Thinking about relevant and effective law departments

Sunday, March 28, 2021

Useless Advice Is Like No Advice

As a puppy associate at a major law firm, I was sent to California to work on some discovery from a third party to the litigation.  While there, I was able to have dinner with a friend from law school who had moved back home to become one of the early lawyers for a small company called Yahoo.  The dinner conversation turned to our respective jobs.  “You big firm lawyers drive me crazy,” he said.  “I ask for help on an issue and I get a thirty-page memorandum back telling me ‘on the one hand,’ ‘on the other hand’, and ‘on the third hand’.  That doesn’t get me any closer to helping my clients inside the company make a decision.”

What my friend was really saying is that lawyers must be able to evaluate risk, prioritize risk, and help the client in a way that would permit him to make a decision.  He wanted his outside counsel to say something like the following.

“We’ve looked to your issue.  There are three risks we see.  The first one has a 10 percent chance of being an issue and you can probably ignore it.  The second one has a 50 percent chance, and you need to decide whether you can tolerate that risk.  The third issue is the one we need to focus on because it has an 80 percent chance of arising.”  This example is admittedly simple.  The response might also evaluate the size of the risk in addition to the likelihood.  That issue with a 10 percent chance of arising might be a break the company issue and my friend would want to know that.

Nevertheless, the point is this.  To provide quality legal advice timely, the legal advice must be actionable by the client.  Otherwise, the client is no closer to decisions that move the business along.

Recently in response to one of my blogs, a follower sent me a note. 

“I remember a few years ago when you emphasized the speed of the advice. As a frequent user of in house legal advice, that is still important. My recent frustration has been around actionable and executable advice. It seems that I am often explaining that our options are A or B due to a system limitations or [another] constraint, and the only advice I get is we need to do C.  Similarly, there is a moving goalpost phenomenon in which the better the data I present gets or the larger sample size I gather my law . . . colleagues raise the requirements. They seemingly ignore that we have operated with far weaker or smaller sample sized for decades. It almost disincentives progress on my end.“  

Yep, advice that is not in-line with the business constraints is another example of advice that is neither actionable nor executable by the business.  In effect, this person has experienced his or her law department saying “no” in a lot of words (when no is not the only answer) rather than working to an actionable solution.  It is a disincentive to his or her business progress, and it may well be a disincentive to asking law questions in the future.

Need help coaching your legal team to think like the business and avoid useless advice?  Let’s talk.