Drafting advice . . . from Princess Leia

I enjoy a bit of sci-fi every now and again and sometimes think that much can be learned from the sage advice of Yoda and friends ... well not really but it can be fun imaging how Yoda would dispense legal advice:

"Enter into that contract will you hmm? Difficult to see the future is. Trust him I do not!"

However, when recently remembering some of Princess Leia's appearances (stop thinking bikini in Return of the Jedi guys) I remembered this line from Episode IV: The New Hope responding to Governer Tarkin's claim that the Death Star meant no planet would dare oppose the Emporer:

"The more you tighten your grip, Tarkin, the more star systems will slip through your fingers"

What on earth is the relevance of this to drafting I hear you ask (not in space of course since sound cannot travel in that vacuum)?

There are some lawyers and, indeed, some clients who believe that in order to make every contract watertight (I am yet to see any contract which achieves this aim) it must cater for every possible event. They will spend painstaking hours trying to conceive every possible (and impossible) "what if" and then seek to draft a provision to deal with it.

However, too much specificity (might be an abuse of a statistical defintion this) has negative consequences. It is next to impossible to draft for every eventuality. The more specific your drafting ("the more you tighten your grip") the greater the risk that events not specifically mentioned will not get caught ("the more star systems will slip through your fingers").

So not only will you have spent a lot of time and cost on legislating for events that will probably never happen, you have quite possibly reduced the chances of dealing properly with the unpredictable one that does.

Identify the real commercial and legal risks (not the distant "what ifs") and draft specifically for those. The rest cover with more general drafting; it's cheaper, more efficient and better for your client in the long run.

Beware the dark side of the law and may the force be with you.

My computer might have broadband but my brain is still on dial-up

I was chatting with a partner of mine last week who has been in practice for nearly 40 years. He made a comment which highlights a major issue facing lawyers the world over:

"Whilst the speed with which we can send and receive documents has increased thanks to the internet, the speed with which we can review them has not."

We now live in an instant society. Everything is "on-demand". Modern technology has allowed us to perform many more tasks in a much shorter space of time. Financial calculations which took hours 30 years' ago can now be done in seconds. However, one thing has not changed - the human mind cannot go through its thought processes any quicker. Despite what the Government might want us to believe, more A's at A-Levels does not mean the next generation are all super-computers.
However, it is a fact of life that clients expect that a document can be 'turned' quicker now than 30 years' ago. True, we get it quicker. True we can print it out quicker. True it is easier to create mark-ups and identify changes. However these are all time saving factors in terms of delivery and readability. It still takes the same length of time to read, digest and consider the implications of any given clause or amendment.
Modern technology is also one of the causes of another factor which affects documents of today - length. @LegalBizzle has often tweeted regarding the "mega-contract" which in his line of work does not surprise me. But even in Real Estate, contracts continue to get longer. 30 years ago the average lease was probably 10 or 15 pages maximum. Today it would be 50 pages minimum. Just reading it takes 5 times longer, never mind amending it.
So where do we go from here? Well forget about asking clients to relax.  They are under pressure internally to get the deal done and, frankly, they pay us to transact the deal for them.  But there are things that lawyers can do for themselves and here are my suggestions:

• Use plain english - too many contracts I come across continue to use complex terms for no reason other than to appear intelligent.  However, this inevitably increases the review time and the negotiation time.  Why are we so scared of using language which is intelligible to the average man on the street?
• Use punctuation - I cannot believe that there are still lawyers who believe that not using punctuation assists in interpretation.  Not using punctuation results in multiple re-reads of the same paragraph simply to grasp what it is trying to say.
• Use short sentences - there are no prizes for drafting the longest sentence in the world.  Each sentence should be trying to say one thing.  If it has to say more than one thing at least break it down using sub-clauses so that the drafting visually reflects the thought process.  This also means that any amendment can be more easily understood.
• Be collaborative - as per my previous post on the role of a transactional lawyer, our clients are paying us to get the deal done.  In most cases they view the other party as a partner in some shape or form and their aim is not to shaft them.  Therefore, drafting should be balanced and not seek to screw the other side.  If you adopt an unbalanced approach the other side will probably (i) spot the try-on anyway and (ii) adopt a similar approach resulting in entrenchment and the deal stalling.  A balanced draft is not a sign of weakness but rather a sign of comprehension and commercial nous.

We cannot turn the clock back to a time before everything became such a rush and we are not going to be able to act as if the time pressure does not exist.  So, if we are to avoid all checking in to the nearest facility for stress affected lawyers, we must find ways to reduce the time in negotiating documents.  There will always be negotiation but we should make sure that it is as straight forward and painless as possible.

