Carolyn Herzog, EMEA Regional Counsel, Symantec Corporation, UK
As budgets shrink and all legal departments are re-evaluating resources, in-house counsel are presented with new and unique challenges in connecting with our business partners and ensuring clear alignment and support of the legal value-add proposition. Now, more than ever, legal departments are faced with proving value beyond the old school concept of merely offering legal advice. We are asked to provide metrics, to demonstrate cost savings and influence on revenue, to explain risk in a more digestible and more immediately exercisable manner. We hire the "super lawyer," but are restricted in offering all the glories of the good times - gone are the stock incentives, the rapid growth in business with corresponding career development; annual raises or bonus incentives are limited or non-existent, and we must be creative in encouraging cost-effective training and development.
Today, we must thoroughly understand and be able define our role, agree and communicate a shared legal vision to demonstrate legal collaboration and unity, focus on the priority objectives of the business and let go the small stuff. We must engage outside counsel with new ideas about the relationship value, and do it all in a manner that makes our CEOs say "Wow! You-did-that-so-fast-I-didn't-see-you-move."
1. Understand How Value is Defined.
In order to define and defend the value of the legal department or any individual legal function, leaders need to understand first how value is defined by our business partners, how value is measured, and finally, how value is articulated and communicated. In turn, we need to be able to articulate our expertise, our ability to lead, our commercial know how, and our service commitment. Holding primary responsibility for legal risk management, we take a leadership role in limiting the potential for damages, avoiding litigation, and overseeing compliance practices. Risk management is an increasingly complex function to fulfil. It requires specialist knowledge and subject-matter expertise, the ability to provide concise legal advice as well as demonstration of legal acumen. Current and relevant knowledge of the business is required, as well as the ability to provide topical advice without over-lawyering of the issues. We must inspire confidence in our opinions, through transparency in the deductive process and drawing of conclusions, and consistently reliable operational management.
2. Know Your Business and Associated Risks.
In-house counsel are quite comfortable with the understanding that we are employees of the company (our sole client), and part of a broader team of non-legal professionals. Sometimes, however, our business colleagues require a gentle reminder that our role is to enable the business in a legally compliant manner and with an appropriately risk-tolerant view. In other words, we are neither the rubber stamp department nor the department of NO, two easy clichés to which we fall prey. Risk tolerance requires a deep understanding of the business objectives, the competitive landscape, and both business and legal trends (e.g., what is the standard approach in the market? Have there been any legal cases or judgments that might elevate the risk?). In order to provide timely and appropriate advice that is contextually accurate and thorough in scope, to prove our worth and to simply get things done, we need to understand the business's objectives and we need to know who to go to at all stakeholder levels. By knowing the inner workings of our company -- not only what we tell people on the street about what we do, but also how we actually do it -- in-house counsel are able to differentiate the value that we provide over external counsel. We can make judgment calls on business scenarios, rather than merely offering traditional legal advice, and we can do it all faster and cheaper than in an outsourced legal context.
3. "Enable" the Business.
Enabling the Business means that we must provide solutions-based counseling and act as a commercial advisor. These are great catch phrases, but truly being seen as the kind of legal resource that has a risk profile aligned to the company objectives (presuming, naturally that this is about commercial risk and not illegal actions) is not a reputation that is easily won in most businesses. To gain this position as a trusted advisor requires not only overcoming a myriad of bad lawyer jokes and possibly historical experiences that have scarred your current clients, but also a modern organizational agility that offers clear and digestible guidance, frequent repetition on high risk areas, attendance at key stakeholder meetings that offer opportunities for feedback, and tools that allow business partners to think for themselves before engaging legal so that counsel is contacted with better, more actionable, information.
4. Use Relevant Business Language.
In looking to improve communication generally and to be able to communicate demonstrable value, it's important to use relevant business language to convey both your understanding of the business and the legal and business risk implications of taking or failing to take certain actions. We cannot presume that general reputation and effective risk management is a sufficient indicator that this value is appreciated. Rather, we need to consider the use of metrics (e.g., how many patents filed, how many cases settled, transactional records indicating inbound revenue to the company) wherever possible and set goals to those metrics to identify our ability to forward think and demonstrate measurable improvements over time.
In a global business in particular, legal counsel must navigate not only the complexities of a multi-jurisdictional approach, but also the political environment and the influencers that will weigh on every decision. Consider the influence of headquarters - is strategy set by a functional team and expected to be implemented regionally? Is there a transparent view into a common vision or do business units drive decisions with relative autonomy? As in-house counsel, we often play the role of the proverbial spider in the middle of the web - we see how people and issues connect. And, while the legal community is usually able to clearly communicate a point, we must learn in the in-house environment to articulate points succinctly, in plain language and, where multiple languages and cultures are involved, in a manner that is culturally sensitive and leaves as little as possible open to interpretation. Avoid legalese at all costs and address conflict with tact, focusing on the issues, not the people.
Focusing on issues often means that we are put in the position of needing to break down silos. Avoid the easy pitfalls by being constantly prepared to change assumptions and to challenge stereotypes. In the global environment, find constructive ways to connect the local business to the global objectives and establish mutual goals and synergetic approaches.
5. Implement Effective Training and "Self Help" Resources.
In addition to understanding the business, we need to be active educators through publication of key policies and processes (with substance and intent and not so voluminous that they are inevitably ignored), participation in key strategy discussions, and training, training, training. Let's face it, lawyers have a tendency to use PowerPoint as a weapon to destroy all hope of creative thinking and actual retention of knowledge. We select a variety of legally potent terms and dare our audience to stay awake. If we want our internal clients to retain important messages, we have to think of better ways to share information. This means less words and more concepts in our presentations, and participating in meetings where we can share sound-bites - concise messages that we can offer frequently and quickly. Also applicable here is the buzz word of the under-resourced: self help. I'm not talking about a serene guru who will help us find our true purpose in life, but easy-to-find, easy-to-understand instructions on repetitive work that is low in risk. By packaging this advice for our clients in such a way that they can easily access it themselves, provided the clients understand and follow the advice, they can avoid coming to the legal department with every legal question. Thus, legal departments can eliminate the repetitive, low-risk and high-volume work that can take up so much of our days, leaving us to focus on higher-risk issues and more tools to enable the business.
