] project.”  

This pragmatic approach is closely related to the Agile approach to project management, an iterative process that focuses on key issues, one at a time, in their order of importance.In an article entitled “Agile: A Non-traditional Approach to Legal Project Management,” Kim Craig, then SeyfarthLean’s  global director of legal process improvement, and Jenny Lee, a senior project manager with Seyfarth, explained why Agile is particularly relevant to the legal profession

Traditional project management focuses on robust, comprehensive, mandatory project documentation with lengthy project charters, detailed project plans, complex status reports and rigorous, formal change control logs… [But] the world of legal service delivery is fast-paced and unpredictable. In legal matters, we cannot possibly know everything that will be involved with litigation at the outset. Developing an overall strategy is generally common practice, but detailed, cradle-to-grave planning is impossible.

Agile contrasts with the more traditional approach to project management which holds that every project should start with a well-defined plan.  Only after that is complete and approved do you begin working your way to the end, one sequential step at a time.

The traditional approach is also known as the “waterfall” approach because progress is seen as flowing steadily from the top to the bottom (as in a waterfall).  It typically sees projects in terms of five key phases or steps such as:

  • Analysis
  • Design
  • Implementation
  • Testing
  • Evaluation

In some cases, firms have hired LPM Directors based on their “waterfall” project management experience in construction, government contracting, and other areas where traditional techniques are used, and Agile techniques are not.  This has led to many stories of LPM Directors who could not or would not adapt to a legal environment, and who ended up working with the very small group of partners that were interested in project charters, Gantt charts, and tools like Microsoft Project software.

So, if anyone tells you that LPM is defined by five steps such as analysis, design, implementation, testing and evaluation, you should be aware that they are describing the traditional waterfall approach, not the Agile approach which we believe applies better to lawyers. As the old cliché says, you won’t get a second chance to make a first impression, and attempts to apply the traditional waterfall approach have set back the cause of LPM at many firms.

Another challenge in implementation caused by the controversy over definitions can be seen in the relative resources firms have devoted to two key questions addressed by LPM:

  1. Pricing: How do I bid high enough to make an acceptable profit, but low enough to get new work?
  2. Managing: After I set a price how do I manage the work to assure client satisfaction and a reasonable profit?

In a study based on interviews with 15 LPM directors we found that almost all of firms’ emphasis has been placed on the first question – pricing – rather than the second – management (p. 292).  We believe this is a mistake.  As we wrote in that study:

In this era of dog-eat-dog competition, firms sometimes have little control over pricing. But once the price is set they CAN control how the work is done. So why do so many firms concentrate on pricing before internal management… [Frankly], it’s a whole lot easier to get lawyers to agree to a budget than it is to get them to live within it… LPM directors need to help lawyers change their behavior, which is a [much more difficult] challenge. (p. 298)

Interestingly, since completing that study we have talked to clients who have performed their own internal proprietary “gap analyses” to determine how to improve LPM, and reached this same conclusion:  they need more emphasis on changing lawyers’ behavior.  Of course, the financial side of setting budgets is important. But if lawyers did a better job of living within those budgets, and communicating with clients, the impact on the bottom line would be faster and more significant.

3. LPM is hard. Success requires long-term management support

In our LPM work with hundreds of law firms, we’ve seen the importance of follow-up over and over again.  In every single case where we have seen a firm make significant LPM progress, it was led by influential partners or members of the executive committee who were strong believers.  In fact, in a few cases, we’ve seen LPM programs make an enormous amount of progress when they were led by a powerful internal champion, and then slow to a crawl when that decision-maker left the firm.

In our view, no law firm on the planet has achieved more LPM behavior change more quickly or more efficiently than Bilzin Sumberg, a Miami firm with about 100 lawyers.

Bilzin started several years ago with individual coaching for key partners aimed at creating quick wins.  Based on their success increasing client satisfaction and new business, these partners became LPM champions who spread best practices throughout the firm.  Practice group leaders are now required to report regularly to an LPM committee and to the managing partner about how they are applying LPM and what works best.

Many firms have individual lawyers or practice groups that are quite advanced in LPM, but in our opinion not a single law firm in the world can yet say that LPM has truly taken hold across the entire firm. LPM aims to change habits that have been reinforced over decades, and to help firms constantly adjust to evolving client demands.

