Wednesday, 28 December 2011

Negotiation: the art of compromising positions


Negotiation is an art form, not a science, and countless books have been written on the subject.

But for lawyers, the overarching rules are simple.  We have a duty to do the best job for our client.  It is a key principle of our professional code.  So we must negotiate with this objective in mind.

What does doing the best job for our clients mean in non-professional conduct speak?  I think it means, in deal or commercial agreement terms anyway, getting the deal done, within a reasonable timescale, on terms that are broadly favourable for our client and which do not expose our client to material or uncustomary risks they are not fully aware of and willing to accept.  (Apologies for the length of that last sentence, my next post will focus on top tips for succinct drafting.)

Terms that are reasonable for our client do not generally mean terms that ringfence all risk for our client.  Nor do they mean terms that leave our client exposed to the point of butt nakedness.  In most commercial negotiatons reasonable terms will be a mid-point between these two extremes.

Occasionally (for the purposes of this blog post "Occasionally" means "All too frequently") and unfortunately lawyers can mistakenly think that doing the best job for their client actually does mean ringfencing all risk for their client.  It's almost like the starting point for the negotiation is "Don't Be Negligent" instead of "Be Pragmatic".  Such a negotiation position can come across as either overly-aggressive or unduly cautious.  Worst of all, it is uncommercial.  And it is a behaviour that will influence the other party to the negotiation to behave in the same way, because they fear that taking a pragmatic approach in such a negotiation will lead to concessions being offered that are not returned.  So the lawyers dig in and it all gets a bit yawningly counter-productive.

Lawyers are good at digging in.  We're good at coming up with arguments as to why a point should not be conceded.  We can talk for a long time too.  And whilst a negotiation like this unfolds we can even tell ourselves that we're doing a good job for our clients by protecting their position.  But what can be forgotten, is that we're not protecting our client's position by making it very difficult for them to do the deal, certainly within a reasonable timescale.  Legal hot air can extinguish the oxygen in the negotiation room with near fatal consequences for the transaction.  When this happens, lawyers have forgotten their clients' instructions and arguably our professional duties - to help our client get the deal done.

Deals and commercial agreements are about risk allocation.  Of course, there are risks lawyers will always want to (and should) avoid for their client and to an extent risk allocation will depend on negotiation positions.  But negotiation is a rare example of a situation where it is not embarrassing to be caught in a compromising position.  Indeed, in a negotiation it is more embarrassing to be caught in a non-compromising position than in a compromising one.    If lawyers try to over-allocate risk to the other party to a negotiation then we actually fail to do the best job for our clients for the reasons articulated above - and that is embarrassing.

To sum up, good lawyers breathe oxygen into a negotiation, less good ones exhale hot air.  Any similarities between the behaviours referred to in this post and real life lawyers are, of course, purely co-incidental.  And if you ever catch me negotiating in a manner that is inconsistent with this post then, naturally, I assure you that will be the justified exception that proves the rule.  

Thursday, 29 September 2011

Big Law Salaries - can we have a pep talk?


I am fortunate enough to work in an organisation full of experts.  About several hundred of them all told.  They know rather a lot about what makes the financial world tick.  In fact they often predict how it will tick and why.  And sometimes their thoughts move markets.  It is a privilege to work amongst them.

You can buy this expertise quite readily.  It costs about £300 to buy an FT.com subscription and read as much of this expertise as you like for a whole, entire year.  Hundreds and thousands of articles, most of them analytical, detailed and bathed in expert commentary.  FT plug over.

Contrast this with the organisation I used to work in, contrast it with any Big Law firm.  They too are full of experts.  They know quite a lot about how the law works.  They too can sometimes predict how it will tick and their thoughts can help their clients move markets, even if they cannot do it themselves. 

You cannot however buy that expertise very readily.  £300 will get you about an hour's time of someone who has about 4 or 5 years experience and they probably won't have time to tell you what you need to know in that short hour.  One hour.

Which would you rather buy with your £300?  What sounds like better value?  Even putting aside my subjective bias to my current employer, it is a bit of a proverbial no-brainer isn't it?  More economic and financial analysis than you can possibly read and which will provide you with a year-long competitive advantage, or an hour on the phone with a lawyer.

Why is there such a discrepancy in the price and value of journalism compared to professional services?  I propose that it is in no small way down to custom and practice.  Down to habitual lazy behaviour and assumptions which are not challenged by the clients that instruct law firms.  If you need any evidence of this behaviour, I recommend this excellent piece on Law.com by Mark Harris, the CEO of Axiom, which states that between 1998 and 2008 law firm pricing increased by 70 per cent, in contrast to a rise in non-legal business costs of 20 per cent over the same period.

One such un-challenged assumption is this – that the level of compensation payable in Big Law Firms is reasonable.  That in Big Law Firms, it is reasonable for PEP to be (give or take) no less than half a million pounds, that it is reasonable for newly qualified solicitors to be paid salaries in the region of £60,000 according to Roll on Friday’s data.  These assumptions seem reasonable at face value, but it is these assumptions which allow (or even require) law firms to charge in one hour what the FT charges a subscriber in one year.  Contrastingly, there is no assumption in news organisations that a large proportion of the experts within the workforce must earn high six or even seven figure salaries (or drawings to be technically correct), which is reflected in the price of the product.

In-house lawyers don't much like the hourly rate model.  There are of course plenty of alternatives to it these days but most of those alternatives are still priced on a "time spent" basis with the spectre of the hourly rate lurking in the background.  Law firm business models require a certain amount of money to be generated by a certain amount of time spent in order to fund the high compensation packages referred to.

I wonder if in-house lawyers are wasting our time focussing on the hourly rate model.  I wonder if instead we should be spending our time focussing on the reasonableness of the assumptions which exist in the marketplace about what private practice lawyers "should" earn.  But we don't, because market norms exist which make it abnormal to challenge such assumptions.

