Tough Times for Corporate Legal Departments

Lexakos asked law department leaders again about their concerns, priorities and resource allocation plans for 2009. This year’s benchmarking survey covers reporting metrics, outsource planning for IP and litigation, budget pressures, e-discovery, privilege waiver management in relation to new Federal Evidence Rule 502, and other compliance priorities.

In 2007 and 2008, Compliance Week, the leading publication and information service on corporate governance, risk and compliance, chose Lexakos as a conduit for gathering and analyzing compliance needs across all industries

On February 3, 2009, Compliance Week featured the results from Lexakos’ most recent strategic planning survey, with over 230 corporations participating. In addition to highlighting Lexakos’ relevance in the compliance arena, this coverage gives Lexakos an exclusive perspective of hundreds of companies’ needs and practices.   Here is an excerpt:

The new study of corporate law departments confirms what most general counsels already know: 2009 is going to be a rough year.

Forty percent of legal departments expect a decrease in their overall operating budget for 2009, compared to only 8 percent last year. At the same time, however, litigation activity is rising—particularly for the financial sector, besieged by investors unhappy with the sub-prime mortgage meltdown and victims of the Bernard Madoff Ponzi scheme.

Wolf “Even though budgets are being tightened, litigation is going up,” says Rick Wolf, CEO of the consulting firm Lexakos, which conducted the survey. “What it suggests to me is that they’re being asked to do more with less.”

David Cohen, co-chair of the e-discovery analysis and technology group at the law firm K&L Gates, has observed similar trends. “Corporate law departments are facing two realities. The first reality is that litigation does not go away in troubling economic times, and the cost of that litigation tends to go up, not down, every year,” he says. “General counsel are left on the horns of a dilemma: how to cut litigation costs in the face of no decrease in litigation, and often increasing e-discovery demands.”

Those pressures should lead in-house legal departments to prune back the volume of work they leave to outside law firms by doing more work themselves. But law departments are now under their own pressure to cut back on staff. “The result of all of that, paradoxically, is that lawyers are stretched even more thinly than they have been in the past, making it difficult to bring more work in house,” Cohen says.

As a result, law departments are getting more creative in how they cut costs and managing themselves more efficiently, Wolf says. For example, only 32 percent of law departments last year used a centralized litigation group; that number jumped to 49 percent for 2009. And while only 20 percent of respondents last year said their legal departments had a strategic plan for the year, that number soared to 57 percent this year.

Compliance Week ran a similar feature article on the Lexakos 2008 Strategic Planning Survey titled “Records Management: A Governance Crisis?”

For a copy contact information@lexakos.com.

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Kill the Billable Hour? A British Response

As much as the legal sector experiences a change in momentum, such a change seems to be occurring now.

Last week, The Am Law Daily picked up on a piece penned by Cravath, Swaine & Moore‘s Evan Chesler in the latest issue of Forbes magazine, entitled “Time to Kill the Billable Hour.” Cravath’s presiding partner, in presenting an impassioned case for abandoning the practice of charging of clients by the hour, lent his voice to a growing debate.

In the United Kingdom, lawyers and clients have never had the same all-consuming obsession with hourly billing as their American peers. Still, over the last 20 years hourly rates have become the dominant currency here as well, and the tide slowly is turning — some British companies and firms are much further along in making the change.

Last summer, our London-based sibling publication Legal Week broke the story that commercial TV network ITV asked its outside law firms to abandon the billable hour and instead adopt alternative billing arrangements. General counsel Andrew Garard, who joined the company in the fall of 2007 from the London office of Dewey & LeBoeuf, said he wanted ITV to become the first major U.K. company to abandon this form of billing, and he initiated a review of the company’s outside legal providers.

By last November, Garard had finalized a list of approved outside counsel, a panel of nine firms, including Dewey, DLA Piper, Lovells, and Slaughter and May, that had committed to alternative billing methods. “None of the firms will bill us with reference to a measure of time on any matters,” Garard told Legal Week.

For more see law.com.

