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Legal triage

Law Department Management
|Written By Donalee Moulton

In an era of increased regulation, economic chaos, and business downsizing, legal departments across Canada are struggling to manage their workflow more efficiently, and still meet expectations. It can be a daunting task but many in-house counsel are successfully juggling demands and still finding time to have a life outside the office.

First, there is the successful management of the legal files routinely flowing across desks. It’s no easy task, says Brian Armstrong, executive vice president and general counsel with Bruce Power in Tiverton, Ont. “In-house practice is a constant exercise in triage. You never leave the office thinking that your files are up-to-date.”

One reason for the emergency measures is lack of control over workload. “We don’t normally own our own workflow,” says Charles Gervais, senior legal counsel with Assumption Life in Moncton, N.B. “We receive a lot of requests. We try to address each request efficiently.”

Addressing those requests starts with deciding what ones actually need to be addressed. “Workloads are the single biggest challenge for legal departments. The issue is a lack of capacity to handle more,” says Richard Stock, of legal services cosulting firm Catalyst Consulting. “You have to reduce what’s coming in the door.”

That involves assessing what is relevant for the legal department to handle, and what is a priority. “What we try to do is identify what work our internal clients regard as very strategic to their ?business plan goals and objectives,” says Armstrong.

Central to managing workload for Gervais and his colleagues was managing expectations. “We are the service provider and they are the client. We need to understand what they want to achieve,” says Gervais.

Last year, the Assumption Life legal team, which includes three lawyers, redefined its values and spelled out what it needed from other departments in the company. In all, the legal department identified 10 core values central to achieving success.

These include respecting others’ ideas, approaches, and competencies; accepting responsibility for their actions and the outcomes; and involving those who are affected by their decisions. Three expectations were also articulated. First, clients must disclose content completely. Next, they must provide honest feedback regarding the advice they received. Finally, in-house clients must understand that the legal department offers advice but the final decision is the client’s.

Drafting the values and expectations was not a paper exercise, says Gervais. “We live by it and we die by it.”

Denise Smith’s staff at the Nova Scotia Public Prosecution Service, Halifax Region, use a team approach to handle workload, and workflow. “For the most part, people don’t have ownership over files. . . . Files pass through a lot of hands,” says the chief Crown attorney. “The real challenge is how do you maintain the quality of legal work and pass on the intelligence of what’s been done on a file.”

To streamline the process, Smith and her team put together a best practices guide. “It was an attempt to reduce to writing those things that were understood. We ended up with a work product we could distribute to our new Crown attorneys and that was also adopted as a tool for performance management,” Smith notes.

The guide helps ensure consistency, avoid duplication, and save repeating instructions time and again, particularly important when a department is as large as Smith’s. The Halifax office, which Smith oversees, is the largest in Atlantic Canada. Smith is assisted by ?two regional Crown attorneys, one housed in the Halifax office and one housed in an office in Dartmouth. A third smaller office is located at the Halifax provincial court. In the Halifax office, there are 22 Crown attorneys and 17 support staff. In the Dartmouth office, there are 12 Crowns and eight support staff. Last year, the Halifax office opened 5,400 files and the Dartmouth office opened 3,400 files.

Managing the flow of work for in-house counsel also means anticipating what work will cross the desk, a significant, and growing, issue. According to the 2008 ACC/Serengeti Managing Outside Counsel Survey, a joint effort between the Association of Corporate Counsel in the U.S., and Serengeti Law, an e-billing and matter management firm, concerns about controlling outside legal expenses no longer top the list of what keeps in-house counsel awake at night. That dubious honour now goes to keeping track of company activities that might have legal implications.

The survey found increasing complexity of regulatory requirements driven by the Sarbanes-Oxley Act and related laws, along with a series of high-profile trials involving executives and in-house counsel, has led to heightened concerns regarding legal compliance issues. Many of the law departments surveyed admitted they generally use e-mail, phone, paper correspondence, and other manual systems to collect and report on compliance issues. Many also acknowledged that their systems lack basic safeguards, such as verification of data entered and spreadsheet formulas, and maintenance of an audit trail.

While the survey examined processes in U.S. legal departments, these concerns are certainly mirrored north of the 49th parallel and contribute directly to an increased workload and the need for greater efficiency.

In many cases, these issues are linked directly to another workflow issue: outside counsel.

For Armstrong, three situations trigger consideration of hiring outside counsel. If the work is highly specific or specialized, if the work requires human resources the legal department doesn’t have, and thirdly, if the work is routine and it is more cost effective to have it completed elsewhere.

In an economic recession, there may well be a fourth reason, optics. Workloads continue to climb, but hiring does not always keep pace. Now if companies are forced to lay off staff, or even contemplate it, they may be reluctant to hire new legal talent. Where to turn?

A new survey from Robert Half Legal found that more than one-third of attorneys polled had noted an increase in work with outside counsel during the past 12 months.

Regardless of the impetus for turning to outside counsel, the model for working with those lawyers remains consistent, says Armstrong. “We follow a co-counsel model. The work is closely supervised and worked on collaboratively.”

This approach enables in-house counsel to manage workflows effectively and to address their major headache, keeping cognizant of issues that might have new or continuing legal ramifications. “It enables us,” says Armstrong, “to continue to add value.”

While high-tech options, including e-discovery, spreadsheets, and e-billing, are used to enhance internal efficiencies, many in-house counsel rely on tried-and-true low-tech practices to keep on top of their work and the issues facing their departments.

Gervais’ team, for example, has a weekly staff meeting at which work done in the past week is reviewed and work on the table for the upcoming week is discussed. All of this information is documented in an Excel spreadsheet.

What is not documented, but what is reflected in enhanced efficiency and results, is the inspiration and insight that comes from a team. “We exchange ideas,” says Gervais. “We get better results.”

Smith’s team meets every two months on a Friday afternoon when the courts are least busy. Although meetings are mandatory, it’s difficult to get the whole team together at one time. That’s why detailed minutes are kept. “If the same issue recurs,” she says, “we can refer to previous discussions.”

Smith also recognizes that she doesn’t, and shouldn’t, do all the administrative work herself. “I work closely with the administrative secretaries. We talk about business practices. I give them full responsibility for the management of support staff.”

Armstrong regularly meets not only with his staff, but with his outside counsel. In addition to monthly staff meetings that include a complete file review, the Bruce Power VP also holds monthly conference calls with outside counsel to review the management of files. These meetings, he stresses, are not to review billings or discuss costs.

As well, Stock recommends that corporate counsel look at their own work practices to identify where inefficiencies creep in. One culprit: e-mail. In-house counsel frequently stop what they’re doing to answer e-mail, he notes. Such interruptions interrupt the flow of work and actually make counsel less effective. “Handling e-mail (inefficiently) can cost you up to 15 per cent a week in time spent unnecessarily or wasted,” says Stock. “You need to manage how work happens.”

In-house legal departments are getting much better at that, he adds. For many of these departments, age is a contributing factor in their ability to manage workflows and implement efficient processes. “Many are no longer in start-up mode,” says Stock. “The learning curve is catching up with them.”

Ultimately, notes Gervais, managing workflow is about more than simply doing something better, faster. “It’s about leadership. It’s about doing the right thing at the right time.”