If news did not exist today as a service and were "invented" tomorrow, I'm confident it wouldn't be priced on the basis it is today.  What CEO of NewsCo (geddit?) would assemble a few hundred experts and ask them to write for a year in order to assemble a product that would sell for about one or two pounds a pop?   But because we are used to news being relatively cheap, it is accepted that it is cheap, despite the immense value created by thoughtful commentary and analysis of news.

It's time to drive down law firm rates.  But not just by reference to the hourly rate.  By reference to the irrational assumption that it is acceptable for clients to help their lawyers become millionaires.

Let me add an important rider.  I appreciate that Big Law lawyers are intelligent, work extremely hard and often at unsociable hours.  I accept that there is a price to pay to be able to call on that expertise at any hour, any day of the week.  And anyone working at that level of intensity has a right to expect a high level of compensation, otherwise why bother frankly.  So I'm not calling for the high end of the legal profession to adopt some kind of Marxist ideology.  But I am challenging the assumptions that exist in the legal marketplace about the "normal" levels of compensation payable.

A footnote for any aggrieved solicitors reading this who don't work in Big Law.  This post is about Big Law.  It is not intended as a criticism of the thousands of UK solicitors who ply their trade on the high street or elsewhere for more modest compensation.  And if you are an aggrieved solicitor reading this and working in Big Law, then feel free to pull my arguments apart in the comments section below.

Friday, 16 September 2011

Why this cloud has no silver lining for IT lawyers


I used to be an IT lawyer.  Before I moved in-house and developed a specialism in the legal vertical known as jackofalltradeslaw.  But even now, I like to think I know the difference between a software licence and a support agreement and most of the time I get it right.

IT law used to be easy if you were acting customer-side.  You stuck in some wacking great warranties which referred to what IT lawyers biblically defined as "the Specification".  You drafted 3 pages of accepance testing provisions which no right minded individual would ever want to try and follow.  And if you really knew your onions you blathered on about the criticality of escrow and forced the client to spend money with the NCC depositing source code which no-one would ever be able to really use anyway.  All safe in the knowledge that if the project went wrong then best case the supplier was firmly on the hook or worst case you could blame the client for providing a poor Specification (anyone ever seen a good one?), not doing the acceptance testing properly or forgetting to deposit the seventeenth version of the code update into escrow.  Job done.

IT software/maintenance/services also used to be expensive.  Which meant, when acting customer side, one could negotiate a liability cap that had meaning and could cause the supplier a degree of pain if they failed to deliver a product on time which danced and sang as the biblical Specification said it would.

On the whole, the legal risk in IT agreements used to be balanced, more or less, in favour of the customer.  And as in-house counsel at a company which buys IT services this was not an unhappy situation to be in.

Unfortunately though from a customer perspective this is no longer the case.

First came the web, HTML, XML and all that followed.  Suddenly the words "source code escrow" seemed to have any real resonance.  Although in practical terms the benefits to the customer of source code access was always questionable, the threat of an escrow trigger hanging over the supplier was a useful incentive to ensure that suppliers kept their side of the bargain, simply because they always hated the idea of handing over the crown jewels in a wost case scenario.  I think (and willingly stand to be corrected by any devs out there) that the value of the jewels reduced when the commercial web came along and HTML coding started to replace more proprietary software packages.

Then came open source.  It had always been in the background a bit, but with the advent of the web came an increased usage of open source by the dev heads.  Not only did this really put the final nail in the escrow coffin but it also allowed suppliers to start cutting back the warranties they provided their customers, even the customary IPR warranty backed up by the accompanying juicy indemnity. 

The negotiation see-saw had begun to tip, sending the customer up in the air.  And if a lack of warranties in respect of source code was not enough, now the customer also had to worry about ensuring compliance with third party open source licences, some of which require the customer to deposit modifications of the open source back into the software community.

Still, all was not lost from a customer perspective.  Customers still had our theoretical hundred page specifications to rely on (often of course drafted as six bullet points with "full specification to be agreed by the parties within 30 days of signature of this agreement".  Yeah, right) and the lovely warranties that went with it.  Didn't we?

Well, we did until the concept of agile development started to become mainstream.  For the uninitiated, agile development works using the concept of "sprints".  A sprint is broadly a series of project segments or stages which take a project from conceptual idea to final delivery.  But the problem for lawyers is that the project is defined and developed in the course of those sprints.  There is no specification at the beginning of the project, it is iterated and re-iterated over the course of a project.  The customer pays the supplier to develop something that does not really become properly defined until some way into the project.  So by now, customer-side lawyers also had to throw their specification warranties out of the window.  But we do at least get to define the word "Scrum Master" to show that we were still down with The IT Crowd.

During the time that these developments were taking place, the cost of IT services was reducing.  Good news for customers.  Bad news for customer-side lawyers, because as project values came down, so too did the value of liability caps, sometimes to such a degree that it would barely be worth suing the supplier even if a project did go a little bit Pete Tong.  Luckily (*coughs*) that rarely happens in IT projects so would never be an issue in practice.

And now we have "the cloud".  Whoever came up with this term deserves a creativity medal for finding a way of making an IT solution based on thousands of inter-connected boxes across the world sound exciting. The Cloud has a futuristic, almost mythical air about it, it makes you think This Is The Future.  The reality for customers is that your supplier is now not even telling you where they are hosting your data or website.  But don't worry, it's The Cloud so all will be well my friend.

Except the cloud requires the customer to carry out a barrel load of data protection due diligence as data flies across the world and, better still, suppliers seek to protect their liability position even further both by way of reduced caps, both because prices are yet again reduced and also cloud providers are able to say, in a way they couldn't in the days of more traditional outsourced hosting, we are not taking full responsibility for the entire gig.

As a result, the customer-side lawyer's role is becoming one of due diligence and risk identification, rather than one of negotiaton.

