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 Process Mapping Primer 

Week 12. Each week via the In-House ACCess blog, follow the promise and pitfalls of forming a new value-based client-firm relationship. ACC Value Challenge steering committee member Ken Grady, General Counsel and Secretary of Wolverine World Wide, offered to profile his selection and start-up process of launching a trademark portfolio management engagement with law firm Seyfarth Shaw. Ken's co-blogger is Lisa Damon, a member of Seyfarth's Executive Committee and leader of the firm's efforts to incorporate Lean Six Sigma into its business. The voice, views and stories expressed by the authors below are their own and not ACC’s. To catch up on the story so far, click here.

The client side

From Ken:

Lawyers are idiosyncratic workers. We do things differently when you compare one lawyer to another, and we do things differently when you compare how we do the same thing from time to time, such as preparing contracts. We justify much of this idiosyncratic behavior by claiming we do bespoke work – each time we do a case, contract or other matter, it is unique. Our idiosyncrasies, however, make us very inefficient.

We have designed the Wolverine/Seyfarth partnership to reduce process variability, using the SeyfarthLean techniques, so that we each become more efficient in providing legal services to our client. To know what Wolverine does today, we will make process maps. A group of two to eight individuals, drawn from both entities, will brainstorm and capture each step in a current process. In the old days, we did this by taping a long piece of butcher paper on the wall and noting each step in the process sequentially along the length of the paper. With all the mistakes, corrections and additions, it was busy when we finished. Today, Seyfarth does the same thing using computer tools that make the result much cleaner. Using the process map, we then (1) simplify steps, (2) weed out unnecessary steps, (3) re-sequence steps, (4) standardize steps and (5) create tools for steps. Each time we change the process, we update the map. We pull from a variety of metrics to measure our improvement – e.g., overall time to complete the process or number of steps in the process.

An obvious place to start with a trademark portfolio is the application process. The client sends an e-mail asking about the availability of MARK for use with a product. The in-house paralegal does a quick screening search and e-mails back saying that it looks like it is available, and asks whether she should do a full search and how the client will use the MARK. The client emails back saying yes to the full search, and gives a partial answer on use. The paralegal e-mails the outside paralegal requesting a full search. The outside paralegal requests the search and sends the outside IP attorney the results. The outside IP attorney has some follow up questions and sends them to the in-house paralegal, who in turn sends them to the client, who in turn responds to the in-house paralegal, who in turn responds to the attorney. Draw a line on your yellow pad and put each of these steps in sequence. Congratulations, you drew your first process map and already see several ways to improve the process. After each iteration, we want to achieve a steady state. That is, we want a defined process that we will repeat each time we do an application keeping variability to a minimum. One benefit of this technique is that you can apply it endlessly to any given process, always finding room for improvement,

We still can be brilliant lawyers. We just exercise our brilliance at the right time in a defined process that eliminates the unnecessary steps that cost our clients more, but don’t add value.

Next: So what is the status of those fee discussions?

The firm view

From Lisa: 

Ken has delved into the world of process mapping in his post this week. Okay, we love process mapping. We use this Lean tool often at Seyfarth -- we use it in very complex matters and those that are more repetitive. We may do it electronically, on a white board or even in our heads -- the trick is that it is a way to think about a problem.

When we first started working on process mapping, there was some resistance among our lawyers (and from me, as well). "Every matter is different," I kept saying. "This is complex litigation. How can we know what will happen?" We also heard: "My M&A work is highly specialized; a process map won't work." However, as we began to refine what we thought what a map could be and how we put it together, our lawyers began to see the magic of the tool. We think of our maps as "guides." We know that every legal matter is different, but we use maps to think through strategy, to organize our resources, to spot inefficiencies and to refine our strategy. They have become for many of our lawyers a true strategic tool as they think through complex issues for our clients. A quick plug: If you want to see how this works in real life, Ken and I will be doing a session at the ACC Conference, where we will have the audience on its feet, using a number of Lean tools, process mapping included. If you are coming to San Antonio, join us for some fun.

Another tool that we love to use to think through an issue is a "root cause analysis" tool. This can really force you to think beyond immediate problem-solving by requiring you to stop, think and ask tough questions. One of the tools, in fact, is called the "5 Whys" because it essentially demands that you probe for the root cause, using a series of "why" questions.

