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Responsible briefing: Reversing the lens

30 November 2018 - By Sian Wingate

In the October issue of LawTalk, ILANZ offered its collective thoughts on practical ways in which in-house counsel can be model clients when instructing their external legal providers.

This month, we continue to gather in practical advice, but in reverse. ILANZ applied a user experience mind-set to test the practical suggestions made with the users themselves, the external counsel we instruct.

A user experience mindset

User experience design is the process of enhancing user satisfaction by improving the usability, accessibility, and pleasure provided in the interaction between the user and the product.

A woman writing notes

The holistic user-experience is made up of three components: the user needs; the business goals of the user; and the information about each of the above.

In-house counsel reading this may think to themselves, “hang on a minute, WE are the user, NOT our external legal providers”. That is true of course in relation to the product of legal services that is purchased by us from external counsel.

Reversing the lens, ILANZ identifies that there is a product that we, as instructing in-house counsel, supply to our external legal partners. Consider this:

  • A “product” does not have to be bought or sold.
  • A “product” is also defined as the result of an action or process.
  • The action of instructing and the process of how this is managed are the defining features of the in-house interaction with its external counsel.
  • Our in-house “product” is therefore the result of the above: this being the relationship with our external counsel.

ILANZ worked with its sponsor partners at Bell Gully, Buddle Findlay, Chapman Tripp and Greenwood Roche to better understand how the relationship really matters in determining how useful, accessible and pleasant the resulting provision of legal support can be for both parties.

The user needs analysis

A fundamental need of instructing in-house counsel is legal support from its external legal provider to meet the business and risk management needs of its employer. The reciprocal need of the external provider is to possess a good working knowledge of its client’s world and business goals to achieve its client’s goals.

Bell Gully reflects that “since an in-house lawyer knows the business best, acting together and pooling resources can lead to great outcomes”.

The law firms share their practical methods of achieving their needs.

The coffee catch-up

This New Zealand institution is more than a caffeine hit. Bell Gully tells us that “you really can’t beat having a coffee catch-up or meeting in person to gain some of the broader perspective … it really can pay dividends later in tailoring advice.”

Follow the industry

Greenwood Roche recommends following industry news and joining the relevant industry association of the client if possible.

Read annual and half-yearly reports

How many in-house counsel actually read our own annual or half-yearly reports? Understanding the story behind the numbers and the reports is invaluable according to Greenwood Roche.

Understand the organisational structure

Chapman Tripp values learning about a client’s organisational structure and about the people who work in the organisation from the management down. Knowing who your client’s stakeholders are and how they fit in the overall instruction is important for the in-house lawyer taking internal instructions. It is just as important for your external counsel to know this too. Exchange of an organisation chart and a walk through who does what is a quick win.

Meet the key stakeholders

Buddle Findlay engage periodically with people in the wider business to ensure they are up-to-date with the wider context in which they provide their advice and to understand the current strategic focus of the business. This is echoed by all the law firms ILANZ spoke with: meeting the business teams adds a rich layer of context.

Identifying the business goals

Your employer, your own in-house legal team and every one of your internal client teams will have its own business and strategic goals.

We make it our business as in-house counsel to have a helicopter view of such goals and to try to align our legal practice to achieve these goals. We balance being a facilitator with being a risk manager on a daily basis in this effort: as do our external legal providers.

The law firms ILANZ spoke with are unanimous in the value of the time investment of sharing these business and strategic goals with them.

  • Chapman Tripp told ILANZ that “the more we learn about our clients’ businesses, objectives and goals, the more effective we can be in providing the best advice, in the most user-friendly format, not only as requested but also, as someone that sits outside the business, being able to identify other opportunities that fit with the client’s strategy and goals that those within the organisation may not have picked up on.”
  • Bell Gully enjoys regular updates as they say that “it’s great to have an ongoing dialogue of what is happening internally and what the priorities are for the business”.
  • Buddle Findlay explains that in good instructions, “we might have a conversation with the client, before being asked to look at any documents, in which case we are given a good overview of what the client wants to achieve, and how it intends to achieve that result”.
  • Greenwood Roche notes that it “can’t overstate the importance of providing background and context to instructions, particularly if they are urgent and given in haste”. This includes the strategic and business goal your team or your internal client is trying to achieve.

Information gathering

The culmination of the investment by law firms in the methods described above and the reciprocal time invested by the instructing in-house counsel to engage in these methods all lead to the acquisition of this third, fundamental input needed for a useful and enjoyable user experience: information.

However, the law firms lament that they cannot always access the information they need to do a great job. It is the experience of some law firms that in-house counsel can act as a ‘hard gatekeeper’. This is keeping the external legal adviser at arm’s length from the business. This can frustrate efforts to get in-depth information that is critical to tailoring the advice or legal product.