A colleague of mine described it thus: certain IT services are now effectively akin to buying a utility service.  Does your electricity provider offer service credits if the mains go down?  Will the water company promise service uptime?  Will your telco agree to fix a problem with the line within a defined period?   Of course not.  Buying certain IT services, even some critical ones, is just like ordering an extra Sky channel.

It's obviously wrong to consider the change in landscape solely or even primarily from a lawyer's perspective.  Customer-side CIOs are in a happy place.  The tech has improved which keeps the CIO happy.  The cost has gone down which keeps the CFO happy.  The ordering process is easy which keeps the procurement team happy.  And the customer-side lawyer must just learn to wrestle with the philosophical reality that commoditised utility service contracts aren't really negotiable - which naturally makes us unhappy.  But  no-one is going to lose too much sleep over that.

Anyone got a solution?  Am I getting it wrong?  Answers on a post-card please.  Or even better (out-housers) in an email – put it down to pro bono or biz dev, I promise not to tell anyone.

Wednesday, 31 August 2011

Did you have a holiday or a worliday?

As we head out of summer and into what the politicians call Conference Season my fellow in-house legal bloggers Tom Kilroy and Legal Bizzle have rushed out of the blogging traps in fine form.  I’ve been conscious that it’s a while since I put pen to paper and I’m grateful that my peers have jolted me into action.  But why the inaction?

Primarily, because I took two weeks holiday during August (in fact it was a whopping and unprecedented 12 days).  Which of course meant that the two weeks prior to holiday were heavily compressed at work and the first week back was a decompression exercise as I came out of the depths of two weeks off.  So I’ve had a lack of time to blog.

During my holiday I read this article, headlined “Switch off and stay on through worlidays” by one of the FT's most popular columnists, Lucy Kellaway (here’s another link if you don’t subscribe to the FT).  Lucy is an expert at highlighting the absurdities of corporate life (and beware, lawyers are not immune from the sting of Lucy’s pen).  The nub of Lucy’s article is that most professional workers no longer have holidays, we have worlidays, which is a combination of being on holiday whilst keeping in touch with work.  Lucy paints an idealistic picture of the work/holiday combo as involving the odd email by a stream followed by a barbecue.

I blogged, very much tongue-in-cheek (he said defensively), at the start of the summer about how some of my previous vacations have been plagued by conference calls.  Despite that piece, I do actually try very hard to put an emphasis on the holiday part of my worlidays.  In fact, to be candid, my two week break this summer has been pretty much all holiday.  And I feel better for it.

Lucy writes that these days “hardly anyone sends out-of-office emails at all” and shares an anecdote that she is aware of one media company whose staff are actually forbidden from using the out-of-office tool “on the grounds that they are both pointless and unprofessional”.

I’m glad I don’t work at that media company.   I don’t mind staying in touch with the office a bit whilst I’m away, but I don’t like the idea that people emailing me might be supposed to have the impression I’m there when I’m not and actually expect a response.  I don’t think it is unprofessional to put an out-of-office message on, in fact I think it’s unprofessional of any employer to tell its employees not to.  It might not be very macho law, but I’m happy to say that I think that most of us, yes including but not only lawyers, need time off where we are not on duty and I don’t think a lawyer can do the nuts and bolts of their job effectively from a swimming pool or watching a stream, to use Lucy’s examples.  Or even if it can be done effectively, it makes the lawyer less effective when they get back to base.

Law is a job that doesn’t necessarily lend itself to an optimal work/life balance.  Legal Bizzle touches on this subject fairly regularly in his tweets about weekend working and the occasional blog piece on the same subject.  Because of this reality of legal life, I think it is important that we do take the opportunity to recharge and to ensure that our holidays are holidays and not worlidays.  I took a one week break in May and about 36 hours of it were unavoidably (genuinely unavoidably) tanked by a work issue, and I returned from that break feeling less than recharged and racked with guilt about letting the family down more than a bit.

I’m pretty strict with my team when they go on holiday and make clear that I don’t expect them to be on Blackberry duty whilst they are away.  I think that any manager who doesn’t underline that to their staff is not doing their job properly.  People need and deserve time off.  Not just to recharge batteries, but to spend it with families and friends, who often put up with a lot at other times because the job of a lawyer is not as domestic arrangement friendly as it might be.  I’ve even been known to confiscate a Blackberry before one individual’s honeymoon.

To cite Legal Bizzle’s recent post, he has blogged about hoping to avoid a return to the seventies (as an aside, do read this, it is important).  With our obsession about work, availability and, let’s face it, a slight macho tendency for some people to enjoy working from holiday, are we in danger of giving the naughties a bad name in quite a different way?  Technology is still relatively new to us as a working generation – do we allow its novelty value to cloud our judgment?  No-one had a Blackberry ten years ago and corporate life seemed to function just fine (I realise that sounds a little bit luddite, but that’s not the spirit of my sentiment).  As technology improves at lightning speed it is only going to make it ever easier to stay in touch with the office.  Is that really what we’re inventing new technology for?  To make it easier to work?  I don’t think so.   Perhaps in twenty years time when the workplace is full of people who have known such technology since childhood they won’t see it as a tool which allows them to work whilst on holiday.  It might be that those of us who knew corporate life pre-Blackberry have got this all wrong.  Or maybe I’m just a bit of a lightweight.

My holiday strategy this year was to check my emails once a day to ensure no show-stoppers had arrived and then to close it down.  It took about fifteen minutes a day.  I told my team to call me rather than email me if anything urgent came up, which meant I didn’t have to stress about missing any important emails from them.  That worked pretty well, they only called me four times a day on average (joke – two texts in two weeks was it).  I also know that if the board or any other senior management needed me urgently then they would telephone, which is of course fine and part of the job.  In past years I’ve made the mistake of pro-actively wading in via email into issues that would either resolve themselves or could be sorted by someone else.  The risk of that more proactive approach is that before you know it an hour or two has passed and your mind has disappeared from the beach back to your desk – and that is not good for the soul.