The client-lawyer relationship - can we fix it?

This blog really continues a debate that was started by @legalbizzle and @legalbrat a few weeks ago.  There are a number of postings relevant which you might consider pre-course material including:

• What lawyers can learn from call centres by Legal Bizzle
• It's not about the biscuits by Legal Bizzle
• It's client care but not as we know it by Legal Brat

In truth this is not a new debate, in fact it is not really a debate.  It is obvious that relationships can only exist between individuals and not between corporate entities - a relationship is not a contractual bond it is an emotional bond and entities do not have emotions.  A CEO or Group Counsel might say "We use BLP for our Real Estate work" and it might be true that Berwin Leighton Paisner have been appointed but the reason for that appointment will be due to that same CEO/Group Counsel having a relationship with individuals at BLP.  As a firm we cannot take the relationship for granted and as with any relationship it must be constantly worked on.

I have often pondered why it is that people can be in a relationship for years and even living together but then get divorced relatively quickly after getting married.  I believe the answer is obvious - prior to getting married both parties worked at the relationship to maintain it.  Both realised that in order for the relationship to be sustained it required effort and sacrifice on both sides.  However, once the couple are married they fall into the trap of thinking that the marriage certificate is proof of their commitment and no more effort to maintain the relationship is required.  However, the opposite is clearly true, the marriage is simply a new phase to the relationship and the parties must still go to great effort and make the same sacrifices if the marriage and thus the relationship is to survive.

Leaving the sphere of marriage counselling and returning to client-lawyer relationships, it is clear both from the articles above and personal experience that the same is true.  During the courting phase lawyers will spend a large amount of time talking to and supposedly getting to know the prospective client.  Then once the appointment has been made many lawyers will simply stop with the "idle chatter" and only talk business.  It should hardly be surprising that the client, in such circumstances, wakes up in the morning and views his lawyer in a negative way.  His lawyer is not interested in helping him achieve his goals.  His lawyer's sole motivation is acquiring instructions for the purpose of making money.

So if it is so obvious why are so many lawyers bad at it?

The answer to this is not so clear but I believe it may lie partially in the traits of the average lawyer and partially in the billable hours tradition that has built up.

In terms of the billable hours tradition I think that this is something which has been mentioned before.  From a young age it is impressed upon the junior lawyer the importance of the billable hour.  That is how firms have traditionally made money.  Your associate's salary is a fixed annual sum but the more billable hours you can get out of them the more profit you will make.  The problem is that in the associates' minds this translates into anything which is not billable as being evil.  Accordingly, said associates do not want to "waste" their time in "idle chit chat" with clients when they could be billing another client.  By the time the associate has reached a more senior level the habit is embedded and breaking that habit is significantly harder and requires effort.

Therefore, this part of the problem is systematic and within the power of the profession to address by better recognition of the non-billable hour at the most junior level.  Certainly at BLP we actively encourage our junior associates to engage on a social basis with clients.  But we have not solved the problem because, at the end of the day, there continues to be the pressure to record time, leaving associates making bad cost-benefit analysis decisions and probably not investing sufficient time in building the relationship.  But it is a start which will hopefully better equip our associates as they move towards partnership or into in-house roles.

The traits issue is less tangible but I want to throw it out there as a thought for discussion.  I just wonder whether law attracts a certain type of individual who is not as comfortable with developing personal relationships with multiple contacts.  As with everything there are exceptions to the rule and these exceptions are found in the rainmakers.  Whilst some of what these rainmakers are good at can be learnt, their success is due in a large part to their personal character traits.  Whilst we might be able to provide training and alter some bad habits fundamentally it is unlikely we can ever change (nor do I believe we would want to) a person's character to such a large degree.  If that is correct then there may be an argument that whilst small improvements will be made in client-lawyer relationships, fundamentally if you expect all the lawyers to suddenly become the best relationship people around it just ain't going to happen. 

What category do I fall into?  I suggest you ask my clients.

It's Tuesday: I'm a lawyer, get me outta here!

This blog was initiated by the article appearing in The Lawyer on-line today entitled: Lawyers can't handle Tuesdays, survey reveals.  The "research" in question was commissioned by Michael Page International and its results are summed up by their marketing director Eamon Collins as follows:

"This research has told us that 10am on a Tuesday is the most stressful time of the working week, and it isn't a coincidence that this is also when traffic to our website peaks."

