The next wave of efficiency in the provision of litigation services is the disaggregation of experienced litigators from the traditional structures of large law firms. It is the natural consequence of changes in the marketplace for legal services.
In 2011, when I served as Secretary of the New York State Bar Association's "Task Force on the Future of the Legal Profession," we observed the ongoing drive to make the delivery of legal services more efficient. Law firms had retrenched their practices to avoid throwing $500/hour, newly-minted lawyers at "due diligence" and document review, with contract attorneys becoming the norm for commodified legal work. Technology was enabling lawyers to do more with less. And clients were taking work in-house to avoid the billable hour, preferring to hire outside counsel only for specialized tasks.
Five years later, the changes have only accelerated, and even the most sophisticated practices are feeling the pressure to reduce overhead and operate more nimbly: firms are bidding on jobs and are routinely forced to discount their bills. Talented lawyers who don’t generate big business are pushed out of partnerships. The trappings of the traditional law firm – libraries, excess paralegals and secretaries – are being left behind.
Those who see the trends are planning for the future and looking for alternative structures that allow them to continue to serve their clients. And increasingly, there is a business rationale for clients to hire high-level experienced litigators who have separated themselves from the law firm model:
- Buy the Individual, Not the Overhead. It is a truism that clients hire lawyers not firms. Independent attorneys operate free from the internal constraints and conflicts that are often associated with large firm practice. What client hasn't had the experience of the retained lawyer floating in and out, while the case is taken care of by others? Or a firm keeping its associates busy on a matter? Selective retention of independent counsel assures that the person you hire works directly and deeply on your matter – scaling-up as needed, without supporting the billable requirements of others, or the dictates of overhead at the firm. The incentive structure is different, and compensation can be structured accordingly.
- Optimal Deployment. Good litigators avoid firing cannons at mice. At the same time, experienced counsel recognizes when more muscle is needed. Hiring an independent lawyer to assess and work your case encourages right-sizing, as there is no capacity for overstaffing, but there remains the motivation to get it right for the client, calling in reserves as needed. When cases scale-up, trusted independent counsel can provide economical leadership for larger case teams.
- Encourage Collaboration. Corollary to the principle of Optimal Deployment, hiring independent counsel encourages collaboration among lawyers and principals, rather than the groupthink that may result from turning a matter over to a firm, with its own internal dynamics and motivations. Successful use of independent counsel may mean combining forces with more than one independent lawyer, or pairing independent counsel with a larger firm, to provide strategic support, encourage collaboration, and to obtain the benefit of a truly independent second-opinion. Independent collaboration, rather than creating a larger case team within the same firm, can check doctrinaire results.
- Demand Simplicity and Accountability. Only one person can talk at a time, and you generally need only one successful legal theory. Often the best legal arguments are the simplest ones, and the most practical solutions are those born of necessity. Ironically, skilled and independent counsel, working within constraints, may be more likely to cut to the core of disputes, focus on important issues, and present your case economically.
- Find More Solutions. It's simple math. If you have independent counsel driving efficiencies into your legal services supply chain, there are more resources to tackle more issues.
If you haven’t already, consider independent counsel as part of your legal procurement practices. You may be surprised to discover that many sophisticated lawyers have disassociated themselves from the institutional structures of old. Not only are more litigators (as I am) adopting a free agent approach outside of the big law firm model, but also, Priori Legal, and companies like it, eliminate the time-cost of identifying these independent litigators as well as uncertainty about the quality of their services – rendering it easier than ever to implement efficiencies for high-quality legal services.