As Bilzin Sumberg Executive Director Michelle Weber summed it up, “Applying LPM is a continual ongoing process.  It’s all about modifying behavior one small step at a time.”  

For a pdf of this post, plus additional related information, download our white paper The Keys to LPM success

      


Litigation AFAs (Part 3 of 3) 

By Greg Lantier, Natalie Hanlon Leh, and Mindy Sooter, WilmerHale

 

Five Questions Outside Lawyers Should Ask Themselves Before Submitting an AFA

In this third article in the series about AFAs, we discuss five questions that outside lawyers should be able to answer for themselves before submitting an AFA proposal for a litigation matter to a client.

  1. Why Am I Proposing an AFA for This Litigation Matter?

First, outside counsel should ask herself why she is proposing an AFA for this matter.  To be sure, AFAs are often beneficial—providing clients with predictability in litigation costs and simplifying the billing for outside counsel—but they are not without risk.  For example, if assumptions underlying the AFA were not accurate, or if these assumptions change over time, the original AFA proposal may likewise be off base.

Thus, outside counsel should be able to articulate the reason for proposing an AFA as a pricing alternative.  One common reason is client preference.  Some clients, including many public companies, value stability and predictability in litigation costs, and seek to avoid unexpectedly high monthly bills.  Other clients may prefer AFAs with success premiums to ensure that outside counsel has “skin in the game.”  But if the client has not requested an AFA, this might not be a good case to propose one.  Indeed, some clients prefer hourly-based billing.  And some cases may be unusual or unpredictable enough to make an AFA inappropriate.

In short, outside counsel should discuss the AFA approach with the client, understand the client’s preferences and concerns, and structure the proposal to address those needs.  While some clients are eager for AFA proposals, not all cases and clients are good fits for AFAs.  If the client has not requested an AFA or the case is unusually difficult to budget with accuracy, this might not be the case to propose an AFA. 

  1. How Long Do I Expect This Matter to Last?

Second, outside counsel should ask herself how long she expects this matter to last.  Outside counsel often has a sense of when or if a case might settle, depending, for example, on the litigation history of the opposing party and its counsel, and on the client’s historic preference for settlement versus trial.

Cases that are expected to settle almost immediately would probably not warrant an AFA.  Cases expected to last longer, but to settle before trial, could be good candidates for AFAs.  In those cases, AFAs provide predictability to clients without significant risk of diverging from the original budget estimate.  Likewise, AFAs in cases likely to proceed to trial are often beneficial to the client, providing the desired predictability and stability of fees throughout the case.  Those cases, however, present greater risk to outside counsel because over time, the budget assumptions underlying an AFA—formulated before litigation began—are more likely to prove inaccurate. 

For all AFA cases, and especially cases expected to “go the distance” to trial, outside counsel and her client should discuss and document the original budget assumptions as well as the circumstances under which the AFA may be modified if the litigation diverges from those original assumptions.  This will ensure that the AFA remains realistic and beneficial not only to the client but also to outside counsel.

  1. Would This AFA Be an Appropriate Template for This Client?

Next, outside counsel should ask herself whether this proposal is a sustainable model for future matters with this client. Often AFAs are presented in response to requests for proposals.  These are competitive bids, and, especially if this is an opportunity to work with a client for the first time, outside counsel might be tempted to present a low offer to beat out the competition.

If outside counsel hopes to build a lasting relationship with this client, however, it is important that the proposed AFA reflect a realistic case budget.  Certainly, the AFA should reflect any discount the firm is willing to offer to obtain this matter, but it should not be unsustainably low.  This proposal is likely to become a standard to which future proposals are compared.  If the original AFA is unsustainably low, the client will be shocked when the firm presents a more realistic budget next time. 

Thus, instead of presenting an unrealistically low proposal, outside counsel should talk through the AFA with the client to ensure that they are both working under similar budget and case assumptions.  That common understanding, leading to a realistic AFA, will build trust needed for future engagements, and be more likely to lead to a long-term relationship.

