Delawyering – Busting Some Myths

Inhouse legal teams are increasingly looking into their role and their work content. There are typically two drivers. One is the need to manage growing workload and overwhelm. The other is the evolution of new aspirations in legal teams. Often the two interplay.

Workload growth

One of the key challenges for inhouse legal teams today is the busyness and the scattered focus that comes out of being a stretched corporate resource that is spread thin across many competing demands and tasks. It is not uncommon for inhouse legal teams to still apply an “open door approach” and attend to any request that comes in, in a “serve all approach”. At the same time new regulatory requirements and new legal risks emerge, there is business disruption to manage and there is an increasing need for cross-functional collaboration and project work. As it is not sustainable to just keep hiring lawyers to try to manage work that piles up, legal leadership must rather look into how existing team resources are allocated across competing needs, next to looking into efficiency improvements.

The new aspirations of inhouse legal teams

There is also a growing desire in legal tams to take a more strategic role and focus on higher-value work, moving out of the reactive “responding” into a more proactive approach where the legal team acts more strategically and systematically. It can involve building and implementing programs and holistic solutions through which legal risk management or compliance is operationalized, proactively driving Legal’s own agenda of prioritized initiatives, scanning the horizon and prepare for change to come (like new regulation or new risks) and going to root causes to avoid problems and move to more preventive lawyering. Or simply working with Sales on strategic business development and with Procurement on most critical supply chain risks, or contract management improvements, instead of reviewing routine contracts on demand.

Addressing these problems

A core problem is that there is often not a clear view on what role Legal should play and how the team should be deployed to bring most value and have most impact for the business. There is a lack of strategic positioning for the legal function. In addition, many legal teams don’t even know how they currently spend their time across different areas, stakeholder needs or type of tasks. There is a lack of data insights for informed decision-making on resource prioritizations or investments. Legal teams are increasingly taking action to address these challenges. They seek to clarify their role and their contribution (within the team and towards others), for example develop Legal Function Strategy Frameworks, Targets & Plans and KPIs that can help support prioritizations and focus. They also seek to get better data insights on focus and work allocation of team, such as through Matter Intake and Matter Management systems, and they increasingly invest in operations and tech initiatives aiming to free up time and improve efficiency.

We help many clients with this, and these initiatives are fundamentally important. But in order to enable real, profound change on what role the legal function, and lawyers, shall take and how different type of work shall be carried and services be delivered, there is also a need to challenge some common assumptions that often prevail in legal teams and that can hinder effective change and the ability to reposition the team, resource work right and develop the service delivery model. There are in particular three common assumptions that lawyers tend to make that, if unaddressed, can stand in the way of meaningful change; namely the assumptions: that 1) people always want a lawyer, that 2) the work lawyers do is bespoke and unique and that 3) lawyers must be targeted to “legal work”. Let’s take a closer look at each of these.

Let’s start with lawyers’ assumption that people love to “go see a lawyer”. Many inhouse lawyers like to think that that business stakeholders will always favor a model where they turn to their dedicated legal advisor – a lawyer of the legal team – to get personalized, tailored support on specific matters. Many inhouse lawyers started off their career at law firms and it seems natural to keep running in an “internal law firm” model. In this model requests for legal advice or legal support are received by an individual lawyer in the team and that lawyer attends to those requests one by one, sequentially, as time permits. Perhaps a meeting is booked to get some more information or clearer instructions and then a solution is designed by the lawyer for that particular situation and a piece of advice or a legal document is delivered to the requestor. Most lawyers think this is a great, high-service approach and the best possible way to attend to business stakeholder needs. This is also often how inhouse lawyers themselves engage with external law firm lawyers.

But is this always the best way to cater to all legal business needs?

In my work as a legal management consultant, I have interviewed many business stakeholders over the years and the thing is that many people in organizations find the status quo, consulting model limiting, and often too slow and inflexible. They are especially frustrated about having to sit and wait for guidance or support on very hands-on or straight-forward questions, like “who can sign this” or “can we phrase this marketing messaging like this” or “can we agree to this minor contract change proposed by the counter party”. It often makes the legal team come across as unresponsive and a bottle neck that brings down the flow of business.

What if as lawyers we need to reimagine how to serve our clients based on a more business centric view? As an analogy, let’s consider how our preferences in solving our private financial situation or health issues have changed in the past years. We don’t really want to go to the bank office if we can solve our questions through the app on our phone. And we don’t really feel we need to go see a doctor if we can get help through googling or a digital-first healthcare provider that can triage us (such as based on a questionnaire we fill out) to medical guidance or help tailored to our specific problem. Not only does this make our life as a customer or patient easier, it also helps free up a lot of time for bank staff and doctors to not have to spend valuable time on simple, routine matters.

