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New Law: How investment in culture and people fosters innovation, collaboration and client service

Originally published on September 5, 2018 on Medium.

How does a law firm, known largely as a stagnant institution, nurture a culture of trust, openness, entrepreneurship, resilience and collaboration? Read on to learn how we are liberating ourselves — from the clock and the obligations of client matters — to focus on the meaningful and necessary work of building a durable culture, adding value to clients, and propagating positive social and environmental impact. Much of what we are practicing, as described below, is experimental and still evolving. This is our best effort to practice what we preach.

I had never given much thought to what it takes to assemble a top-flight team of values-aligned, talented, dedicated and compatible people although I’ve been fortunate and privileged to have both served on and helped assemble such teams. Our current team, assembled over the course of 1.5 years, is the most awesome (in every respect) amalgamation of backgrounds, passion, talent, and dedication that I have ever thought possible. To be honest, that this team has come together at all feels as much happenstance as serendipity. I know now, however, that there are carefully nurtured and delicate dynamics at play.

Our whole team recently came together in Boulder, Colorado for a 2-day retreat. We put up out-of-office memos, we turned off the phone and we informed clients and strategic partners that we would be inaccessible. For folks who still largely inhabit a world where “time is money,” this kind of planned down-time is relatively rare. Throughout our time together, we discovered we are rare in many respects.

I. Open Book Collaboration

Over the last year, I have been slowly opening up the books of the firm to our team. I started with a 2017 year-in-review. I went over our high-level financial performance, key metrics and qualitative aspects of our practices and performance. This was an opportunity to tell the arcing story of the firm’s history, the ebb and flow of various campaigns and big projects, and to use the financials as a canvas for telling the richer story. I was struck by the level of engagement and the curiosity of the team. For some, it was the first time they were ever exposed to financial statements at all, let alone those that affect their own employer.

I followed up this year-in-review with a set of 2018 projections. The most exhilarating part was when I…drumroll please…unveiled our “Moonshot.” By this point, three members of our team had only been with the firm for less than two months. How cool! To start a brand new job and to have a front-row seat to an organization’s launch point for the moon. To be clear, we were not a start-up at this point. This presentation took place around the 4-year anniversary of the firm. For most of that time, the firm had been just me and one or two part-time contract attorneys. I gave this presentation to six people. From one to six team members in less than one year. That’s a lot of growth!

Like most moonshot goals, we set ambitious goals for the next 4–5 years. I confessed not having a clear picture of what strategy or tactics we would employ to reach the moon. I only knew that the moonshot had to be inspiring, credible and imaginative. To my surprise, it was…for all six of us. That was one of the first real signs I had that we had the right people.

II. Collaborative Goal-setting, visioning and strategic planning

I more or less set the 2018 goals and strategy by fiat. The team was too nascent and without historical context to engage in collective planning. Plus, we were planning for a merger with the law practice of Linda Phillips. Thus, there were too many “unknown unknowns” to go through a strategic planning process for the 2018 fiscal year in early 2018.

So, with early 2018 strategy and goals presentation as a backdrop, we hit the ground running at the 2018 firm retreat. I gave a summary review of the 2018 year-to-date. I refreshed everyone’s memory of our 2020 moonshot and I presented a model for what the launch path would look like to achieve it. This gave the context everyone needed to fully and meaningfully contribute to a strategic plan.

We spent the better part of two days engaged in the profundity of firm culture, client screening, business development, vision and values and strategic planning. Some of us confessed our predisposition for “passion and purpose fatigue.” Some revealed a rejuvenated motivation to tackle big, thorny social and environmental issues, including climate change, economic inequality and social justice. Ultimately, we bonded over our shared sense of purpose and our commitment to our core values.

I have been deeply impressed and touched by the occasions and experiences that remind me of the timeliness of our core values. I developed those as a solo practitioner and entrepreneur, back in 2014, long before I knew 4 of my 5 fellow team members. We explicitly revisit and discuss these core values every week on our team huddle.

