Ten tips to secure the best legal advice
- 08 June, 2008 22:00
In bridging the gap between technology and business, the CIO is often the primary contact with external legal providers — particularly on large outsourcing or procurement deals. Choosing the right lawyer and properly managing that relationship can help a CIO achieve his or her desired business outcomes. As an external legal provider, I have learned some approaches clients can take to get the best value for money out of their legal services. The following are my top 10 tips for managing relationships with external legal providers.
- Find a lawyer who is a business enabler. Sometimes business people hesitate to contact lawyers because they think they will put up road blocks to completing a good commercial deal. It is true that a large part of any commercial lawyer’s job is to identify risks and help a client mitigate those risks. However, once the risks are identified and solutions for mitigating them are canvassed and explained, a commercially-minded lawyer will allow the client to make a decision and will follow the client’s instructions. In these circumstances, a lawyer can often help pave the way to a smoother, quicker outcome for the client.
How do you know if your lawyer is going to help or hinder you in making your deal? When choosing your lawyer for any particular matter, it may help to get recommendations from other businesses in the industry. It is also important to keep the lines of communication open to help ensure your expectations are clear.
- Get your lawyer involved early. It may sound self-serving, but the truth is that using legal services early can cut down on frustration (and expense) down the track. This is especially true if you are going through a formal procurement process. RFPs are legal documents in their own right and can cause problems if they are not drafted correctly. In addition, it often makes sense to attach to the RFP the agreement that the bidding parties will need to agree to — in order to avoid a drawn out negotiation after the winning bidder is identified.
Likewise, bidders themselves should have their lawyers review the legal terms of the RFP as well as any attached agreement. Some RFPs state that the attached agreement will not be negotiated after the winning bid is selected, so it is important to mark any required changes to the agreement when submitting the bid. If you call your lawyer after you submit your bid, there may be very little your lawyer can do for you.
- Give clear instructions. As with any relationship, good communication is the key to success. Tell your lawyer what you expect of them. Do you want them to negotiate the deal for you? Do you want to use them as a back-office sounding board? Do you just want them to prepare a first draft of documentation that you can run with? When do you need the advice or document turned around? Do you just want a high-level overview or a really detailed analysis and discussion? Giving clear instructions will mean that the lawyer is able to deliver advice and documents that suit your requirements. Clear instructions also help your lawyer get a better sense of the work required in advance. (Will they be in negotiations for numerous days, or will they simply need to be available to answer questions by email?) Having this information upfront will mean your lawyer can help ensure you get what you need, while managing competing work priorities. The best way to ensure your instructions are clear is to set them out in writing or to discuss them with your lawyer, then ask the lawyer to confirm the instructions in writing.
- Let them get to know your business. Tell your lawyer about your business. Let them visit your premises. If they don’t offer to spend some time learning about your business, ask them to. A lawyer will do a better job for you if they understand how your business works, what business issues keep you awake at night and how you approach solving business issues. Most lawyers will not charge you to spend a few hours with you getting to know your business in the early stages of the relationship, but it pays to ask them in advance.
- Explain key business drivers. Explaining your key business drivers goes hand in hand with giving clear instructions and educating your lawyers about your business. A lawyer’s advice will be much clearer if they are aware of what you are trying to achieve. For example, a lawyer will draft an agreement differently if the key business driver is establishing a long-term cooperative engagement rather than achieving the lowest price for the lowest risk.
- Have them read technical documents. I often get puzzled looks when I ask to read statements of work, technical specifications and other technical documentation. The truth is that those documents will usually form part of a commercial agreement and are critical to how the agreement will be interpreted. If there is ever a dispute over the technical documentation, experts may be brought in to interpret the technical elements, but there is often a lot of non-technical writing in these documents as well that can give rise to disputes. A lawyer will read the technical documentation with a fresh perspective and will be able to advise you if it clearly sets out the obligations of the parties and whether, in the worst case scenario, a judge in court might be able to read and understand the document in the event of a dispute.
- Understand their billing methodology. Lawyers have an unfair reputation for billing every minute of the day. If you find yourself turning down a casual lunch with your lawyer because you think they may bill you for it, perhaps it is time to ask them about their billing methodology. Don’t be afraid to ask questions about billing — it is all part of the business relationship. Here are some questions you may wish to ask:
- How and when you will be billed? Most lawyers charge on an hourly basis and send out invoices monthly. However, some lawyers will agree to a fixed fee for given projects or agree to more innovative billing solutions.
- Will they bill you for every phone conversation, or only start to bill you when you instruct them on a file?
- Will your lawyer use junior lawyers where appropriate to help reduce the fees?
- What are the hourly rates of the people working on your matter?
- Can an estimate be provided and, if so, can they advise you if it looks like they will exceed the estimate?
- Don’t cry wolf. Lawyers can get frustrated by a client whose work is always urgent. This sometimes means a client is disorganised — doing their own work at the eleventh hour and expecting the lawyer will be there around the clock to provide last-minute advice. Sometimes it means that the client just likes getting people hopping. Either way, it puts you in a bad position when something suddenly truly is unavoidably urgent — if you cry wolf too many times, your lawyer may be less likely to take the crisis seriously.
- Make the lawyer part of your team. A lawyer who is an integral part of the team will do a better job. They will become more efficient and useful over time because they will have a good understanding of your business, your expectations, your desired outcomes and solutions that might be acceptable to you.
Being part of the team is not only important in general terms, but also on individual engagements. For example, if you are using a lawyer to help you with negotiations, tell them if you are making deals away from the negotiation table. It can be very effective for the business people to step away from the bargaining table without lawyers present and resolve issues. However, if you don’t tell your lawyer you are making these deals, he or she may be caught off guard in negotiations and less able to reflect your position.
- Deal with lawyers you like. If you find a lawyer that you enjoy working with, keep using them. Among other things, you are much more likely to communicate well with him or her. Once the relationship is established though, don’t forget to continue to manage it. Just because you have previously given clear instructions, explained key business drivers and had them visit your business, doesn’t mean that you shouldn’t bring these topics up again.
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