I don’t like macho law or macho lawyering for the sake of it.  I hope all readers, lawyers or otherwise, have managed more of a holiday than a worliday.  If legal teams are well managed and adequately resourced, everyone should be able to have some work-free time off.  And if you managed to get a good work/life balance whilst you were away, why not try hard to maintain it, just a little bit, now that you’re back in the office – one way of doing this is NOT to repeat that sickening mantra that “I can barely remember my holiday” – say that too many times and I guarantee you that it will become true.

If you would like to read a contrary view to my non-macho corporate life view of the world, I recommend this interesting blog response to Lucy’s  “Worliday” article by Chris Abraham, the President of US social media marketing firm Abraham Harris, who makes the chilling argument that “you’re really not as ambitious as you think you are if you’re not tied to a Blackberry.....taking a couple weeks of work radio silence may be OK with your employer, but is it indeed a good idea for the vacation taker”?  On the whole Chris, yes, I think it is.

Thursday, 14 July 2011

PCC RIP: what next?

I remember a lesson from law school that seems apposite in the midst of the phone hacking maelstrom.  The lesson was that it is not enough for solicitors to actually be honest and ethical - but that we also need to be seen to be honest and ethical, in order to uphold public confidence in the legal profession.  The optics are almost as important as the reality.

For this reason, the PCC is dead.  Not because it is dishonest or unethical.  But because it cannot recover from the public's perception of it as ineffective and unable to regulate the media’s big beasts. Whether or not that view is fair is irrelevant.  The damage is irreparable and the PCC cannot recover from it.

Where do the press go from here?  There are two obvious signposts.  One is signposted Regulation.  The other points to a new form of Self-Regulation.

You are unlikely to find many media lawyers, including me, putting forward the argument for regulation.  It runs contrary to the concept of a "free press" and the fundamental right to freedom of expression granted by Article 10 of the European Convention on Human Rights.  Many outside the media will argue that the press has abused its right to enjoy such freedom.  But as a lawyer within the media, I disagree with that view.  The willingness of elements of the free press – most notably the Guardian, but also including (vested interest disclosure) the Financial Times and others - to hold News International to account, is illustrative of the fact that there are newspapers within the industry who have not abused that right.  Indeed, in exposing or condemning phone hacking, those titles have exercised that right and in doing so have exercised a form of self-regulation more forcibly than the PCC was either willing or able to.  Phone hacking is horrible.  But much of what the quality press does is honourable, important and casts light where otherwise there would be darkness.

Yet now is not the time to put forward an argument for an “as is” self-regulatory replacement for the PCC.  We cannot give the same body a new name and expect it to work.  If the press exists to inform the public, it needs to regain the confidence of the public.  To dress up a sheep in another sheep's clothing will not achieve that.

We need wholesale reform of the self-regulatory system.  And we need, paradoxical as this may sound, to "force" the press to participate in the self-regulatory system.  From the public's perspective, it is not good enough that organisations such as Express Newspapers can choose to sit outside of the framework.  And let's not stop at Express Newspapers - let's bring the "new press" into the game as well, why should organisations like the Huffington Post UK be any less accountable than, say, The Daily Telegraph?  A new system needs to be fit for purpose and fit for a digital age.

Forcing participation in a self-regulatory system requires some form of hybrid model.  I am not advocating a system of governmental licensing.  But I am advocating that there must be proper consequences for not participating.  Perhaps a form of statutory - yes, statutory - levy on advertising revenues for non-participants, with any levies being used to fund the new self-regulatory body.  In these days of low media margins, watch everyone queue up to participate.  And regular funding for the new body should come from industry, not from government.

The new body needs investigatory powers and it needs proper sanctions available to it.  Let's assume for one moment that the PCC had enjoyed the investigatory powers of the SFO or the FSA.  I think it is fair to say that the whole sorry phone hacking saga might have played out a little earlier than it has done.  As the press, let's agree to give the new body wide powers of investigation.  Let's make ourselves transparent and accountable.  Let's even agree to an annual compliance audit, the results of which are reported publicly.

Let's also agree to sanctions for non-compliance.  Real ones, going beyond an obligation to correct inaccuracies.  Fines tend to concentrate minds, as also would advertising embargoes as a sanction.  And if we want to be really extreme about this, let's pre-pay a portion of those fines in advance into an escrow account held by the new body, from which it can deduct monies if an organisation is fined.  Suspension or expulsion from the self-regulatory regime could form the ultimate sanction, with those statutory levies kicking-in as a result.

I don’t hold this up as a perfect blueprint immune from criticism, but as a starting point for debate.  But let's ensure that we create a self-regulatory body which looks like a proper regulator, which can act like a proper regulator, which feels like a proper regulator.  Because, if we don't, there are two unattractive alternatives.  Either the industry fails to regain the confidence of the public because any new self-regulatory system looks like the old one.  Or the alternative is that we become regulated by government and lose the privilege we currently have as a free press.

That privilege has been abused by some - let's not abuse it again by failing to use the opportunity, indeed obligation, that we now have to properly regulate ourselves.

Disclaimer: as always, my post reflects my views and not those of my employer

Wednesday, 29 June 2011

Johann Hari, quote shifting & the PCC


All members of the press have a duty to maintain the highest professional standards.  The press must take care not to publish inaccurate, misleading or distorted information. 

These are not my words, they are set out in the PCC Editor’s Code of Practice, which is the foundation stone of the self-regulatory framework for the UK press administered by the Press Complaints Commission.  

