I spoke on demonstrating the value of in-house counsel at a Legalwise seminar in Sydney on 19 March. You can read a copy of my paper here.

Demonstrating value is about adding value but also showing how you do it.

I joined Langes+ in mid 2009 after working six years as in-house counsel.  Now I’m back in a law firm, I hope to remember a few things I learned about outside counsel while in-house, as the client.

I learned these from experiences, both good and bad. (Somehow the bad experiences are always more memorable than the good ones. Maybe as a client you take good service for granted, and only notice when things go wrong.) I’d like to think these lessons will help me in private practice to better understand the client’s perspective.

So here is my list of the lessons I learned – my note to self.

1. Say less, listen more

The most common problem I encountered with outside counsel was misunderstanding. I noticed several kinds:

• Not understanding the facts: providing advice without a proper understanding of the facts to which the advice relates.
• Not understanding what advice is needed: providing advice that is not the type of advice the client is seeking. For example, giving a detailed exposition of the law when the client wants a ‘yes or no’ short answer.
• Not understanding the client’s expectations: for example, not appreciating the importance of the matter for the client, or not picking up on the client’s expectations for service delivery.

Better communication between lawyer and client is the remedy. Both lawyer and client need to work on this, but as the professional adviser, the external lawyer should take responsibility for making it happen. To improve communication, one of the main skills is to be a better listener. Getting all the facts from your client takes time. You need to ask a lot of questions, in a patient and non-intrusive manner. You need to clear your head as much as possible of your own assumptions and listen to what the client is saying. Ask clarifying questions to confirm your understanding.

2. Don’t build a bridge when a rope will do

My second gripe is the tendency of external legal advisers to over-engineer solutions – building a bridge when a rope will do. In part this relates back to misunderstanding – proposing solutions that don’t fit the client’s needs or expectations. Part of it also is imposing your perspective, rather than seeing things from the client’s standpoint. Another cause is a lack of commercial practicality with some external counsel. Beautifully engineered legal solutions sometimes are not operationally efficient. The in-house lawyer is more attuned to the commercial requirements of the client, and external counsel should take their cues from the guidance of internal counsel on these matters. Seek out the simple, cost effective solution, if that will suffice.

3. Advice is not just analysis

An excess of caution can often lead to advice that is not advice at all: the lawyer’s letter that manages to say very little, despite the use of many words. Advice is not just analysis. An adviser should take a position, to the extent that it is possible; a position that is a recommendation or a conclusion, not a decision, because the decision should always rest with the client. So often we are served up legal advice that does not really make any recommendation or conclusion. I expect that is because lawyers are concerned that they do not have all the facts or context, and fear that the client could come back at them if they make a recommendation that turns out not to be the best way forward. But the absence of any position in an advice makes it worthless. It should be possible to appropriately qualify one’s advice to minimise unforeseeable risks from error or misjudgement.

4. Get to the point

Winston Churchill said “jargon can be used to destroy any kind of human contact or even thought itself.” There is a common practice in legal writing to bury the advice under lengthy extracts from legislation or cases and mountains of wordy legal jargon. The more legal writing I read, the more I think that the complexity of the law unfortunately owes as much to the poor expression of lawyers as it owes to the concepts of the law. Some people think form and substance in legal writing are separate matters, where substance is important and form is merely cosmetic. According to this view, as lawyers we are legal technicians, and style is a matter for the marketing department. I reject that distinction between form and substance, as will any reader of an advice. Written advice is a communication – the communication of a recommendation or conclusion. As such, it should be coherent, concise and comprehensible. There is an art to writing legal advice. You should think as much about the way the advice is expressed as you do about its technical content.

5. Don’t ambush on the bill

External lawyers are not always as upfront as they should be about costs: how much a matter is likely to cost, and how much costs have been run up. Even if a good job has been done, as a client there is nothing more unwelcome than getting a nasty surprise on the bill for the work. If you agree on the price, stick to it. That’s the deal. If you provide an estimate that proves too low, alert the client at the earliest opportunity, then discuss and resolve. And please be realistic with estimates. A good understanding between lawyer and client should help in that regard.