We re-committed to the moonshot goal. The energy of the retreat hardened our commitment to our team and to our purpose. To get there, we knew the challenge would be strategic planning in an environment where we, not unlike most businesses, are not fully in control of the key inputs. We divided up the pillars of our core business — Internal Relationships, Business Development, Client Service, Internal Systems (tech), Internal Systems (processes), and Inclusivity and Diversity — and assigned each component to one team member. We follow the Todoist model of accountability — every task must have a direct responsible individual if it is to be done.

For each strategic plan component, we are following a standard 1-page format that involves:

· A vision statement.

· 3–4 high level elements of the component plan.

· 3–4 high level goals per element.

· 3–4 key performance indicators for each goal.

Each strategic plan component can include tactical detail in endnotes or subsequent pages.

Over the next 5–6 weeks, we will rotate presenting on drafts of each of our plans, providing feedback, iterating and ultimately consenting to the final assemblage of the plan.

We will be experimenting with a few new things:

· We will budget for conferences and events up front and allow team members to self-select which conferences they want to attend, with input from the team.

· We will budget for firm-wide and individual training. Each team member will have a time and monetary budget that they control. The aim is to increase competence and interdisciplinary knowledge and experience.

· We will budget for innovation and technology. Team members will have individual budgets they control for experimental projects and technology, to make the most of each team member’s creativity.

III. People Policies and Work Expectations

We hired our first employee in June of 2018. Despite having long practiced employment law, it is quite different to be an employer than to advise employers. I found myself in the seat that our clients usually occupy. I had to get comfortable with all that hiring employees entails; payroll, fixed costs, workers compensation, leading, supervision, and, most importantly, creating a culture and work atmosphere that enabled the highest contribution from people.

To do this, I resolved certain things:

· First, I would resist the inimical truth that setting compensation is an inherently imperfect science. I made the typical “negotiation” process collaborative, open and transparent. I showed prospective employees all the numbers and the revenue and cost model for the position. Their contribution and commitment is valuable to me and the firm and I want each team member to know that.

· Second, I didn’t want to baby-sit employees. I wanted to only hire people I trust unconditionally. I wanted to set each employee free to do their best work and to be happy. I tell team members that they can work any time, any where and in just about any way that suits them, as long as they get the job done to their highest ability given the circumstances and resources available. One team member chose to work while visiting a friend in Scotland. Another worked remotely from South Africa while visiting family.

· Third, I wanted to practice what we preach. The conventional 2080 work hours/year is…unworkable. It roughly translates into more awake time at a desk than with family. This is not how I choose to live my life, and so it would be hypocritical to impose this on co-workers or employees. Therefore, we set an expectation of a 1600 hours of work/year. Not just billable hours; that’s total time. This translates into approximately 31 work hours per week for 52-weeks, or 33 hours per week for 48-weeks. What employees chose to do with their time outside of the 1600 hours is up to them. We expect our team members to recharge themselves and to take time away. We put in place safeguards against burn-out.

· Fourth, we mean what we said in #3. We have an unlimited vacation policy. As long as employees meet expectations and add value to the firm according to prescribed metrics and quality goals, our team members are in control of their time.

· Fifth, we pay at or above market rates to our employees and contract attorneys. I regularly review market data for firms of our size, practicing in comparable areas of law, and practicing in similar geographic regions. We provide health insurance to all full-time employees, a 401k plan, paid professional development, a remote work stipend, and paid access to a rich technology platform for collaboration.

· Sixth, we create the conditions for innovation and entrepreneurial risk taking. By maintaining flexible and reasonable work expectations, we can afford to enter into creative and alternative fee arrangements with clients. We are experimenting with fixed fee, monthly subscription models, and other non-time-based billing practices. Our aim is to enhance value to clients while creating a fun work environment.

Jason Wiener | p.c. Named “Best For The World”

Jason Wiener | p.c. is proud to announce that we have been named “Best For The World” by B Lab for the second year in a row. This year’s award focuses on governance within the legal industry.

We have been a certified B Corp for three years and a Public Benefit Corporation for nearly four years. Jason Wiener, Principal at Jason Wiener | p.c., had this to say: “We are honored to join such impressive company with others recognized as best for the world.  This is a very meaningful distinction. We will continue to strive to advance the notion that business can be a force for good.”