A mini-Twitter frenzy has broken out regarding the editorial practices of a journalist who works for The Independent, Johann Hari.  Mr Hari has admitted to attributing quotes to interview subjects that they did not actually say in the interview in question.  Let us be clear though, Mr Hari has not completely made the quotes up.  According to a comment piece in The Independent and his personal blog, he has occasionally used words previously written by the interview subject to express an idea or sentiment, as a substitute for what they actually said in an interview to express that same sentiment.  Mr Hari's justification for this practice is that his subjects often convey their thoughts clearer in their written word than they do in an oral interview.  No doubt this is true, most of us convey our thoughts more clearly when we have time to consider them, and we have more time for such consideration when we write, rather than when we speak.

This episode raises two questions.  Are Mr Hari's practices genuine cause for concern?  Or is this a classic case of media enjoying making mischief about other media and making an issue out of a non-issue?

The wonderful thing about Twitter is the instant reaction to incidents such as this from opinon formers.  Hari's own Editor, Simon Kelner, appears to be standing by his man, but also wrote yesterday "What a fiasco!" in a leader piece he penned (on which, see the postscript below).  FT.com's editor, Robert Shrimsley, finds Kelner's reaction surprising.   Times columnist David Aaronovitch takes a more compromising view that Hari has been "naive not wicked".  And John Prescott uses the incident to have a pop at News International about phone hacking.

On the seriousness scale, phone hacking this is not.  And nor, using a more relevant analogy, is this anything remotely akin to the Jayson Blair plagarism scandal which befell the New York Times a few years ago.  Any accustions of plagiarism in this context are unfair and wrong.

Mr Hari originally made his own articulate (and not entirely unpersuasive) case for his own defence on his blog.  But his defence fails to deal with the PCC issues I refer to above.  Has Mr Hari maintained high professional standards?  And has he published misleading or inaccurate information?  Well, if we accept the crux of Mr Hari's own defence, he has not misled anyone.  In fact, the basis of his argument is that his practice gave the reader a more accurate representation of his interview subject's views than a reported account of the interview transcript would have done.

But that argument ignores the obvious counter-argument.  That readers of a newspaper interview might reasonably expect quotes in an interview to have been taken from words said in the interview.  The clue is in the word - interview - which means an exchange of views, of comments.  An interview is not supposed to be a signpost to earlier stated views, whether or not those previously stated views were of a similar sentiment to the views expressed in the interview itself.  On that basis, I do not believe that Mr Hari's actions are consistent with the Editorial Code.

Whatever the intent behind Mr Hari's practices, this kind of practice is a slippery slope for serious news journalism.  I am not suggesting for one second that Mr Hari is on a slippery slope himself, his many defenders on Twitter are at pains to argue the case for the excellence of his journalism.  And The Independent is a serious, credible newspaper.  But I do believe that if serious, credible newspapers make editorial decisions to time shift quotes, that a foot is placed on that slippery slope. Such a practice is a form of reverse censorship.  The UK press believes in a free press.  Let it not determine its own definition of what a free press means to suit its own purposes.  To me, free means free to say what it wants (within the law) and to be honest and transparent whilst doing it.  The time shifting of quotes is not altogether transparent, in my view.  Where might that end if taken to the nth degree?

In fairness to Mr Hari, he has expanded on his original blog post in today's Independent comment piece and apologised for what he calls an error of judgment that he will not repeat.  His honesty and willingness to address the issue are commendable.  Cynics might say the piece was commissioned by Mr Kelner or the Indie's PR folk.  Who knows and so what if it was?  The Indie have done well to nip a potentially damaging issue in the bud and allowed their man to exit the storm gracefully with minimal collateral damage.  Text book handling of a potential crisis.

A quick postscript on Simon Kelner's "What a fiasco!" quote above.  Well, to be honest he didn't actually write that.  Or more accurately, he didn't write it in reaction to the Hari episode.  But he did write those words yesterday, about something else, as you can read here.  So, he must also have meant it in the Hari context, mustn't he?  Mhmm.  Perhaps not.  I hope you see my point about slippery slopes, even though I do not believe that Hari was even close to falling down one.

Friday, 17 June 2011

Have you got the LeXFactor?


Summer can be a painful time for the legal profession.  It's the time of year when most lawyers' partners (the domestic kind) force them to stop working for two weeks and spend time with the family.  This can involve rewarding activities such as applying factor 50 sun cream to a small child covered in sand who then yells at said lawyer.  Or may require the lawyer to acquire multiple ice creams from a distant kiosque and navigate them across a beach in 30 degree heat before they have melted.  Cue more yelling at lawyer.  Or for those lawyers who prefer a UK staycation, they get to spend time lying to their kids that Stonehenge is near Cornwall and that the fifteen mile tailback they are sitting in will soon get moving and before you know it we'll all be eating overpriced fish and chips at Rick Stein's gaff in Padstow together with the rest of Islington and Clapham.

What keeps a lawyer going during this awful period are two things. Wifi and 3G coverage.  These holiday essentials allow the lawyer to ensure that during the two weeks quality time with their partner and/or family, they will be able to find some downtime away from their loved ones, involving themselves in non-consequential work matters that someone back at base could easily sort out without them interfering from afar.  Canny holiday companies wishing to woo the legal profession would do well to provide an industry recognised symbol in their brochures illustrating excellence of mobile coverage.  Perhaps a judge's wig - the larger the wig, the better the coverage.  This holiday criteria is, for lawyers, at least as important as whether one's holiday destination has amentities such as a pool or proximity to the local nightlife or even a working toilet.

The highlight of any lawyer's holiday is "the holiday conference call".  It allows us to feel superior to the other adults in our holiday destination who clearly are not important enough to don a bluetooth headset whilst sitting on the edge of a rockpool.  It also allows us, upon our return to work, to  elicit sympathy from colleagues who know we had to give up our holiday time for that call (any lawyer worth their salt will only jump on a holiday conference call with at least four other participants, anything less is just not worth it in optical importance terms.  Preferably one of those five will be partner level (outhousers) or board level (in-housers)).

