• There’s a fundamental asymmetry in the conversation:
    • One asymmetry is that of consequences. If the client chooses a firm that delivers a wonderful result, everyone wins; but if the chosen firm delivers a disappointing or even deleterious outcome for the client, the firm still gets paid. Pretty much in full.
    • The other asymmetry is one of disclosure and, to be pointed about it, candor: The client needs to tell the firm as much as honestly possible about the engagement and what the client knows, while the lawyers’ instinct and practice is to guard information, hedge predictions, and avoid definitive statements. This is true even when the firm is posed direct questions about simple business arrangements and not ultimate outcomes, such as “Who will be working on my matter?”
  • Most commercial transactions in B2B land involve meaningful risk-sharing. (B2C is quite, but not utterly, different; while there might not be personalized or bespoke “risk sharing,” retailers accept returns and any self-respecting service provider will provide discounts or accommodations for disappointment–think of the totemic free drink at the bar while you’re waiting for your tardy reserved restaurant table.)
    Not to reprise an old joke, but the lawyer/client relationship is like the pig and the chicken’s involvement in your breakfast of bacon and eggs: The firm is involved, but the client is all-in. “Risk sharing” has no seat at the conventional lawyer/client table.
  • Finally, there’s an asymmetry, or more precisely a connection so indirect it strains common usage to call it “tenuous,” between the firm’s fees (please feel free to call it the price, since that’s what it is), and the value delivered to the client. When clients talk about receiving “value” from their law firms, they’re not speaking in metaphysical terms or trying to be difficult or oblique: They mean what is the benefit they derive from your services compared to the price they pay?  (The topic of “value” is, in and of itself, worthy of another column, or more than one other column, but suffice for now to say that value can be delivered at all price points and quality levels from the top of the food chain to the bottom.  Ferrari’s provide value, but so do Honda Fit’s.)

A final point.

Let me invite you to surmise how this left me all feeling about the state of our industry, viewed from the client’s seat. No, you don’t have to wait for the answer.

My impulse on leaving the more unsatisfactory of these meetings was straightforward: The arrival of truly useful solutions to this type of sophisticated but not profound question cannot come soon enough.

When, oh when, will Axiom, IBM Watson, or Google’s hypothetical embedding within what Thomson Reuters “knows,”  be ready to address this kind of problem? Fast. Cheap. And most important, Right.

If you wonder why clients are pushing back on fees and what that objectionable word “value” really means, all I can say is:  You should try this for yourself some time.  Move from the audience to the stage,  just for once.


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