Gimme a break.  The article does not mention who carried out the research or how but it is likely to be as scientific as the intendance research ranking law firms by Twitter use which gave rise to huge debate  Let's accept that the research could actually come to the conclusion that 10am on a Tuesday is the most stressful time of the working week.  Does Michael Page really expect us to believe that the first thing a stressed out lawyer does is say:

"F*&k this, I am out of here.  Let's see what Michael Page has on offer this week".

What a pile of dog poo (sorry still can't bring myself to swear on-line).

What's worse is that this kind of marketing dressed up as serious research does immense damage by belittling what is a very real issue in law firms today (and I suspect in the in-house world too).  Lawyers are under incredible stress for all different reasons.  All this article does is make a mockery of the issue by giving Michael Page cheap advertising space.

So here is an attempt at a more helpful review of stress in the legal world today; its causes and perhaps a stress reliever or two for all you stressed out lawyers out there.

So here are some causes I have noted in my long and illustrious career to date :

1. Technology - yes we all thought that technology would make our lives easier but the incessant stream of information, e-mails, red-lines, twitter, IMs, iPhones, internet browsing actually add up to an impossible mix that our brains do not have the time to digest.  Top of my list is e-mail.  In the old days lawyers and clients communicated by letter (or fax if really urgent).  It was recognised that it took time for letters to arrive and letters to be sent as well as time for documents to be typed.  However, the advent of immediate correspondence has led everyone to believe that if a question is asked by e-mail at the push of a button then the answer should come back at the push of a button.  We might use computers to communicate but the answers still come from a human being who may need to analyse, annotate, review and meditate before responding.
2. Lack of support/supervision - this means poor management by us, partners and senior associates of those we instruct further down the seniority chain.  It is right that associates should not need constant hand holding.  On the other hand giving over the instructions is only half the job.  Junior fee earners (and senior ones) need to be provided with proper supervision and support if they are to fulfil their potential.  They need to be pushed but not off the top of a skyscraper!
3. Poor client management - how easy it is to complain regarding unreasonable client demands but is that really the client's fault?  The client is buying a service.  Whilst it would be nice to think that when asked the question "when do you want it for" the client will respond with an answer relating to when he needs it, that was not the question asked.  Perhaps the question we should be asking the client is "how does this piece of work fit in with your deliverables at so that I can ensure that we can revert in a timescale that enables you to meet your deadlines?"
4. Poor working habits - also known as "rabbit in the headlights" syndrome.  This is the person who faced with a number of different tasks keeps on jumping from one to the next without actually finishing any of them and at the end of the day feels they have accomplished nothing (which is actually true).

And now for some self-help remedies (one for each issue):

1. Just because you get an e-mail does not mean you need to respond to it immediately.  Turn off that annoying "ding" and the pop-up window.  Clients know that you are not necessarily at your desk and that sometimes you need to think about things.  If something really is urgent they will pick up the phone and call you so if it rings you better answer it.  If it is not urgent ask the client if you can call them back.  Tell them you are just in the middle of something and want to be able to give them your full attention which will be easier once you have finished what you are doing.  Make sure you say when that will be.
2. If you feel unsupervised then say something.  Don't send an e-mail to someone asking them to look at a document.  Get off your backside, print it out and take it in.  9 times out of 10 the person you go to see will be happy to help and you will learn far more.  Contrary to popular belief partners do not eat their young (I believe that's even true in the "eat what you kill" firms).
3. Manage your client's expectations - well this just goes back to the whole client care debate.  When you get a new instruction how about you pick up the phone to the client and talk it through with them.  Understand what their drivers are; what internal pressures they are under.  Even if this does not change the timetable you will develop a much better relationship with the client and the better the relationship the better the chance of sensible timetables being issued in the first place.
4. Sorry but all I can say to this is "Get a grip".  You simply need to force yourself to complete one task at a time.  Look at what you have to do and ask which is the most Urgent and Important.  That is what you do first and you finish it before you look at your e-mails or any other task.  If two tasks rank equally then just pick one; just go with your gut.

Well that's it for the tips.  One last word on stress.  The fact is that doing what we do for the people we do it for stress is a fact of the job.  You can take positive steps to avoid it but there will always be times when you are under stress.  But at the end of the day it is only a job.  Don't let it ruin your life.

The client care debate - an out houser's view.

Let's get one thing straight.  This is meant to be controversial, it is meant to stimulate debate.