We are intentional about working with and advising companies that are progressive in their approach to business. Whether it be a company committed to having a net positive environmental impact or a small business that wants to implement democratic ownership principles, we are helping our clients innovate their business structures and governance practices to achieve better outcomes for employees and communities.

As a firm, we re-visit our values and mission statement weekly to discuss how we are living out our values and where challenges arise. This results in an open dialogue among everyone at the firm about how we can better serve our clients and what impacts our actions are having on our community at large. Our most recent community initiative, the Legal Café, came out of this open dialogue. The Legal Café is a free event, inspired by the Sustainable Economies Law Center, where we invite community members to join us for a short presentation on a legal issue and an hour-long small group Q&A with our attorneys.

The practice of regularly discussing our firm values keeps our work fulfilling and reminds us of the positive impact we are making while also keeping us honest about where we can improve. It has been a wonderful tool for reflection and goal setting. Out of this and other practices we are creating a workplace that rewards everyone for their efforts, learns from the past, and creates effective decision-making structures.

Perhaps the most important part of being a social enterprise is continual evaluation of current practices with a critical eye to where we can improve. Through retreats, retrospectives, and weekly team huddles, we evaluate our impact internally and externally—constantly looking for ways to improve. As a result, our firm takes an iterative approach to client work; we are not hesitant to try new things. This approach keeps us engaged, flexes our creativity, and ensures that we are delivering innovative solutions for our clients and community.

As we grow, we are excited to also grow our community focused offerings. One long-term goal we have identified is to increase the amount of pro bono work we do individually and as a firm.  To do this, we plan to continue hosting our Legal Cafés, explore pro bono partnerships, offer one-on-one consultations to low-income entrepreneurs, and increase our use of technology in a thoughtful way that will allow us to serve a more diverse set of clients.

We are excited and honored to receive recognition for our work as a B Corp. To anyone new to this space, there are a variety of practices that have led us to where we are. Don’t be afraid to experiment and actively engage your employees, vendors, and customers in the discussion about ways to improve.  Give out much responsibility, trust people—then listen to and implement the feedback.  Together, you will have more impact than you could individually.

Creating the Workplace We Want

Management and operation of a law firm has taken many forms over the years and we are exploring new, innovative ways to run our firm. We are experimenting with the use of democratic principles, Teal, and self-management to develop a style that works for us and our clients. Earlier this week, Jason sent an article around to the team that highlighted The Wellington Community Law Centre (WCLC), a New Zealand law firm that went from a traditional hierarchical management system to fully self-managed in six months. Our firm has been discussing and implementing self-management techniques and it was inspiring and encouraging to read about WCLC’s journey. While reading the article I was tripped up by the reference to “advice process.” I had never heard the term before and we haven’t formally chosen a decision-making process to adhere to, so I did a little research. In a nutshell, advice process is an alternative to top-down and consensus decision making. Instead of executives or leaders making decisions, the employee who notices the problem or opportunity is empowered to act on that knowledge and becomes the decision-maker. The decision maker must seek input and advice from the relevant team members, leaders, and stake holders, but is ultimately responsible for creating a proposal and deciding what action to take. The process resonates with me because even as the least experienced member of our firm, I feel empowered to make decisions and suggestion for improving processes or creating new ones. I’m comfortable approaching the more senior attorneys to discuss my ideas and get their feedback and I’m able to pursue projects that interest me and be an active participant in my career development.

My favorite quote from Geoffrey Roberts, the general manager of WCLC, was, “When you treat people with high levels of trust, then they will live up to that. They will give you much more than you can imagine. Anecdotally, I argue that high levels of trust result in high levels of engagement and flexibility.” Perhaps more than anything else discussed, I feel that building trust is critical. For me, feeling trusted makes me feel like I can make mistakes and that I will get productive feedback that will help me grow as a lawyer. Having trust also means that I’m not afraid to come forward when I have made a mistake or to be held accountable for a decision I made. One way our firm fosters a trusting environment is through quarterly retrospectives. Retrospectives give us the chance to reflect on what is and isn’t working – they also help remove the negative connotations from accountability. Instead of accountability being scary, it simply becomes an opportunity to celebrate a win or learn from a decision that didn’t work out.