  1. Am I Confident the Client Will Make Adjustments if Circumstances Change?

Outside counsel should also ask herself how confident she is that the client will be reasonable in making adjustments to the AFA necessitated by changes in litigation circumstances.  Unfortunately, litigation is not always predictable.  A plaintiff may add claims or parties, and new issues may arise.  If these circumstances were not accounted for in the original case budget, it may be necessary to alter the AFA.  And if outside counsel is not confident that the client will cooperate in reasonably modifying the AFA, then an AFA may not be appropriate in this case. 

To determine a client’s willingness to reconsider an outdated AFA, outside counsel should have a frank discussion with the client before litigation begins about the circumstances under which the AFA may be modified.  Certainly, the outside firm should bear responsibility for meeting the original budget under the original assumptions.  But if those assumptions change, for example if the plaintiff adds new claims, there should be a mechanism by which the client and outside counsel negotiate a modified AFA.  If the client is not willing to include any such mechanism, or if outside counsel senses that the client will be unreasonably inflexible, an AFA pricing structure might not be the best approach.

  1. How Will I Train the Team to Work Within the Budget?

Finally, outside counsel should ask herself whether she has a plan for building a team that will work within the budget.  A good AFA is typically derived from an estimated case budget, calculated from the estimated number of hours to perform each litigation task. 

To ensure success of the AFA, therefore, outside counsel should have a plan for building a team that can work within the budget.  The plan should include training the team members about the budgets for each task, providing the team with tools for tracking their actual time spent and comparing it to the time allotted, and providing additional resources or skills to team members that have difficulty staying within budget.  Counsel must also ensure there are tools to track the overall team’s progress as compared to the budget.  These tools require mechanisms to track and report the hours expended versus hours budgeted. 

Without a plan for building a team that can work within the budget and for tracking that progress, an AFA becomes difficult to manage and the risk of departing from the AFA increases significantly.  Putting the necessary tools in place and training the team on the budget are essential prerequisites to entering into an AFA.

The authors are partners in WilmerHale’s Litigation/Controversy Department and IP Litigation Practice. This is Part 3 in a series of three related articles that have been adapted from Law 360 for the fifth edition of the Legal Project Management Quick Reference Guide.  The Guide also includes three additional articles on this topic by the same authors.

 

      


Litigation AFAs (Part 2 of 3) 

By Greg Lantier, Natalie Hanlon Leh, and Mindy Sooter, WilmerHale

 

Five Questions Every Client Should Ask Before Accepting an AFA

In-house attorneys routinely receive, review and compare Alternative Fee Arrangement (AFA) proposals and nearly all law firms regularly submit them, but the parties often do not follow a disciplined approach in developing a realistic budget. In this series of articles, we provide guidance to ensure that AFA proposals are meaningful and realistic to both the client and outside counsel. In this article, we discuss five questions that every client should ask the law firm before accepting an AFA proposal for a litigation matter.

  1. How Did Outside Counsel Generate the Numbers?

    First, a client should ask how outside counsel came up with their numbers. Law firms, and partners within those firms, have differing techniques for generating AFA proposals, and some techniques are more precise than others. To ensure that an AFA is realistic and reasonable, in-house attorneys should ask outside counsel for an explanation as to how the firm arrived at the specific proposal.

    An AFA proposal generated from a detailed budget forecast specifically tailored to the case at hand is likely to be the most realistic. Such a budget forecast uses expected tasks, staffing and hourly estimates to calculate the estimated litigation fees. Then, once the case budget is known, it can be converted to a case-specific AFA. In a simple example, a projected case budget can be converted to a monthly fixed fee by dividing the total estimated fees and costs into equal monthly payments over the expected duration of the case. In a more complex example, the budgeted fees can be used to generate various fixed fees for each phase of a case.

    Another advantage of using a budget based on tasks and hours is that the hourly estimates can then be compared to the actual time taken to perform various litigation tasks.  Thus, generating the AFA based on a detailed budget allows outside counsel to know where the firm really stands as compared to what was budgeted in calculating the AFA.

    However the AFA has been generated, outside counsel should be able to explain the basis for the proposal. If outside counsel cannot show his or her work, then the AFA probably has not been well thought through.

  2. What Assumptions Are Built Into the AFA?

    AFA proposals may vary significantly, even for the same case, leaving a client to wonder how different firms arrived at their numbers.  The answer may lie, in part, in the assumptions underpinning each firm’s proposal.  To gain valuable insight, clients should ask the bidding firms to provide detailed explanations of the assumptions (in addition to any supplied by the client itself) underlying the AFAs.