So with this context in mind, I introduce the inaugural Lawyer Holiday Conference Call Charts (#lhccc).  Straight into the top five go my own personal top five holiday conference calls (one of them was not strictly holiday but it makes it on merit).   And I invite anyone related to the profession to enter via the comments section below and see if they can top the charts.  Have your calls got the LeXFactor?!

*Plays Top of the Pops theme tune in background to accompany rest of post and adopts the voice of Bruno Brookes (or *oooh* Gary Davies if you prefer)*

5.
Location: British Airways Lounge, Terminal 5, London Heathrow
Callers: 4
LeXFactor: three of us on the call are sitting next to each other in the T5 lounge on Blackberry headsets looking like, well, the proverbial you know whats.  We're on our way to New York to negotiate outstanding issues on an acquisition. The fourth caller is our unfortunate US outhouse lawyer who we made get up at 0600 his time to dial into the call.  We couldn't have waited to speak to him in person 6 hours later, oh no, we are very important dealmakers you know.

4.
Location: Center Parcs, Sherwood Forest (to be precise, in that small hallway bit of the "lodge" between the outside door and the toilet)
Callers: 4
LeXFactor: staying in lodge with another family whose adult members are not lawyers.  So when they go on holiday they, erm, stay on holiday.  They don't even have Blackberries for goodness sake.  I am supposed to be going out for a drink with the bloke adult at 8pm.  For some reason, having listened to me on the phone through a thin wooden door for 90 minutes he no longer feels like a drink with me at 930pm and goes to bed in a bit of a huff.  Mhmm, who is the unreasonable one here?

3.
Location: Dunwich Heath, Suffolk (National Trust thingy)
Callers: 3 (rubbish, note to self, never ever again agree to less than 4)
LeXFactor: we have taken our kids to the heath to participate in a half term Halloween craft workshop run by the National Trust.  Other parents are helping their children make witches hats and taking nice holiday snaps.  I am not.  I am running around the Heath trying to find a mobile signal and shouting to drown out the howling winds (successfully - yay).

2.
Location: a UNESCO World Heritage Site on the small Maltese island of Gozo
Callers: Irrelevant.  But managed three calls in ten minutes.  Macho law in action
LeXFactor: taken family to the Maltese version of Stonehenge.  Guided tours a plenty.  The sun is shining.  History is here.  We're going to the beach soon.  And Daddy is walking 200 yards behind the family wearing his headphones talking frantically into his iPhone.  Other tourists look on pitifully.  Bah, their not lawyers, what do they know.

1.
Location: a church porch somewhere near Lake Windermere
Callers: zillions.  And VIP ones too
LeXFactor: Me and Mrs Legalbrat have spent the day cycling in the rain.  Much further than we intended.  With a toddler in tow.  We are wet, cold and fairly frazzled.  I *have* to be on this call.  We set off to drive back to our holiday cottage.  Oh no.  Before we get there, we have to cross a lake on a small ferry.  It is full of cars and we can't get on.  Decision time.  Stay in car with family and do call with toddler in back?  Or leave car, jump on ferry as foot passenger, leave family behind to make their own way back?  As a lawyer it is no decision.  Get onto ferry alone.  Reach other side of lake.  Church is only nearby building.  Sit shivering in church porch for 90 minute call.  Walk 20 mins back to the house.  A perfect end to the day.

So, lawyers, remember your holiday essentials this summer.  Family.  Check.  Passport.  Check.  Currency.  Check.  Suncream.  Check.  Phone.  Check.  Spare phone.  Check.  Mobile chargers.  Check.  Laptop.  Check.  3G dongle.  Check.  Map of destination Wifi hotspots.  Check.  Work life balance.  No room in luggage.  Happy holidays.

Thursday, 5 May 2011

One for the students: so, you want to work at Big Law?


So you want to be a lawyer?  Have you ever asked yourself why?  And you want to work in the City, working for Big Law?  Have you really really asked yourself why?

If you are a regular reader of my blog or follow me on Twitter, you might think I'm a little averse to Big Law LLP or to outhouse in general.  I'm not really.  It's just a bit of banter with some serious points thrown in.  As someone who trained at Big Law (Denton Hall, in the days when it had arguably the best media practice in London) there are many positive things to say about Big Law as a place to train and indeed practice: great training; technically excellent lawyers; sector specialists beyond measure; big brand clients; cutting edge work; big deals (if that's your thing); a certain atmosphere which, like it or not helps instil a sense of discipline and professionalism appropriate to being a lawyer; and let's face reality, it pays law school fees and a decent starting salary.

So if there is much to be said about training at Big Law, why am I writing a blog post challenging the reader as to whether it is the right thing for you to do?

Thankfully I am not often asked why I became a lawyer.  On the rare occasions I am, I'd like to express a passion since birth for the importance of intellectual property to the economy and for freedom of expression, but that would not exactly be true.  I knew nothing much about either of these things until well into my training contract.  From what I remember of my university cohort I was far from the only student who held such indifference.  Like most of my university contempories, I'd decided to read law because it seemed like "a good thing to do" at the time and then towards the end of the second year got swept up in what they used to call (and maybe still do) the milkround.  The milkround was my first introduction to City firms, where the glossy brochures and promises of what seemed dream-like starting salaries for a glorified Photocopying Administrator (albeit with the potential for promotion to Processor of Company Searches in my third seat) proved very attractive.

I don't remember much career advice at the time or encouragement from my University to consider alternative routes into law, such as the Bar, criminal work, legal aid practice, niche practices or even alternative careers in business.  So it was that in our final year of University my contempories and I would bandy around names like Ashurst Morris Crisp and Simmons & Simmons as if we'd been considering them and other Big Law firms as potential employers since the age of five.

