When we last left our intrepid band at St. Michael’s Episcopal Church interviewing law firms for advice on the church’s vacant, crying-out-for-development, corner lot (here’s the original column), we had just finished meeting with firms.  Since then we sent out a very brief RFP and we’ve now heard back from all candidates.

Each of the three firms received the same one-page “Scope of Work” from us, which asked for a memorandum addressing these questions (I summarize and condense):

  1. What square footage is buildable as of right on the church’s property?
  2. What variances or permits could increase that figure?
  3. What’s the cost, timing, and odds of success of each potential variance or permit?

I’d like to be able to say the firms’ report cards have improved, but I can’t. Perhaps you can; I’ll let you be the judge.

Firm A’s response thanked us for considering them “for your land use matter” (nothing succeeds like the personal touch) and then listed, or trumpeted, their credentials:

  • One of the largest practices in New York in real estate
  • Did they mention they focus a lot on real estate?
  • With very high quality clients
  • And went into some detail on the background of the partner who heads up the land use practice group, although that individual’s degree of involvement on our matter was left somewhat murky.

After that, it was straight to the rate card, with a 15% discount off standard “rack rates” offered right off the bat.

Firm B’s response was quite similar, focusing on their credentials and reputation, and then the rate card.

Neither firm even alluded to alternative fees.

You may be asking yourself—perhaps you’ve done it yourself—what’s wrong with focusing on one’s credentials and the size of the practice group?  What am I objecting to?  Even more pointedly, what should I have expected?

The answer is nothing’s wrong with rehearsing your credentials; but you can’t stop there.

Shall we stipulate that each of the three firms we spoke to and submitted our one-page request to has more than ample legal capability to address our questions and provide a solid opinion? Yes, so stipulated. That still leaves St. Michael’s well short of any information it could actually use to help aid our decision-making and selection going forward.

Claude Shannon, the undersung mid-20th Century hero of information theory, essentially introduced the concept that something is not “information” if it doesn’t tell you something novel, something you didn’t already know. To truly qualify as “information,” the content (the “signal” as opposed to the “noise,” to Shannon the engineer) must be hitherto unknown. In this sense, the firms’ credentials were not “information.”

What else is needed? If the credentials are necessary but not sufficient, what would be sufficient? The answer is a focused discussion of our issues.

I understand that firms that know they’re part of a competitive bakeoff, as these firms did, are reluctant to over-invest in customized responses to every request that comes in, and the profit-maximizer in me understands that. What I am saying is that had one of these firms spent even 10 minutes customizing their generic responses to discuss their expertise with issues like ours and clients like us, they would have won the engagement in a walk.  It’s also germane to note that neither Firm A nor Firm B exactly overwhelmed us in the personal interviews with their intimate knowledge of situations like ours.

Firm C, however, may have taken the cake. Their response was to send back a six-page engagement letter, including two pages of pre-printed boilerplate in fine print (well, it is tiny print). The entire substance of the “Scope of Work” identified in the letter was “zoning.”

The fine print – OK, I read it; I am a lawyer – informed us of such “delight the client” tidbits as:

  • fees and costs are not predictable and accordingly the Firm has made no commitmen to Client concerning the maximum amount of fees and costs necessary;
  • staffing of the matter may change at any time within the Firm’s sole discretion;
  • one-tenth (0.1) of an hour is the minimum time recordable for any activity; and so on.

My partner, Janet Stanton, felt compelled to weigh in:

The engagement letter from Firm C (a firm you all know) has all the charm of a utility bill.  Let me emphasize that they entirely skipped over the step of responding to the reasonable questions posed by the committee and went straight to an engagement letter.  An oversight in the haste and press of business?  Hard to believe.   Presumptuous?  You bet.

I have to take some issue with Bruce’s comment  that in a competitive bake off, firms might be reluctant to “over-invest” in customized responses.  I hasten to note that there is virtually no customization (and nary much humanity) in this letter.  When better to invest a little extra time than when a firm is competing for the business?

Back to the engagement letter.  Does this firm (and presumably others) not realize they’re dealing with human beings?  That the issues raised by St. Michael’s are of significant consequence to the church and its parishioners?  Evidently not.  What many lawyers forget is that most people would prefer to never see a lawyer.  It’s nothing personal – it’s just that often this means something bad has happened or is a distinct possibility – and there’s likely to be a big bill attached.  Empathy can go a long way.

This letter unfortunately confirms what many think of lawyers and law firms (which I happen to believe is  untrue) as heartless and rapacious (aren’t we all tired of lawyer jokes?).   It would hardly rise to the level of “over investment” to reference the issues and address the recipients in more personal terms.

To say this left the St. Michael’s team nonplussed would be an understatement. I actually wondered if we shouldn’t double-check back with Firm C to see if that was all they meant to send, but one of my fellow committee members took a much harder line:

After many years of working with contractors, both as an IT executive and then in supply chain, I firmly believe that when vendors do not respond to an RFP as requested, it says that they will do what they want to do, not what the client wants. I have seen this pattern repeatedly – we went for the firm with the better name or more likable people only to be sorry once we were under contract. Vendor selection is like dating – if they do not treat you with respect now, it is not going to get any better when you’re hitched.

You might imagine law firms responding to RFPs would think their overriding goal should be to make it easy for the client to select their firm. If this sample of three is any indication, they seem to be operating under some alternative assumption, although it baffles me what that might be.  Each in their own way made it harder for us to pick them.

Of course, readers of Adam Smith, Esq. all know better.


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