As a member of a law firm that is treading an unconventional path, I love seeing what WCLC has been able to accomplish. It gives me hope for the future of the profession and it’s nice to know our firm is in good company.

Choosing the Right Entity for Your Business

Last week our team held its first legal café at Green Spaces in Denver. We welcomed a group of approximately thirty entrepreneurs and discussed the nuances of entity choice. Our team was excited for the launch of what we hope will become a mainstay for the firm and a valuable resource for our community. We selected entity choice as our first topic because this early decision can often have far-reaching consequences for businesses. The right entity is critical for many aspects of the business, from protecting the social mission to attracting outside capital. Our hope is that we can help early stage entrepreneurs avoid the pitfalls of choosing an entity not well suited to their long term vision. To that end we created this presentation with an overview of entity types and strategies for choosing the right entity. Those who attended the legal cafe also had the opportunity to participate in an hour of small group Q&A with our team.

The event exceeded our expectations and our team is looking forward to hosting future legal cafes that provide useful information to entrepreneurs at all stages of developing their business.

Press Release: Leading Colorado Cooperative Business and Sustainable Economies Law Practices Join Forces

FOR IMMEDIATE RELEASE

Jason Wiener|p.c.                                                                                     

 CONTACT:

Jason R. Wiener

Jason Wiener|p.c., a public benefit corporation                                                   Linda D. Phillips

720.445.6860                                                                                                     303.355.0401

jason@jrwiener.com                                                                                          linda@jrwiener.com

www.jrwiener.com                                                                                              www.jrwiener.com

 

Leading Colorado Cooperative Business and Sustainable Economies Law Practices Join Forces

 

The law practices of Linda D. Phillips and Jason Wiener are merging effective April 1, 2018, to scale client service, capacity, training, and impact for the firms’ collective work with cooperatives, social enterprise start-ups, sustainable growth companies and mission-oriented businesses.  Jason and Linda have been collaborating for close to a decade. In that time, the shared ownership and cooperative movement has expanded significantly.  The two attorneys will merge their practices and continue the process of building a team of dedicated, talented, multi-faceted and purpose-filled attorneys.

The merger of Phillips Law Offices and Jason Wiener|p.c. coincides with the rapid growth in purpose-oriented start-up law work, shared ownership conversions of growing and mature transitional businesses, and alternative and non-extractive financing for small- to medium-sized businesses.  The combined firm will offer higher level resources and services to the growing craft beer and beverage, renewable energy, technology, agriculture and small producer, housing and real estate, and co-working sectors, and to other worker and multi-stakeholder owned businesses.  The firm has attorneys licensed in Colorado, New York, Massachusetts, Connecticut (pending), and South Africa, and serves clients in more than 21 states and 4 countries.

Linda and Jason will collaboratively train and lead a team of junior and mid-level attorneys and staff.  The firm is committed to self-management principles and transparency.  The firm has begun open management and collaboration practices, including regular internal discussions about client service, core values, financials, and business development.

About the merger, Linda says “it’s exciting to become part of a team that shares my passion for advancing cooperative business models and helping businesses realize their visions through proper legal and management structures.”

Jason says “We are tremendously fortunate and honored to leverage Linda’s experience to bridge three generations of Colorado cooperative law and to offer such deep business law expertise to our current, new and prospective clients. Linda’s addition to our team will also help train the next generation of cooperative and sustainable economies lawyers.”

# # #

Increasing Access to Legal Services – Process Improvement and Automation

I went to law school because I wanted to make a difference. Initially, I though I would focus on environmental issues, but through a variety of courses and internships, my focus shifted to economic inequality and access to justice. This new focus piqued my interest in how technology could expand access to legal services and led me to Michigan State University College of Law’s LegalRnD program. The program offers several courses, and as a 3L I took a course call Litigation: Data, Theory, Practice and Process, with Daniel W. Linna Jr. I had no idea what to expect, but I was excited for a hands on, practice focused class. I was not disappointed; Professor Linna introduced new concepts and challenged the traditional ideas about legal services throughout the class. We experimented with several process improvement techniques including Lean Six Sigma, Kanban Boards, design thinking, and process mapping as tools to solve for inefficiencies in legal processes. He challenged us to think about legal issues and client needs from a process point of view and was constantly asking how our proposed improvements would add value for clients. By understanding the process, we could remove most of the inefficiencies without technology and when we did employ technology, we had a crystal-clear understanding of why it was necessary and how it improved the process.