    The assumptions underlying an AFA go well beyond the fundamental assumptions as to the risk exposure of a case, which always factor into litigation strategy.  Instead, the assumptions driving an AFA are much more detailed, including things such as:

    • Will there be an early round of dispositive motions?
    • How many party and third-party depositions are included in the AFA?
    • How many expert reports and expert depositions are included?
    • Will discovery be contentious, necessitating multiple discovery disputes and motions?
    • Are document collection, first-level review, and production included, or will the client handle those separately?
    • Is there a joint-defense group to share some expenses, and will the client want its outside counsel to take a leadership role?

    Understanding assumptions such as these made by the bidding firms will help a client compare and evaluate competing AFAs.  And as the case unfolds, understanding the assumptions built into a selected proposal will benefit both the outside counsel and the client in measuring the success of the AFA.

  3. How Does This AFA Incorporate Lessons Learned?

    Outside counsel experienced with AFAs will have many war stories regarding successful—and less successful—fee arrangements.  Asking outside counsel to share these experiences can provide useful insight into the strength of a proposed AFA. 

    When asked this question, outside counsel who have provided a well-considered proposal should be able to articulate the characteristics of successful AFAs, and how the proposal includes those features of success.  Whether those features include regular budget reports, frequent status meetings, careful tracking of the case against original assumptions, or some other set of characteristics, the AFA should be structured for success.

    Likewise, outside counsel should be prepared to explain how the AFA has been designed to avoid the pitfalls of less successful AFAs.  For example, if AFAs with ambiguous assumptions, ineffective budget tracking, inability to adapt to changing circumstances, or other issues have been less successful in the past, the AFA should be designed to avoid these weaknesses.

    Asking outside counsel to explain the strengths and weaknesses of AFAs generally, and then to compare the proposed AFA to these traits, can be an enlightening and educational exercise that leads to a stronger AFA overall.

  4. Who Is on the Team and What Are Their Existing Commitments?

    The makeup of the litigation team can dramatically affect not only the cost, but also the outcome, of a case.  Therefore, it is important that an AFA be tailored to a team that meets the client’s strategic needs.  For example, a large, experienced trial team may be essential in a high-stakes competitor case.  In contrast, if a nuisance-value case is likely to settle before trial, bringing on an experienced trial team early in the proceedings could be an unnecessary expense.

    For these reasons, when a client is evaluating AFA proposals, it is essential to understand what the proposed litigation team from each firm will look like—both in the near term and at trial.  A client should ensure that the AFA includes team members who are properly qualified for the case, and that the size and experience of the team at various phases is appropriate for the litigation risk. 

    A client should also ask about the ratio of associates to partners that the AFA assumes.  A low budget might reflect high associate-to-partner leverage, which in turn, reflects an assumption that junior team members can run large portions of the case, including depositions and brief writing.  In contrast, a higher AFA budget may assume that partners will be heavily involved in most aspects of the case.  Different cases—and sometimes different phases within a case—will require different staffing. 

    Importantly, when discussing all of these topics, the client should ask what would happen to the AFA if the team structure or members changes over time. 

    The makeup of the litigation team is essential to the success of a case, whether success is measured by the cost of the litigation, the outcome, or both.  For that reason, a client should feel empowered to ask tough questions about the structure of a proposed team and its members, and how the AFA reflects that proposed team.

  5. How Will Counsel Keep the Client Informed of Its Progress Against the AFA?

    A successful AFA requires trust, and this trust can be built through transparency.  Therefore, a last question that a client should ask before entering into an AFA is how the firm will keep the client informed about how the cost of the case is tracking to the AFA budget.  In response, a firm should propose mechanisms by which it will track actual fees and costs incurred to the AFA budget, and share those with the client. 

    Frequent communication about the budget is important because a client needs to know the firm is putting sufficient effort into the case to ensure success, but that the firm is not on a track to “blow the budget” such that the funds run out before trial.  A properly designed AFA should provide the firm sufficient resources to litigate the entire case successfully, including trial, and few things are more discouraging to a client than suddenly learning before trial that a firm needs to renegotiate an AFA because it has already spent the entire budget. 