Legal’s customers are no different. Which means, similarly, there are better ways to attend to many legal related business needs too than servicing them in the traditional, advisory case-by-case way – deploying a lawyer to all problems. Or as legal futurist Richard Susskind has phrased it “people don’t want lawyers, they want resolutions to their problems or the avoidance of problems altogether”. That’s why we should ask ourselves “how is this specific legal business need best solved or serviced?” and then apply an open mind to what the most relevant solution is. Is it a lawyer, a paralegal, a chatbot or other self-serve tool or an outsourced managed service provider? Can parts of the process be automated or can AI be deployed for better service or more accuracy? Can matters be more effectively triaged? Triage is a term applied in emergency rooms for assessing patient needs to match that need to most relevant solution – a doctor or a nurse, an immediate measure or a delayed response etc – that can be directly translated to attending to corporate legal needs.

If we challenge our assumption that the best solution is always a lawyer, we can identify candidates for “delawyering” some work. By moving lawyers out of some work we can free up that time for something else that makes better use of that lawyer resource, and also in the process ideally bring even better service or experience to business. A useful segmentation approach to identify work that is prime for delawyering is to look for pieces of work that is routine (core business, non-complex etc), “recurring” (common “business use cases”) or “standardizable”. Which brings us to the next flawed assumption.

Lawyers love to think that the work they do is unique and that, as a result, the benefits of standardization or process redesign or automation do not apply to them. Research suggest that lawyers highly overestimate how much of the work they do that is bespoke and highly underestimate how much of their work can be standardized and systematized, packaged and productized. While as lawyers, from a strictly legal lens, we might consider all cases different in some way, the work we do tend to have more things that are common than not. For example the root cause of different matters can be the same or the process through which Legal is involved, relevant information is collected, communication is exchanged, work is carried out or output is delivered can be very similar, or the same type of legal know-how is applied to solve different problems.  Or the problem our internal clients experience can be the same or similar, from their perspective. One reason lawyers struggle with identifying standardizable work is because many lawyers think in terms of cases or matters, and legal products (output) rather than processes. Some lawyers also don’t like the notion that any part of their work would be “routine” because they think it would somehow diminish their role or value.

When we make the effort to identify repeat requests or problems, or workflows that are similar or recurring, we can always find candidates for standardization, reuse of work and knowhow and automation, presenting the opportunity to bring better service and experience to business.

The third assumption that is flawed and that stands in the way of deploying the legal team effectively is the notion that the most relevant criteria for assessing if the legal team should do a certain piece of work is whether that work comprise “legal work”. But what exactly is legal work?

The danger here is that, in the absence of a proper definition, we tend to resort to thinking that legal work simply is all that work that lawyers have traditionally done. It can be legal research or analysis or contract review, drafting legal documents, or writing memos or policies, or answering legal questions. But we live in a time now when we can deploy technology to do a lot of the work that lawyers have spent time on in the past. AI is for example very capable of spotting risks or deviations or drafting text or answering simple questions on legal matters. Also, straight-forward, routine legal matters can be managed by people who are not trained lawyers, with relevant support of technology like a contract automation solution or a chatbot.

A better question to ask than -“is this work legal” is -“are lawyers the best resourcing option for this work?” taking into account the unique capabilities lawyers have compared to others, but also uniquely human capabilities. Or phrased differently – what is lawyers’ highest point of contribution? Clearly, lawyer’s unique proficiency to do work that requires deep or highly specialized legal expertise will always be there, but it can also be other things that lawyers excel at, like judgement, ability to solve complex problems or critical thinking. These abilities can also be deployed to more business-related type of work, like strategizing with key business stakeholders on direction, plans and change or supporting business development, like new business models or go-to-market approaches or succeeding with business transformation.

Lawyers are also great at co-ordination, structuring and management of different types of ‘complexities’. Because lawyers work with all parts of the organization they often develop great organizational intelligence and is able to bridge functional silos and apply a more holistic lens. This makes the legal function uniquely well placed to step up and take ownership for end-to-end contracting or enterprise-wide AI governance for example, or managing compliance in converging, multi-functional areas like ESG or Cyber, where ownership can be blurred.

Many lawyers complain about having to do “project leadership type of work” or doing “work that others should do” (typically stuff that slip through the cracks of the organization or that lacks clear ownership internally), but what if – on the contrary – this is a great opportunity to position the legal function for value creation? Having a function within the organization that can identify and manage the “white space” brings great business value. White space comprise areas of business that have unclear strategies or unclear governance or vague rules, compared to so called black space that are those areas that have clear ownership and are typically well-managed and targeted with formal planning and budgeting. The white space in organizations are increasing, triggered by growing complexity and convergence.

A more relevant question to ask than -“is this legal work” is, -“is this high-value, high-contribution work for our business and are the capabilities of the legal function and of lawyers a great fit for doing this work?”

Legal function strategy revamps and legal operations initiatives should not just focus on lawyer efficiency, like making the lawyers faster in the legacy model. Reimagining the legal function for the future should also involve revisiting the role lawyers play and the work content – extending the change also to legal team effectiveness – ensuring effective deployment of resources and best possible return on investment on the money that is being spent on the legal function. By asking relevant questions on resource use and team allocation we can get answers that trigger more transformational change compared to just incrementally improving the status quo. And by always challenging our assumptions we make sure we ask the right questions and apply an open mind to best possible solutions.