As part of the class we were asked to re-imagine a legal process and automate it using ThinkSmart’s (a legal software developer) legal workflow automation tool, TAP. I chose to create a new system for referring pro bono work to attorneys. I created an automated workflow that aggregated attorneys’ availability for pro bono work, areas of legal expertise, contact information, and location into a database that would be hosted by the State Bar Association. The rest of the process is automated with inputs from legal aid offices looking to refer clients out and attorneys in the State Bar database. ThinkSmart spotlighted the project on their blog in February.

I’ve carried many of the skills I learned in the Litigation course into my daily practice. I look forward to continuing to leverage process improvement and technology to deliver better services to our clients, create organizational documents that are legally sound and user friendly, and to evolve the practice of law for the 21st century.

 

Building Our Community Through Legal Cafés

A strong and supportive community can enable and catapult any entrepreneur to success. This is even more true for social entrepreneurs, those who find solutions to the most pressing social and environmental problems of our time. As an aspiring social entrepreneur, I can attest to the fact that my community became my champions, confidants, partners, teachers, and emotional support, without whom starting a business would have been a whole lot harder.  

Jason Wiener | p.c., a mission-driven company, believes in supporting our community by designing legal and business solutions that empower social entrepreneurs to find solutions for the most pressing social and environmental issues of our time. However, to get these innovative businesses off the ground, social entrepreneurs need to navigate a maze of options and regulations – a daunting and sometimes expensive task.  

Colorado is one of the most beautiful and exciting states to live in, which is simultaneously experiencing unprecedented, often inequitable and unsustainable growth. We need social entrepreneurs that come up with equitable and empowering solutions for our communities. As a social enterprise, we understand this need and supports social entrepreneurs. We have the expertise, willingness, passion, knowledge, and ability to support social entrepreneurs to form their business, navigate the regulatory environment, and provide business solutions tailored to each venture’s needs. To expand access to this information and high quality legal services, we have launched a pro bono initiative tentatively called the “Community Wealth Building Legal Café” in Denver, which will provide basic legal guidance on the elements of starting up an impactful social enterprise.  

During our first legal café, we will discuss one of the first challenges that entrepreneurs face when starting a business: choosing a business entity that truly fits the entrepreneur, as well as the business’s, needs. Figuring this out can be time-consuming, confusing, and often costly. At this legal café, we will give a thirty-minute presentation on the diverse types of legal entities that entrepreneurs can consider, the pros and cons of each, and how to set these up. We will specifically focus on inclusive and engaging business models that have shared ownership at its core. Employee ownership more equitably distributes power and capital by allowing employees to have a purposeful stake in the businesses. 

This legal café will be held at Green Spaces, a co-working space in Denver. After the thirty-minute presentation we will open the floor to questions. A team of attorneys from Jason Wiener | p.c. will be there to answer all questions about legal entities, social enterprise, and shared ownership. A free light lunch will also be served. Registration is also free. Register on Eventbrite on or before Tuesday, March 27. 

Our Practice with Democratic Control: Developing a Style Guide and File Management System

I wrote last week about how I advised a friend how to experiment with and develop democratic processes without (yet) operating within a cooperative structure.  This week, we took our own medicine and experimented ourselves. Now, many readers will think the canvas for this experimentation is so “lawyerly” or trivial, but many others will immediately understand how meaningful and sometimes emotionally charged the subject can be.  Wait for it…we discussed and democratically determined our drafting style guide and file management system.

We have been working as a team on a uniform document drafting style guide and file management system for the last six months.  When the practice was just me, it was not as important to hold to standard practice because I, and I alone, had to work with whatever style de jure I chose to use.  With a team of five and a more established practice, it has become critical to adopt uniform practices regarding file management, file titling and document drafting.  Why, you ask?

