by Ken Lopez
Earlier this week I published, 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do. I realized something important while writing that article and while participating in follow-up discussions with readers and colleagues. It's an important realization as I think recognition of it might just lead to better litigation results and money savings for in-house counsel.
Here it is. Because of the current state of the relationship between most in-house counsel and outside litigation counsel, outside counsel are not asking for budget for everything they believe would help win a case. This is leading to short term savings and longer term major expenses.
You see, outside litigation counsel really want to please in-house counsel. And why shouldn't they? In-house counsel pays the bills, they ARE the client, and they represent the holy grail—the hope of a longer and broader legal relationship that pays dividends for the relationship/billing partner for years to come.
So, what's wrong with having a service provider try to please you? We could all use more of that, right? Isn't that just good customer service?
Here's the problem. Outside litigation counsel is, ideally, not acting as a mere service provider. Rather, they are acting as, and please forgive the cliche, a trusted advisor. Unfortunately, I think most outside litigation counsel feel like the balance between trusted advisor status and mere service provider status has tipped a bit too far toward service provider status in recent years.
When you are a service provider, your motivations are a bit different than when you are a trusted advisor. As a service provider, your goal is to make the customer happy and preserve the business relationship. You wouldn't want your doctor to only tell you what you want to hear. You want them to tell you what you need to hear. The same is true for your outside litigation counsel. But how can we expect outside litigation counsel to tell us the truth if they don't feel safe doing so.
I think most outside litigation counsel are scared. They're scared of losing business. They're scared of RFPs. They're scared of asking for what they honestly believe they need. And I think it is negatively affecting litigation outcomes, and I think it is mostly up to in-house counsel to solve this.
My mentor recently said, if you're not getting what you want from a relationship, your partner is likely not experiencing you as safe. It's true in any relationship, of course. Translated for litigation, if you're not getting the litigation outcomes you seek, it may be because outside litigation counsel does not feel safe asking you for the tools they need.
So, if you are in an in-house counsel role, ask yourself, are my litigators truly comfortable telling me, let alone asking for, what they need? Are they talking to me about mock trials, litigation consultants, and litigation graphics created based on persuasion science rather than the mere gut instinct of an inexpensive twenty-something graphic artist?
If they are not telling you that they need these things, it's likely either because they are afraid to ask or because they don't know that they should be asking. Either way, it's probably going to be up to you as in-house counsel to solve this problem, and my article from earlier this week about the in-house/outside counsel relationship provides a good framework for discussion.
Other articles by A2L Consulting focusing on litigation consulting, in-house counsel and value:
- 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do
- In-House Counsel Hiring Methods for Litigation Counsel Are Surprising
- 9 Things Outside Litigation Counsel Say About In-house Counsel
- Litigator & Litigation Consultant Value Added: A "Simple" Final Product
- Explaining the Value of Litigation Consulting to In-House Counsel
- 12 Alternative Fee Arrangements We Use and You Could Too
- 10 Things Litigation Consultants Do That WOW Litigators