6. Ensure Visibility and Accessibility.
I did a survey recently, asking senior business leaders basic questions to ensure alignment of my team. Among other questions, I asked if we were doing the right work, if there were areas of focus that we should engage less on or other areas that may require greater attention. One of the responding clients replied "I don't know what you do now." Getting down to basics - if people don't know who you are, and don't know what you do, they won't know how or when to ask you for help. And if business people don't know who to go to, or even that they might need some help, they will make mistakes that require clean up. Getting in before it's too late helps in-house counsel avoid unnecessary clean-up work, so we can focus our time on more productive and proactive opportunities.
Be accessible to your clients and cultivate trust. This means that you reassure clients that your goal is to enable and to move the ball forward. Think about how your clients will perceive you as a team player, as a business partner who can explain the legal implications in a manner that steers the business towards viable options. This sometimes means sharing our understanding that compliance with legal requirements is not necessarily the most intuitive nor practical method of getting things done. It also means that, while we are developing trust, we know when to draw the line. Trust does not come without integrity and a rubber stamp is not a demonstrable measure of value.
7. Manage Up, Out, and Down.
A legal team is always more effective when it is engaged, and a trusting relationship and a culture of compliance and collaboration enable everyone to be more effective in their role. Leaders in law departments need to be able to demonstrate to their clients that their role is to provide legal solutions for the business, while also helping business owners to take responsibility for their individual and group roles in managing the practice of compliance. Measuring value through key metrics and using them to communicate alignment of the legal department's role with the business objectives can be a very effective way to manage expectations across all functions.
The most frequently used ways to measure value include solicitation of client feedback, tracking response times, and benchmarking against the cost of external lawyers and company revenues. It is increasingly more important for in-house counsel to monitor and control costs and to offer both concrete and estimated cost savings to the business. In addition, to win the confidence of the business, in-house counsel can use low-level risks as opportunities for proactive training and engagement in self help, thus driving greater efficiency and establishing levels of mutual trust between clients and lawyers, sharing responsibility for the legal management of business risks.
8. Support Your Staff.
No business leader can be successful without a forward-thinking, creative, intelligent, and fully engaged team. Ironically, we realize more and more how few managers are equipped with the tools and mindset to be great leaders. As a representative of the Office of the General Counsel, the first thing you must do is instill both a sense of pride and humility in your staff. Humility? Is this a word that we have ever historically associated with the legal profession? Of course, it is important to be astute and to have a superior grasp on the business and legal principles that are required to do our job. But, we must also be accessible, and open to discussion and understanding of others' perspectives. As legal counsel become more engaged with and aligned to the objectives of their business partners, we increase our ability to gain important insight and to be pro-active partners in providing legal solutions. Motivating your staff to become integrated with the business can increase their sense of ownership and pride in ensuring it's smooth operation. Delegation is an art that, in the right context, will promote individual thought and leadership, while supporting a cohesive team approach.
In addition to this important method of delegation, managers must also think about how their staff is developed, with on-the-job experience, opportunities for cross-functional engagement, effective use of external resources (such as ACC), and key skills training in both substantive and soft-skilled areas. Notably, the development of metrics and opportunities to train as well as be trained are key mechanisms for staff development. With this business integration and focus on development, managers should also consider how new ideas, company know-how, best practices and legal knowledge are shared and retained. Use of legal wikis, share points, and intranet sites are becoming increasingly important in these connections.
9. Get the Best from Your Outside Counsel.
It is clear in the current economy that law firms are also re-evaluating their value proposition and in-house counsel play a vital role in reshaping the role of external counsel. External counsel should be a partner to in-house counsel similar to the way in-house counsel are partner to the business. We don't want lengthy memoranda, but practical business solutions. This means that outside counsel should understand our business, should help us in making risk assessments and in thinking ahead not only about legal trends, but industry trends that can have a legal impact, including signs of growth or change in the business, effects of mergers and acquisitions, and opportunities and pitfalls that come with market changes.
With the value-add proposition, outside counsel should contemplate useful training opportunities, newsletters and regular, digestible updates. Outside counsel should also be proactive and should offer to share generic summaries of advice that proved useful for similarly situated clients. All of this, naturally, at no additional charge. And, speaking of charges, outside counsel can help themselves and their clients by considering the potential needs of the next year and assisting in budget planning. Fixed fees and fee structures can be mutually beneficial tools to help in-house counsel plan and to establish the kind of relationship where in-house and external counsel are both thinking forward to best support the business.
10. Get Out There and Network.
Understanding the business, effectively managing out, up, and down, supporting our staff, and productively engaging outside counsel are all key elements in speaking the language of our business partners. But to truly round out our practice and to establish ourselves as trusted advisors, we also need to be connected in our community. In-house counsel do not have the resources that external counsel have to travel to conferences and to fly around for business development opportunities. We must be both targeted and creative in our networking to ensure that we are connecting to current trends, gaining access to best-practices in law department management, and sharing up-to-date information on how our industry is responding to changes in law or enforcement. Furthermore, we are more efficient and cost-effective in our practice if we learn from what others have done before. While it is never easy to make the time, staying connected through online tools, listserves, and local meetings offers valuable experience that we would miss out on if we remained only internally focused.