 

  1. Quality. It is core to our values to strive to produce work of the highest quality.  Integral to high quality work product is a readable, consistent and polished format. Standardizing this across five team members for several dozen clients becomes a challenge without some proactive effort.
  2. Accessibility. Further to our core values is producing client-centered, people-oriented documents that are both accessible, professional, and cost effective.  This means foregoing Latin terms of art for more plain language terminology, simplifying organizational structure to make a document more easily navigable, drafting in a voice and style that reflects and enhances the client’s values as a reliable trustworthy party to another, de-cluttering documents by removing superfluous verbiage and definition, using clearly and consistently defined terms of art, and focusing on the ultimate users of the contract – the client and counter-party – but keeping an eye on the potential for a third-party interpreter (e.g.  a court).
  3. Uniformity. We are in the document game and file management is a real logistical challenge.  Version control, document collaboration, remote access, cloud storage; we are a contemporary firm dealing with many of the same challenges as our clients and any other organization for that matter.  For a variety of reasons that we’ll address in a separate blog post, we use a Microsoft Office365 SharePoint server for our file management.  It has become important for us to adopt a uniform file folder architecture and file management structure.  Debating the finer points of this structure has revealed that attorneys, and most people for that matter, have deeply held opinions about how to file, search for and retrieve files.  Surfacing these opinions and achieving consensus is important if we are to expect consistency and develop a streamlined and reliable system for file management.
  4. File naming. I’m sure readers from all backgrounds and in all professions can appreciate the deeply held opinions about how best to name files.  We are no different.  We are debating where and in what format to put the date in the file name.  How do we title a document?  Do we use version markers, or just rely on meta-data?
  5. Continuity. As our law firm grows, it becomes more difficult to keep up with the daily matters that our colleagues are handling. If we need help from a colleague (or if a new colleague joins the team), a strong document management system diminishes the need to explain the matter in detail and enables a smooth transition. Uniform file management can tell a story of the matter, creates continuity and, even though it takes a while to get used to, it can greatly improve efficiency in the long run.
  6. Security.  We take data security and client confidentiality very seriously.  We stay up to date with best practices and technological hygiene.  We have team members working in at least three time-zones and from places ranging from Nairobi, Kenya to Western Massachusetts.  It is crucial that our team members employ best practices to ensure end-to-end data security measures.  We openly discuss what measures are prudent to both comply with our professional responsibility and to go further to help preserve the balance of remote work with client confidentiality.

Our team has gone back and forth through multiple iterations of a written style guide.  We have spent valuable time, collectively, discussing the finer points of these matters on a Zoom meeting.  I was impressed, but not surprised by our team’s respectful discussion, openness to new ideas and the variety of opinions held.  It was so cool to see how one topic was of significance to one person and not another.  This created a quasi-negotiation format to the discussion, as we each implicitly yielded on less important matters for the sake of seeking adoption of more strongly held opinions.

 

Yes, as the principal of the firm, I can technically fiat the rules by edict and expect all team members to comply.  Such command and control styles of management often require more investment in oversight and enforcement. Fending off work-arounds and pushing consistent adoption become the conventional role for the manager.  The more contemporary (and dare I call it humane, effective, responsive and humble) style of leadership involves seeking input widely and developing consensus-based processes to widen the aperture on issues of broad applicability.  The role of this style of leaders is then to facilitate consensus and welcome input.  Once a decision is reached (and yes, this takes longer on the front end), the result is little to no time spent on adoption or enforcement.  The rules we have set for ourselves are self-enforcing; they are the product of our collective input and negotiation.  We all feel bought in. Today felt that way.

 

The most meaningful part of this exercise is not the end product or the ultimate decisions we reach on the finer points of file naming. Rather, it is that, in spite of our firm not (yet) being cooperatively owned, we embrace and practice democratic control and collaboration.  We expose the many mundane features of our work to daylight and discussion and we adopt practices with intention and an openness to constant improvement and adaptation.  We do this to ensure all voices are heard, all opinions registered and, most importantly, to maximize the opportunity for the best ideas to be adopted.

 

I’m sure we’ll re-visit many of our collective decisions and practices. As long as we do so openly, transparently, and collaboratively, the end product will be suited to our highest ideal and core value — democratization.