    In response to a client’s question, a firm should propose regular reporting of the actual-to-budget spending, and regular status reports.  The firm should closely track the litigation events to the assumptions built into the AFA, and alert the client if they diverge.  The more open the communication about the progress of the AFA and the status of the case, then the earlier that issues can be spotted and addressed.  AFAs ultimately are a partnership between the firm and a client, and both should participate to ensure that they are running smoothly.

    There are, of course, many additional questions inside and outside counsel should address before accepting/submitting an AFA proposal for a litigation matter. Even with respect to the five questions above, there is significant complexity in translating the information received from the prospective client into a well-planned AFA proposal.  We touch on some of these additional considerations in the final article in this series, and in three additional articles that appear in the fifth edition of the Legal Project Management Quick Reference Guide

The authors are partners in WilmerHale’s Litigation/Controversy Department and IP Litigation Practice. This is Part 2 in a series of three related articles that have been adapted from Law 360 for the fifth edition of the Legal Project Management Quick Reference Guide.  The Guide also includes three additional articles on this topic by the same authors.

 

      


Litigation AFAs (Part 1 of 3)

By Greg Lantier , Natalie Hanlon Leh, and Mindy Sooter, WilmerHale

Five Questions Every Lawyer Should Ask the Client Before Proposing an AFA

Note: Most of the AFA principles described here also apply to transactional AFAs, but the details and examples in this series focus on litigation.

An Alternative Fee Arrangement (AFA) is frequently required as part of a law firm’s response to a client’s request for proposals to handle new litigation matters. In-house attorneys routinely receive, review and compare such proposals, and nearly all law firms regularly submit them, but the parties often do not follow a disciplined approach in developing a realistic budget.

The risks to clients of retaining outside counsel subject to a poorly constructed AFA are very real, while outside counsel have their own set of considerations regarding whether to submit a proposal. To help ensure that the interests and goals of outside counsel and their clients are properly aligned throughout a litigation matter—and stay that way—it is crucial that AFA proposals be intentional in their construction.

In this series of articles, we provide guidance on this issue to be sure that responses are meaningful to both the client and outside counsel. We will identify questions that lawyers, clients, and law firms should ask each other and themselves prior to proposing an AFA.

 

1. Why Is an AFA Being Requested?

Clients who request an AFA have various reasons for doing so, and it is the outside counsel’s role to understand their intentions. The first step in assembling an intelligent response to a request for an AFA is for outside counsel to be certain they understand the primary reasons that the client is making the request.

Most often, predictability is the key driver for the client. But, is it predictability regarding overall fees for the matter? Monthly fees? And/or both fees and costs? To correctly structure an AFA proposal, outside counsel must know the client’s primary focus, so if the client hasn’t articulated her intentions, outside counsel should not hesitate to ask.

In some cases, the client may be requesting an AFA simply to find the lowest possible price, putting the quality of the legal services on a lower shelf. Comparing AFA bids (particularly if they are fixed fee proposals) makes it easy for the client to obtain the lowest price service. If the client is accepting competing bids, that is helpful for the bidding parties to know. This insight is necessary for outside counsel to determine whether making the proposal is in the best interest of the firm. If submitting is not the right choice, the firm’s internal resources are saved; if it is the right choice, this information allows the firm to price the matter as attractively as possible to be competitive—again, making the process more efficient for both sides.

Other circumstances also exist: the client may be requesting an AFA to better align the incentives of outside counsel with the client’s own interests; or an in-house attorney may be requesting a proposal because it is required as a matter of policy by her employer, and she may not have a good understanding of the reasons for the AFA request.

Of course, and as is often the case, the reasons for requesting an AFA can include a combination of several of the above interests as well as others. No matter the circumstances, it is critical that outside counsel understand those interests prior to assembling an AFA.

 

2. Is the Client Able to Share Information Regarding the Value of the Matter?

Intelligently constructing an AFA proposal requires outside counsel to make numerous assumptions concerning what steps will be taken in litigating the case. Those assumptions should be based, in part, on the expected value of the case. If a case is expected to settle for a relatively modest sum, for example, the proposal likely does not need to assume that there will be significant motions practice during expert discovery. Further, the number of hours budgeted for written discovery should vary greatly depending on the stakes in the case.

