Collaboration” as applied to lawyers is like “student athlete” to big-time college football and basketball players: more feel-good myth than reality. Because lawyers—like elite athletes—have been taught that competition yields winners and losers; theirs is a zero sum game. Yes, there are teams/firms, and one is encouraged to be a good teammate/colleague, but star ballers become pros just as top lawyers are paid like them.
But even in today’s big-money, uber competitive (pun intended) world, collaboration is important—even for lawyers. In fact, it might not be a bad idea for law schools to emphasize the importance of collaboration in their curricula as well as to include it in practicum training. Legal service providers, likewise, would be wise to evaluate a candidate’s (and that includes laterals) willingness to collaborate as a criterion for employment. Why is collaboration important for lawyers and how, if at all, does it figure in the delivery of legal services?
Let’s Return to what we were Taught About Being a Lawyer
Traditional legal training—both in law school and practice—reinforced the adversarial nature of the legal process. This indoctrination was borne from an ethos that law is organized combat, a process that yields winners and losers. Of course, this flies in the face of the reality of practice because: (1) law’s adversarial process involves give and take –-a counterpoise that is essentially collaborative because both sides adhere to the same rules; (2) even in litigation, the most “combative” legal practice area, 98% of cases settle prior to trial (which begs the question why more cases are not resolved much earlier in the process?); (3) likewise, transactions may be actively negotiated by opposing sides; however, in the end, many are ratified which means that collaboration (and compromise) has occurred; and (4) the Rules of Civil Procedure, The Rules of Evidence, and the legion of other guardrails proscribing the way lawyers engage in their craft implicitly call for adherence, deference, and respect for the way the game is played—this requires a collaborative effort. Is this a semantic fusing of the words “adversarial” and “collaborative”? No, it is more than that.
Lawyers are imbued with a notion that collaboration is for others and that they are intended to “represent zealously” rather than to “work collaboratively” to advance client interest. Could this be driven by economic self-interest and, more particularly, by the billable hour? Then there is the “silo” effect created by origination and its seminal role in partner compensation. The rainmaker, like the star quarterback, rakes in the biggest bucks. That certainly plays a role. Today, clients assign value to matters, and that means a relation between cost and result. If, for example, a matter has relatively low value to a client (as many do), the lawyer/law firm must work creatively—collaboratively—both internally as well as with the adverse party– to resolve that matter quickly and within the parameters of an acceptable result as outlined by the client. That is not always possible, but the cost: value divide has placed a greater emphasis upon efficiency, transparency, technology, and collaboration.
Collaboration in the Post -2008 Legal Marketplace
Can we stipulate that 2008 provides a Maginot Line for the delivery of legal services? True, disaggregation (“unbundling”) of certain basic “legal” tasks was already well underway, technology had emerged as a key element in legal delivery, and globalization had certainly assumed great importance. But 2008’s global fiscal crisis and its fallout accelerated changes in the delivery of legal services creating, as some describe it, “the new normal”. The rules of the road for the delivery of legal services were open to remapping, as client expectations—demands—for greater value, transparency, and collaboration became mandatory, not precatory.
So what does “collaboration” mean in the context of the delivery of legal services? Let’s start with the way lawyers interact amongst themselves.
Legal specialization, the rapid growth of law firms—often through mergers and aggressive lateral hires– globalization, and internecine struggles over origination (or retention) of clients are challenges to firm collaboration. But client demands for greater value, manifested in increased competition among firms, AFA’s, RFP’s, and the ascendency of service providers who are “not engaged in the practice of law (but which perform tasks crucial to the delivery process) are putting pressure on firms to collaborate. This means many things including: (1) “right-tasking” work that stays in the firms (right level of expertise and experience for the task rather than “who has idle hands?” in assigning work); (2) retaining project managers; (3) working closely with IT specialists and other non-lawyers now embedded in firms and integral to the delivery of their services; (4) bringing on CFO’s and others trained in process management and possessing the requisite skills to manage the business of law. All this requires collaboration that most lawyers were neither trained to do, inclined to do, or ever imagined they had to do. Lawyers no longer work on an attorney island.
Collaboration also applies to the way law firms—as well as in-house legal departments—work with “other providers”. The traditional practice of an OGC assigning a matter to an outside firm that handles it start to finish has yielded to arrangements frequently involving several providers in the supply chain (LPO’s, e-Discovery and staffing companies, other firms, etc.). This requires collaboration, not to mention project and supply chain management. That collaboration has two key sub-parts: (1) risk mitigation/integration; and (2) budget adherence. The latter function can be undertaken either by an in-house department or by the primary outsourced law firm/lawyer. In either instance, collaboration is a key element in the successful representation of the client, both from a risk and cost perspective. This requires individuals equipped to manage it, possessing skills not presently taught in law schools or honed in law firms and in-house legal departments. Translation: until lawyers are trained in project and process management, they will frequently be overseen by non-lawyers. Those managers will not provide oversight for the legal work (lead lawyers will retain this function), but they will ensure that it is delivered efficiently, timely, transparently, on budget, and collaboratively.
Finally, collaboration increasingly involves cross-border (often, multi-border) matters as well working with “non-lawyers”. As client matters become more geographically dispersed, lawyers must collaborate with others operating in different sovereign nations with different legal standards, regulations, practice rules, languages, etc. Such collaboration has both a legal and cultural component. It is old hat to international businesses but far removed from the standard doctrinal courses that remain the mainstays of contemporary legal education as well as from traditional legal practice. Add to this that cross/multi-border matters often involve complex, inter-disciplinary issues that implicate other professional service areas and require a depth of business expertise. Result: lawyers must now collaborate with “non-lawyers” to handle these matters. This is very far removed from the insular, self-regulated world they grew up in. Inter-disciplinary practice (sanctioned in the UK, Australia, and other countries but not in the U.S. except in DC) demands collaboration. The irony is that U.S. lawyers are trained (and regulated) not to practice this way. This presents a regulatory and cultural challenge of great importance, especially as non-U.S. lawyers become increasingly adept at dealing with inter-disciplinary practice and honing their collaborative skills with those “non-lawyers” who, increasingly, are often stirring the drink. What does that mean? Law is only one element in an inter-disciplinary approach to solving complex business challenges. Whether or not lawyers lead that process, they must learn to collaborate.
Collaboration is much more than a politically correct word in legal parlance. It is a skill—if not a job requirement—for lawyers engaged in today’s increasingly global, inter-disciplinary, technologically enhanced legal delivery system. It is a term that has real teeth and multiple layers, each one of which relates materially to risk mitigation and cost (value). The student athlete may be an anachronistic myth, but the collaborative lawyer certainly is not.