E-Discovery Trends in 2009 — New developments in e-discovery will affect enterprise general counsel and compliance officers, law firms serving corporate clients, and IT departments

By Christine Taylor, January 9, 2008, 12:10 PM

A few years ago, the Taneja Group coined the term “Information Classification and Management” (ICM) to describe the technology of locating and classifying data throughout the enterprise. ICM covered sub-technology sectors such as e-discovery, compliance, data security control, and data management. However, we saw the term “e-discovery” trump the more comprehensive name as rabid attention turned from ICM to the specifics of civil litigation software tools. We are now seeing the e-discovery term itself take on a fuller usage, more akin to ICM. People do use the term when talking about civil litigation, but are also expanding it to encompass compliance, corporate governance, data classification, and even knowledge management.

In this broad sense we have looked at the trends of the e-discovery market as they impact its largest stakeholders: the enterprise general counsel and compliance officers, law firms serving corporate clients, and IT.

The crux of the matter is that e-discovery and its related areas will be extremely hot for litigation and compliance, especially those related to the financial meltdown. The market increasingly understands the necessity of e-discovery software tools and systems, and will move toward proactive e-discovery adoption. A more reactive approach will remain alive and well as many companies will still avoid implementation until driven to it by a lawsuit or federal investigation. But companies will increasingly understand that the e-discovery solution phenomenon is much more than a litigation aid. It also has major effects on federal compliance and internal governance, and potentially on data management throughout the enterprise.

For more see byteandswitch.com.

Former GC: BigLaw Really Is Better

When Ron Friedmann recently derided general counsel for staying with time-worn practices in their hiring of outside counsel, even in the face of the worst economic crisis since the Depression, he heard from one former GC who said that large companies will not be abandoning their BigLaw outside counsel anytime in the foreseeable future. With her permission, Friedmann shares her surprisingly frank comments.

Sheryl Katz is now an independent legal and technology consultant. She was formerly vice president and general counsel at 101 Communications LLC, now part of 1105 Media. She has also been a partner with Graham & James, counsel to Perkins Coie and an associate at Bryan Cave and WilmerHale. With that experience under her belt, she believes that any movement towards smaller firms is nothing more than a minor trend.

If small firms that would do the same quality work for less were truly available, I would have farmed out more work to them. In some cases former law school classmates, or former attorneys at Wilmer or other firms that I knew, were available in smaller firms to help on matters. Sometimes this resulted in good quality work and lower bills. However, small firms often don’t have the depth of staff, so some matters that are not even necessarily that big can really only be handled by a bigger firm. Also, on a lot of transactions you really need your tax lawyer, corporate lawyer and banking lawyer to be at the same firm.
There are plenty of good lawyers in firms of all sizes and “great” solo practitioners, she acknowledges. “Unfortunately,” she adds, “there is also a lot of mediocrity.” And then there is that CYA factor heard often among GC:

Going to a large firm in a lot of cases is sort of like going to a chain restaurant. You pretty much know that the minimum you are going to get is going to be acceptable. And if the firm messes up, as General Counsel, you are covered. After all, you can always say “It may be a mess but Blank, Blank and Blank is reputed to be a great firm so don’t fault me for hiring them.”

I guess we can call her chain-resturant analogy the food-poisoning theory of law department management. Better the mass-produced burger that is safe and predictable than the risk of a gourmet meal.

By Robert J. Ambrogi on December 29, 2008 at 12:42 PM

GCs Starting to Bring the Work Back Home

Leslie A. Gordon
GC California Magazine
December 18, 2008

Like many in-house lawyers, Shannon Dwyer, general counsel at St. Joseph Health System in the Southern California city of Orange, has been gearing up for the 2010 budgeting cycle. The $4 billion, nonprofit organization, which runs 14 hospitals in three states, has a “responsibility to be a good steward of the assets,” says Dwyer. But in the current economy, she’s finding that using seasoned attorneys at large law firms is quickly becoming “cost-prohibitive.”

As a result, she’s been looking to hire a new lawyer — bringing her legal department to nine attorneys — to help handle even more of St. Joseph’s legal work in house. “It’s a basic cost-benefit analysis,” says Dwyer. “Although there’s some convincing of management to be done whenever you increase [employee staffing] at the corporate level, it’s not difficult to make the business case” that adding in-house lawyers is cheaper in the long run than paying increasingly rising outside attorney fees.