A View from an Outside General Counsel’s Perch

I was an in-house general counsel for more than 5 years at Namaste Solar. While in the role, I learned that rendering traditional legal advice was, as they say, necessary but totally insufficient to being successful or adding value. My colleagues consistently pushed me to add value by offering what I now call “legally informed strategic advice,” by which I gave actionable advice to make a decision in light of real world constraints and risk. No path was totally free of risk and no decision could be completely optimized for one variable at the expense of all others.  Law school, for better or worse, teaches lawyers to analyze a case with 20-20 hindsight and to evaluate the facts in light of black letter law. I was rarely pushed, or even inspired to go further and analyze what should have been the decision in light of broader circumstances.

So, when I became an in house counsel, I had to play a critical team role and advise a $20+M company through volatile and risky waters. We navigated a recapitalization, a turbulent and unpredictable policy landscape, layoffs, litigation, growth, scaling production capacity and massive industry consolidation. We had to act with poise, a watchful eye, but always with the clarity of knowing that unknowns lay just around the corner.

This experience has informed how we now offer general outside counsel to our clients today. We do this for more than 25 clients each year, and the number continues to grow. Increasing demand for our outside general counsel services tells us that (a) values and vision aligned legal counsel is rare and hard to find, (b) counsel willing to advise at the intersection of legal and business risk/opportunity is even rarer and harder to find, (c) adding value in multiple practice areas and legal topics involves constant adaptation and knowledge sharpening, and (d) offering “legally informed strategic advice” leads to better decisions.

Below are a few questions we ask ourselves and our clients to tune us for the task at hand:

  1. What is the context surrounding the issue we’re discussing?  Risk and opportunity do not present in a vacuum. Broader issues are at play. Are you facing a business cliff, or massive strategic opportunity? Is your back against a wall and you need this deal to go through? Are key relationships at stake and worth compromising to preserve? How is the business doing, overall?
  2. From what position are we starting?  Are we being asked to create a template that will scale up with a new offering? Are comparable transactional templates available? Are we able to red-line a draft from the counter-party? Different starting points present different cost structures and timelines.
  3. What are your high level concerns and objectives? This may seem obvious, however, I’m still surprised how seldom counsel checks in with the client to understand key concerns. Clients are most knowledgeable of the broader context, their own business and the dynamics of the negotiation. Without this information, the attorney is flying without instruments.
  4. Where are we in the negotiation timeline?  I like to ask this question as follows: “Are you asking me for an 11th hour review?” In other words, are we pulling up to the closing table and just looking out for major deal-breakers or red flags? Are we trying to raise awareness but we understand we’ll have little opportunity to request changes…at least not without jeopardizing the deal? This question fundamentally helps the attorney understand what, if any, bargaining leverage we have in requesting changes in a red-line. It’s a pet peeve of mine when an attorney red-lines each and every section of an agreement as if on a quest for technical and substantive perfection…one-party optimization.  This just does not reflect a balanced or real-world understanding of business negotiation. Parties interested in consummating a deal both give and take. It is the balance of compromise between the parties that determines how healthy a deal is and how likely both sides are to remain committed to it. I’ve seen time and again when a document replete with red-line edits grinds a negotiation to a halt, often over details that are esoteric and even academic to the parties business interests.
  5. Similar to the last question, are we “papering” an agreement already reached, or are we carving a statue from raw stone? In other words, have all material terms been discussed and negotiated by the parties or are we proposing terms for the negotiation that follows? The answer to this question fundamentally and significantly impacts how the attorney approaches her task and her perspective. Attempting to propose new terms in a negotiation that simply needs to be documented can lead to the breakdown of a negotiation. I’ve seen parties allege bad faith when the attorney for one party unwittingly raised new concerns and terms when the parties thought they had negotiated the 4 corners of the deal.

As always, clear documents support productive relationships. Good documents require clear, consistent and engaged communication between client and attorney. Clear strategic advice requires consistent communication even more so . Both sides need to develop trust between one another.  It’s neither an efficient use of client dollars, nor a good use of an attorney’s time to fly blind in supporting a client transaction. Offering value-add legal services requires that the attorney be kept in the loop and privy to the direct and indirect factors that influence negotiations.