In truth, I had no passion for becoming a lawyer before I joined the profession.  To be totally candid, I had no real passion for many aspects of it until I moved in-house, it was only then that I found what sparked my interest and motivated me.  I've asked myself since, what would have happened if I hadn't moved in-house, at the right time, to the right employer?  Would I still be practising law?  And if so, would I be enjoying it?  I think the answers are "maybe" and "no".

I compare my then student and trainee self with bloggers Benjamin Gray, Ashley Connick and the anonymous Miss TS.  Three young people whose passion and interest in different aspects of the law and the legal profession, even at such an early stage of their careers, is such that they are moved to write about it.  When I was a student or even a trainee, I wasn't interested in much beyond finishing the next bit of revision\research, having a beer with my friends and playing a bit of football (badly).  Don't get me wrong, I worked hard both as a student and a trainee and was very conscientious.  It's just that I wasn't much interested in law beyond doing what I had to do as well as I could.  The idea of spending non-curricula time writing or thinking about it would not have entered my head.  Thankfully that mind-set changed for me when I moved in-house at an early stage of my career.

Take away strict academic standards which I'm not qualified to write about, my anecdotal experience as a recruiter in the legal market and an observer of legal developments, is that student standards have improved beyond measure since my undergraduate days.  I don't mean the academic intelligence of students, I mean emotive intelligence and what you might call world experience.  Younger lawyers these days invariably have a list of impressive non-academic achievements as long as your arm and equally impressive work experience to boot.  The would-be trainee of 2011 needs far more than a 2(i) from a decent University, being a "member of the Law Society" and a 2 week work experience placement at the high street practice near their school in order to get a job in a City firm or decent set of chambers.  They need a genuine interest in law as a career well before that career starts and with that interest comes a far better understanding of what being a lawyer really entails then I expect most of my peers entering the profession had in the early 1990s.

And this, is a good thing.  And it is why, if you are a student reading law and who is only toying with entering the profession because you can and because it seeks the easy thing to do, rather than because you want to, really really want to, that I encourage you to think hard about your choices.

There are plenty of good and positive things about becoming a lawyer at Big Law.  But make no mistake, there are plenty of negative things too: the hours can be rough; you are beholden to the client; a lot of the work can be mundane and repetitive; it is competitive; law firm structures are inherently hierarchical and the hierarchy gets reinforced regularly; the mediocre moments far outweigh the genuine adrenaline inducing high points; and achieving a satisfying work/life balance, particularly if you have a family, is a challenge.  If you want to be a lawyer, you should be cogniscant of these things and want to be a lawyer in spite of them, not in ignorance of them.

If you are a law student or a trainee do you blog about law, write about law, tweet about law, take part in moots or in some other way spend, out of choice, any of your own personal leisure time doing something connected with law, because you want to?  If not, I suggest you think very hard about whether a career in the law is right for you.  Because let's face it, at interview, you are going to be up against the Benjamins and the Ashleys.  And not just at interview either, you're going to up against them when you are training, when you are learning, when you are building your own practice.  If they can be bothered more than you can now, won't it ever be thus?

And it's not just the Benjamins and Ashleys either.  It's their equivalents across the world - in India, China, South America, the Middle East.  A couple of years ago I was in a hotel in India with a colleague on a business trip.  We were discussing how our children were getting on at school.  Looking at the Indian business men (and in India for the most part it is sadly correct to say business "men") swanning around the hotel with their various entourages, my colleague said something that stuck with me: "It's not the kids in your kids' class they are going to be competing with for jobs.  It's the kids in school in China and India who are the real competition."  The world is shrinking by the day.

In Twitter speak, I'm #justsaying that there are other careers out there to consider.  Or at least alternatives to being sucked by default into the commercial world of Big Law.  You should consider them, look at them, experience them, and make an informed choice.  You want a job that is going to maintain your interest.  Look around Twitter, look at the lawyers on Twitter who come across as passionate about their jobs, not many of them seem to come from Big Law.  You don't find many securities or real estate lawyers blogging about the joys of being a securities lawyer or a real estate lawyer (Barry Gross of course being the excellent exception that proves the rule in the case of real estate!).  If you want to go and work in Big Law having thought about it, then great, it offers an excellent career.  But do it because you want to, not because you turned up to a milkround and it seemed like the easy thing to do.

Is there a risk that this is all a bit negative and discouraging?  Maybe, but that's not my intention.  My point is, if you're going to go for law as a career, do it properly.  Give yourself a competitive advantage before you apply for jobs.  Have a clearish idea of what you think you might be interested in doing.  Don't end up at Big Law for the wrong reasons because before you know it you will be qualifying and unsure of how it came to pass that you are now a financial services regulatory lawyer approaching partnership and earning too much to say stop, I want to get off the ride now.

I was fortunate, in that despite my relative indifference at an early stage in my career, I ended up practising law in a sector I am passionate about, interested in and at a fantastic company.  And there will be many others like me for who it all worked out despite such early indifference.  And I'm not saying that it's impossible to do it that way today.  Just that it is more difficult, there is more and better competition and I think employer's expectations are higher at an earlier stage.  Fifteen or so years ago I wasn't competing against students or trainees who wrote, blogged and Tweeted about law.  Unfortunately for you, you are.  It's game raising time, and it is only worth raising your game if this is what you really want to do.

The totality of legal careers is not Big Law.  The totality of potential careers is not being a lawyer.  Just think about it.  And if you go for it, the very best of luck.  The legal profession, including Big Law LLP, can (despite the caveats highlighted above) reward you with a enjoyable, rewarding and intellectually stimulating career.

Thursday, 28 April 2011

"Hello - would you like to buy some legal services?"