Demonstrating a trend that has significant implications for law firms, a growing number of California companies are under pressure to control costs and handle more work in house, where they can come closer to paying wholesale rather than retail for legal services. According to a 2008 survey of chief legal officers, conducted by consulting firm Altman Weil, GCs like Dwyer are planning to decrease their use of outside firms, which typically constitute the largest expense of any corporate legal department. Correspondingly, chief legal officers plan to increase law department staffing over the next 12 months, according to the survey, which was conducted this past May and June.

Specifically, the survey reports that 49 percent of legal departments plan to hire additional lawyers in the next year, up from the 40 percent who said they planned on new hiring in the last survey. At the same time, 26 percent of law departments will decrease their outside counsel, up significantly from 16 percent in last year’s survey. Only eight percent of CLOs plan to increase their use of outside counsel, down from 18 percent. Not surprisingly, CLOs cited cost control as their top concern over the next three to five years.

Hildebrandt International, another legal consulting firm, conducted a similar survey, which supports the Altman Weil conclusions. Hildebrandt’s 2008 law department survey found that inside legal spending rose by five percent in the United States while spending on outside counsel increased by just two percent. Nearly a third — 29 percent — of the 223 responding companies anticipate a decrease in the number of law firms they will use.

For more see law.com.

Will Tough Economy Push Companies to Outsource Legal Work? Some companies see big savings in ‘offshoring’ legal work – But how’s the quality?

David Hechler
Corporate Counsel
December 22, 2008

Martin Shively directs the worldwide IP operations of Microsoft Corp. But he doesn’t commute to the company’s campus in Redmond, Wash., every day. The associate GC works in a remote office in New Delhi, where he’s been based for 18 months overseeing not call centers, but outsourced patent work. And his operation is saving Microsoft millions on its legal bills.

Shively’s Indian experience dates back to 2004, when he took over budget responsibility for Microsoft’s patent group. There was a lot of buzz about outsourcing legal work to India; corporations like General Electric Co. were doing it, and slashing their legal bills. So Shively figured why not Microsoft? He started with the most basic task he could think of — proofreading patent applications. Instead of paying high-priced associates to do this work at a dozen U.S. law firms that drafted Microsoft’s filings, he hired one vendor in New Delhi to do them all. It was, he says, “a safe place to have a failure.” If it flopped “we just wouldn’t tell anyone,” he laughs.

But it didn’t flop. “We went there to save money,” he acknowledges. “We stayed and expanded because we liked the quality of the work.” It wasn’t just OK, it was better.

For more see law.com.

What Comes First — The RFP or the Consultant? Some Helpful Tips for Corporate Lawyers not Accustomed to Formulating or Responding to a Request for Proposal

There is no one-size-fits-all template for a professional services RFP, and certainly not with regards to implementing a global records and information management program.  If you decide to use a template from your friends in procurement or one you find online, certain attributes should be included in an RFP when undertaking a project of importance.   These are the basic steps I would take in phase one.  I am happy to confer with others on the wisdom or even shortcomings of this approach, on or offline.

  • Identify an advisor or consultant to assist with conducting a high-level gaps analysis on a fix-rate basis. The fixed rate is important because you need predictability of cost at the outset before getting approval to undertake a more broad, global project. There is, admittedly, somewhat of a “what comes first, the chicken or the egg” dilemma, but you need to define your scope and needs up front. A good gaps analysis should include a review of documents, processes, policies and procedures, and governance relative to records management compliance on the paper and electronic side of the equation.

  • A gaps analysis would produce a project definition document (“PDD”) that includes, among other things, (i) RFP template based on gaps/findings, (ii) proposed budget and financial model, (iii) analysis of reasonable alternatives (e.g., buy versus build), (iv) resource allocation, and (v) presentation with executive summary for management consideration and ultimate approval. With budget approval and a PDD in hand, you will be in a position to tailor your RFP to your specific need and efficiently entertain bids for work in this area.

  • The gaps analysis and PDD phase of a moderate to complex sized project should take no more than 2 to 4 weeks to complete, based on availability of company personnel (for limited interviews and kick off meetings) and documentation for due diligence.

  • When going through the RFP exercise, vendors should be subject to an agreed statement of work, and compensated based on achievement of milestones defined at the outset of the project. The statement of work also should be subject to a detailed project plan, with change management protocols incorporated to avoid “project creep” and performance outside budget.

Following this approach will not guarantee success, but will go a long way toward producing measurable results that are on time and in budget.