There have been a number of excellent posts in the last couple of weeks by stalwarts of the in-house blogging circuit on the provision of legal services by law firms and lawyers.  Specific examples include:

• "It's client care but not as we know it" by @legalbrat
• "Crossing a (red)line" and "It's not about the biscuits" by @legalbizzle

These blogs are excellent and provide a singularly valuable resource to the out house lawyer who wants to gain a better understanding of how in-house lawyers (and by extension) clients view their legal advisors as well as the do's and don'ts likely to result in praise or a swift disinstruction.  My message to them and all in-house lawyers who blog on these subjects is "keep it up".

Clearly one of the purposes of the above blogs is to encourage debate with the providers of legal services, Big Firm LLP.  And yet, for example, @legalbrat is failing miserably to get any response from any out house blogger to his challenge despite it being featured in @legal_week (see here).

In fact, out house blogs generally fall into the following categories:

• recent legal developments/statutes (yawn!)
• anonymised (amusing) anecdotes of a day in our life (some of which are a joy to read - @magiccircleminx being one such example - but hardly are just there for enjoyment)
• random musings on some news with possibly a connection to the law (does anyone really care about my opinion on interest rates?)

However, what I have failed to find is a single blog by an out houser which considers the challenges facing private practice firms in their provision of legal services to the world and ways these challenges could be addressed.  Why is this?

A number of possible answers spring to mind:

• The "It's a wonderful world" answer - There are no challenges.  Life is just about perfect and we happily are able always to meet if not exceed our client's expectations; associates are completely satisfied and would work for free with no job expectations; our fees are always agreed because we unerringly get it right and our clients love us to bits and gleefully pay all bills because they see the value ooze out of every penny like a BOG10F would in a supermarket.
• The "We haven't a clue" answer - what do lawyers know about addressing the challenges?  Of course there are challenges but we went to law school not business school and so have not got a clue how these challenges should be addressed.  All we can do is employ expensive consultants to tell us the same thing they have told every other firm they have provided consultancy services to: cost-cut, outsource, commoditise, value-add; show the client you love them.
• The "We are afraid of corporate espionage" answer - Behind the scenes we are working very hard at changing the way we do business and work with our clients.  When we think we have discovered the secret then we will tell the world with a front page splash all over @thelawyer or @legal_week but until then we daren't breath a word because one of our competitors might latch on to the idea and steal it from us and of course they could not possibly be considering the same things we are.
• The "Bury our head in the sand" answer - we are aware of the challenges but hope that if we wait long enough either they will go away or we will retire before they are big enough to kill us. 
• The "Too scared to engage" answer - we have some ideas and would really like to engage with our clients to discuss them but we are afraid that in order for our clients to work with us on developing those ideas we would need to have a full and frank discussion regarding our feelings as well as theirs.  They might not like some of what we say and we can't afford to upset them.

In truth the answer is likely to be a bit of all of the above.  Many law firms are engaging with their clients on a one-to-one basis and in doing so are improving the level of client care and client satisfaction.  But even in these closed discussions one has to wonder how much is raised of what a law firm expects from its clients and focuses almost exclusively on how the law firm can improve the service it gives to the client.

Maybe I am naive but in my view the law firm-client relationship should be symbiotic as opposed to parasitic.  As such, would we (clients and firms) not be significantly better off if we could actually openly talk to each other about what we both like and dislike about each other; about what we each could do to make the other's life easier and more fulfilled.  I know that my firm's success is intrinsically linked to my clients' success but do my clients think that their success is in any way dependant on my firm's success?  I doubt it and yet I believe it is.  A successful firm, full of fulfilled lawyers who feel appreciated for the work that they do (and I do not mean in pure financial terms) will provide a much better service.

This kind of fulfilled relationship requires openness on both sides.  But how can we ever expect our clients to help us achieve such a level if we do not even tell them what we genuinely want from them.  How it would be nice to be thanked for working through the night and cancelling dinner with your wife.  How, having done the deal and invoicing at the agreed fee it would be nice if the bill was paid without any need to chase.  How, fundamentally we accept and appreciate that we are service providers who must always be at their best but that it would be nice if the service recipients recognised that this is not always easy.

At the moment it seems to me that all the input is from the in-house lawyer setting out what they want with no input from the out-house lawyer setting out his stall.  We tell the client what they want to hear and listen to what they have to say about the services we provide.  But do we ever tell them how they could change the way they work to help us?  So my challenge to my fellow out housers is let's engage with our clients in a more meaningful manner.  They do not have all the answers and we are not solely responsible for all that is ill with the client-lawyer relationship.  Do this and then maybe together we will reach new heights in the provision of legal services.

Then again, maybe not. . .