Outside counsel should ask their in-house counterpart for preliminary information about the exposed revenues and/or whether (if the client is a defendant) plaintiff has already made a settlement demand.

 

3. What Outcomes Would the Client Consider a ‘Win’?

Learning what the client would consider a “win” is paramount in building an effective AFA proposal. Here’s why:

  • Articulating what would be a “win” will calibrate inside and outside counsel’s goals. Starting off on the same page is important for efficiency’s sake and satisfaction with results—from both client and outside counsel perspectives.
  • If the only outcome that will please the client is a favorable, dispositive decision on the merits, then the proposal should reflect that, potentially by building in success bonuses or other financial incentives for outside counsel to devote the resources necessary to achieve that result.
  • If the client would consider a settlement within a certain range a “win,” then the matter strategy—and, accordingly, the AFA proposal—ought to be constructed to maximize the likelihood of achieving a win while moderating the legal fees and costs expended to do so. It may be appropriate, for example, for outside counsel to discount the fees that would be expected were the case tried because outside counsel expects that the case will be resolved short of a trial.
  • If a “win” cannot be defined, the client and outside counsel should carefully consider whether to request/submit an AFA. It is possible, if not likely, that opting out of the proposal process in this situation is better than moving ahead with an AFA proposal that assumes the case must be litigated through a trial and that budgets accordingly. If the goals cannot be articulated, then it is less likely that either party will be satisfied with any outcome that is achieved.
  • It is helpful to both in-house and outside counsel to express the goal for the matter up front, because if that goal changes over the course of the litigation, it may be necessary to also adjust the fee arrangement.

 

4. What Level of Involvement Does the Client Expect to Have?

A client’s level of involvement impacts not only the results of many litigation matters, but it also can impact the costs.

Sometimes clients can help to decrease the time that outside counsel must devote to a matter by undertaking certain responsibilities, thereby decreasing the budget used to calculate an AFA. For example, in-house counsel can add significant value, and decrease fees, by taking responsibility for developing the facts in a portion of the matter. Under such an arrangement, in-house counsel functions in part as another member of outside-counsel’s litigation team—and one who does not need to be budgeted for in an AFA. Similarly, some clients have robust internal procedures for collecting and conducting first-level document review or preparing first drafts of responses to written discovery requests. These capabilities should be accounted for when preparing an AFA.

On the other hand, while it clearly improves the team’s work product, frequent consultation with the client can also be expensive. Discovery correspondence with opposing counsel, for example, can take twice as long if every email is sent first to the client, revised based on client feedback, recirculated for approval, and then sent to opposing counsel. The drafting of motions and other papers likewise can take significantly more time when a client regularly suggests substantial revisions to drafts and/or there are multiple revisions prior to filing most documents. Finally, the time required for multiple calls with a client each week can quickly add up.

Whether a client’s desired level of participation in the litigation increases or decreases costs, it is important for both the client and outside counsel to understand the impact this has on an AFA.

 

5. Who Else is the Client Asking for a Proposal?

A last question that outside counsel frequently do not ask, but should, is what other firms are submitting proposals. There are key reasons for asking the question.

Asking who else is submitting a proposal may prompt the client to comment on her decision-making process for selecting firms as candidates for the matter. This can provide valuable insight into what the client’s goals are and how the client is viewing the matter at the outset.

In addition, knowing what other firms will be bidding can inform both the structure of the AFA that outside counsel submits and its packaging. If, for example, the other firms all have lower hourly billing rates than outside counsel, it may make sense to submit an AFA that proposes making a larger initial investment to obtain an earlier result, followed by a negotiated resolution, rather than an AFA that assumes the matter will be litigated through expert discovery.

There are, of course, many additional questions inside and outside counsel should address before accepting/submitting an AFA proposal for a litigation matter. Even with respect to the five questions above, there is significant complexity in translating the information received from the prospective client into a well-planned AFA proposal. We will touch on some of these additional considerations in the remaining articles in this series.

 

The authors are partners in WilmerHale’s Litigation/Controversy Department and IP Litigation Practice. This is Part 1 in a series of three related articles that have been adapted from Law 360 for the fifth edition of the Legal Project Management Quick Reference Guide. The Guide also includes three additional articles on this topic by the same authors.

      



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