What is the best way for law firms to market their services?  What's the secret to marketing success?  I'm not sure why as an in-houser I care enough about this subject to write about it, but for some reason I do.  Maybe it is because a lot of the advice I see given to external lawyers on how to market their services tends to come from people who do not appear to be clients of law firms.  Don't get me wrong, I'm genuinely sure they have a valuable perspective on this.  But, without wishing to sound immodest, I imagine that an even more valuable perspective comes from in-house lawyers, the potential clients of outhousers seeking to build up their client list.

So how should law firms go about winning new clients?  What works and what doesn't?  Is it the right thing to do at all?  I recently read something suggesting that lawyer’s time is best spent maintaining existing relationships, not on building new ones.  Maybe that is true in strict ROI terms, but that's a defensive strategy and not how to build a successful long term practice.  In reality, some time has to be spent as a loss leader in seeking out new people that want to work with you.

Successful law firm marketing means relationship building that results in winning work from new clients.  There are three simple principles which matter:

1. First impressions count;
2. Little and frequent is better than big one-off impact marketing; and
3. It’s a long game, not a short one.

I will explore each of these in turn.

First impressions count.  Obvious, right?  Yes, but so so easy to get wrong.  And to get it right also requires a wider consideration of what constitutes marketing.  About 2 years ago I telephoned the switchboard of a well known Silver Circle firm I had never instructed.  It was after core hours, but no later than 7pm.  I needed some urgent advice on an issue that a couple of partners at this firm are known to be expert in.  After a bit of polite back and forth with the switchboard operator in an attempt to be put through to someone, I was told, "you do know it is after 5.30 sir?".  Massive first impressions count failure.  A reminder for law firms, indeed all businesses, that often front office staff may be the first point of contact with a potential new client. 

The "first impressions" lesson obviously goes far wider than this.  As a newly qualified lawyer I remember going to an museum exhibition my firm (well, not literally mine) was hosting for clients.  Before we went, it was drilled into us by the partners that if we saw anyone on their own at the event, then we had to go and speak to them, it was unacceptable for anyone to be left alone.  As a newly qualified lawyer with very little to offer in the way of experienced business chit chat I was hesitant to put this into practice, but such was the 3 line whip on it, I did.  I still remember how pleased the client I spoke to was that I'd approached him for a chat when he was otherwise milling around the gallery on his own.  So much so, that he later mentioned it to my department head.  Again, obvious right?  But now I am client side, I can recall events I've been invited to where I've felt it is incumbent on me to introduce myself and even on one or two occasions where I've been the one left milling around the room on my own (could be my lack of sparking conversation I guess).  If you invite someone to something, make them feel welcome when they get there and make sure that your colleagues do too.  Your invitee will have a better time and a better recollection of the event they went to.

On the same theme, outhousers, if you are ever on the other side of a transaction or a dispute to an in-house lawyer, do regard this as an opportunity to make a good first impression, to show them what you are good at, you never know, you might win some work.  I've instructed someone in the past who was on the other side and did a pretty good job at making our life miserable but in a very nice way.  And I've also got a small mental list of firms I will never instruct because of the impression I got of them when being on the other side of the table.  You can do the best job for your client whilst impressing a potential client at the same time.

First impressions count massively.  I'm of the cynical mindset that law firms love potential clients more than they love clients.  If I don't feel happy after a first meeting when a firm is seeking to win my instructions, my view is that I'm inevitably going to feel less happy if I ever instruct the firm (and for that reason, I'm not ever going to do it).

When I think of the occasions that I have instructed a firm I've not worked with before, it tends to be outhousers I have known for at least 12 months, usually more, and who I have met a few times for an hour or so at a time - maybe a breakfast, lunch or even (preferably) just a quick coffee.  I don't seek out regular corporate beanos from external lawyers and I don't believe that big high impact marketing, for example Wimbledon tickets, results in very much other than stress at keeping up with the Blackberry.   So whilst such occasional days may be all very nice, I don't think they achieve more in successful law firm marketing terms than a simple cup of coffee can.  A few coffee meetings over the course of a year or so is far more likely to ensure that a particular lawyer is front of mind when an issue arises, than a single "big ticket" corporate event where inevitably you are mingling with a number of different people, not just the lawyer who would like the in-houser to instruct them.

Long or short?  Of course, it is a long game.  But I will say this to outhousers.  A lack of instructions over even a period of months or longer does not mean that those instructions will not come and that you are wasting your time trying to gain them.  It is likely that an in-houser will only agree to meet more than once if they like you and are considering working with you.  But it might be a year or two and several meetings later until a matter comes up that leads to an instruction.  And I will say this to in-housers.  Don't waste your time or that of our private practice cousins by playing out this form of dating game if you have no intention of ever going on a proper first date, even if you are not sure when that date might arise.  To do so is, in my view, unprofessional and unfair.

Marketing external legal services is difficult.  Outhousers are slightly damned if they do (or at least are damned if they market them in anything approaching a hamfisted way) and damned if they don't.  Clients and potential clients like to feel wanted to some degree, like to feel that their lawyers and would-be lawyers are interested.  But they don't want to feel bombarded.  Treading that fine line between too little and too much contact is hard.  I think most sensible in-housers recognise this.  What we're looking for is simple, because in reality there are not many differentiators between the top 50 or even arguably top 100 firms.

We're looking for people we like, who we can see ourselves working with, who display an interest in our business, and who are prepared to get to know us over time.  It's no more complex than that.  And by way of proof, earlier this year when I needed some urgent advice, I did pick up the telephone to an outhouser who had been in touch with me on the above “occasional coffee” basis.  We chatted and exchanged a few emails and eventually I was able to fix the problem without his help.  And better, he did not send me a bill for the half an hour or so he'd spent trying to assist.  Which of course means that next time there is a fire drill, he is even more likely to get a call from me.

Of course, if any outhousers disagree and think that big bang one-off marketing plays do work, then I'm happy to test the theory.  I tentatively suggest having a chat about it in an executive box at the European Cup Final at Wembley in May as an appropriate test-bed.  All in the interests of research, naturally.