The gatekeeper effect

Some observations from the law firms on the gatekeeper approach are that:

  • “This can be counter-productive, and can result in the provision of advice that is not as responsive to the needs of the business as it could and should be”.
  • Gaining access to the internal customer “at the very least saves in-house counsel from having to interpret or repackage advice”.
  • It can actually be frustrating to feel that “we are being held ‘at bay’ by a legal division and sometimes it’s really useful to have access to the in-house client direct so that we can engage directly – as part of a team with the in-house legal advisor. This shouldn’t necessarily be seen as double-up: we can act as a foil for each other and add value that way.”

ILANZ looked into why this gatekeeper approach might be applied.

It can be due to a concern that fees will stack up due to the minutes external counsel spend speaking with the business and a lack of control around cost-control. Many in-house legal teams are a cost-centre who have to reduce legal spend, not increase it.

A man and a woman shaking hands

Another concern is that silos of information can be caught in the direct exchange between the internal client and the external lawyer which, in turn, causes issues for in-house counsel not being across the matter themselves.

It can also be due to the business team’s lack of comfort in dealing with a ‘firm lawyer’. Lawyers can be a little intimidating to business units. In-house lawyers strive to overcome this by being approachable facilitators. The business may hold the perception that an ‘external’ is not as approachable (even if this is not the case in reality).

The consensus from the law firms is that having access to the business is a key user need that they have.

How to overcome the gatekeeper effect

Some suggested approaches that the law firms offer to overcome the concerns above are:

Agree clear parameters with your external counsel and your business units on cost

All large law firms have developed pricing arrangements to suit all manner of needs: you just need to ask.

Bell Gully comments that law firms “understand that in-house counsel are managing their own internal spend, but are also often part of a wider project budget”. They say having the fees discussion early on is a win-win. This will help to manage expectations about the level of seniority you are expecting on the file and the level of certainty you are looking for on costs.

Greenwood Roche reflects that the benefit of access to the internal stakeholder is that “it is no surprise that in the strongest and most enduring client relationships, we are treated as ‘part of the family’. That does not mean we become complacent; on the contrary, the client’s concerns become our concerns and, moreover, we are more likely to pre-empt legal needs and risks/opportunities proactively. Ultimately this is more cost-effective”.

Explain your information management requirements to both your external counsel and your internal client

If you use a matter management tool, the external counsel and internal client could input into it directly with information exchanges (emails, telephone notes, document exchanges) saving you time and ensuring the matter management tool is up-to-date.

If Outlook is still your go-to filing system, you could request that your external counsel emails you a telephone or file note summarising the internal exchange and set up a rule to move these emails into a sub-folder to catch up and read later when suits you best to avoid a feeling that you are drowning in CCd emails.

One law firm kindly reminds us that they have PAs and legal secretaries. In-house legal teams and our business units rarely have the luxury of this kind of resource. Utilising the resources available to a law firm and which are priced into their fee structure is paramount to efficiency.

Arrange a meet and greet with your internal clients and the external lawyer they may partner with now or in the future

Include your internal client in a post-instruction phone call or meeting to supply valuable context and to communicate the business goal.

Greenwood Roche makes the innovative suggestion that it could be useful to do some sort of reverse business/legal topic briefing. The internal customer briefs both you and your external counsel so that both sets of lawyers get value out of the occasion. Often we arrange these for ourselves in-house to get up to speed with upcoming projects, business unit tactical plans or lessons learned: it would be a huge benefit to remember to include the other lawyers who help the business, the external firms.

Chapman Tripp tells us that it “strives to work collaboratively with in-house teams in supporting their internal clients in whatever form that takes. Sometimes that is being the extra pair of hands behind the scenes when things get busy and other times it is working collaboratively with in-house lawyers supporting them at the table with internal clients”.

Reflections on the user experience

When ILANZ asks lawyers of both the in-house and law firm practice type why they enjoy being a lawyer, the response is almost universally the same: they enjoy helping people.

This is a core function of a user experience: to gain pleasure from the interaction. The way in which external legal providers can gain pleasure from their interactions with in-house clients is knowing that they have added real value.

Anthropologist and leadership author Simon Sinek reflects that, “as human beings we put a premium on time because it is an equal commodity and it is a non-redeemable commodity”. An in-house lawyer is always working to full capacity: this is our world. There is always something on our to-do list. We do not experience the peaks and flows that can occur in private practice. The more work you do, the more that follows as your internal customers start to trust you as an adviser.

It follows then that if our time is a commodity then we want to spend it wisely.

The time we spend cultivating our relationships with our external legal providers in the ways described above is time well spent in the view of both the firms and of ILANZ: it means in-house lawyers can truly add value to all of our ‘users’, including our employers, our internal clients and our external legal partners.

Sian Wingate is president of ILANZ, the Law Society’s In-house section. This article includes contributions from Greg Wise of Chapman Tripp, Brigid McArthur of Greenwood Roche, Jennifer Caldwell and Lisette Hood of Buddle Findlay and Jenny Stevens of Bell Gully.

Last updated on the 30th November 2018