We also use other tools to guide our thinking. We find that other tools -- fishbone diagrams, for instance -- can be useful in working through client and internal issues to help identify the right solutions. I used one in a complex internal investigation last week, and it enabled me to get to an efficient solution that worked at the heart of the matter, not the periphery.

As we have said before, Lean gives us a way to think, a different approach to the practice of law. The tools support the thinking; they allow us to analyze and solve problems more efficiently and effectively. We would love to hear what kinds of tools and disciplines you are using. Let us know.

Next: A fee update and Ken teaches Seyfarth

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 The grocery-strategy connection

 Week 11. Each week, via the In-house ACCess blog, follow the promise and pitfalls of forming a new value-based client-firm relationship. ACC Value Challenge steering committee member Ken Grady, General Counsel and Secretary of Wolverine World Wide, offered to profile his selection and start-up process of launching a trademark portfolio management engagement with law firm Seyfarth Shaw. Ken's co-blogger is Lisa Damon, a member of Seyfarth's Executive Committee and leader of the firm's efforts to incorporate Lean Six Sigma into its business. The voice, views and stories expressed by the authors below are their own and not ACC’s. To catch up on the story so far, click here.

 The client side

 From Ken:

Nutritionists have told us for years that we should develop a strategy before we go grocery shopping. We should plan our meals for the week, deciding what we will have at each meal, and how to do things like sequence the meals to use leftovers. From that plan, we should develop our grocery-shopping list. If you are efficient, you group items on your grocery list according to where the store places those items. When you go shopping, you move efficiently through the store, without backtracking, and you buy only what you need. You don't go shopping when you are hungry, and you don't give in to the temptation to buy those goodies in the checkout aisle.

Lawyers love tasks and checking things off lists, but as much as we advertise our strategy skills to our clients, we often neglect that step ourselves. We don't develop our strategy before we dive into the tasks. Of course, we do use strategies from time-to-time, usually for lawsuits, acquisitions and other transaction events. However, typically, we don't develop strategies for routine work.

For the Wolverine trademark portfolio, Wolverine and Seyfarth are working to develop many strategy tools. These tools will guide our decisions on issues relating to each mark, streamlining pieces of the decision process that today are ad hoc.

We want to make decisions up front about what to do in various situations and know where marks fit into our portfolio before we are confronted with the question. For example, we want to know the relative importance of a mark, and which countries are more important for that mark -- based on factors such as sales levels, related marks and counterfeiting risk. We want to have a strategy for customs surveillance, and a strategy that ties the mark to our domain name strategy. Using these and other strategy tools, we can make decisions quickly. If something pops up on a watch list, we know whether that country is important for that mark, and that guides the decision about what effort to put into a response. We avoid ad hoc decisions that result in our buying things we don't need.

Doesn't it take time to develop these strategy tools? Yes, but not a lot. Once we have the template, the time is in filling out the templates with the assistance of our client. The savings potential is enormous. It can cost thousands of dollars to oppose a proposed registration of a competing mark in one country. If we decided that our mark in that country is not strategically important and we avoid spending the thousands of dollars, then we probably covered the cost of the strategy process for the mark. We avoided the temptation to buy something in the checkout aisle and stuck to our original strategic shopping plan.

Next: Developing a map to the future.

The firm view

 From Lisa:

Ken's entry this week talks about developing a strategy before you act. For us, Lean Six Sigma helps provide the discipline for that step.

When I look at how Lean has changed my life as a lawyer, one of the keys for me has been to develop the discipline to stop and think before returning to business as usual. Ken talks about this step in the trademark area; for us, it is a step we try to use in every matter across the spectrum.

A key feature of Lean is DMAIC, a structured way to look at a matter and plan an approach, a strategy. This discipline asks you to:

·       Define the problem first -- what are you trying to accomplish? What problem are you solving? It mandates talking to your client, standing in his/her shoes and understanding the issue.

·       Next, you Measure. Look at the information/data that you have available (not relying on your "gut" or on the way you have always done something).

·       You then Analyze and Improve -- or implement -- the strategy or the solution.

·       The “C” stands for Control, which is the discipline of not going back to the way you have always done something, not returning to "business as usual."

Using DMAIC as a framework for the way you think about a legal problem can be no more than a quick mental ‘stop and check’ before you begin a project or a longer more involved discussion. The important thing for me is the pause to think, to consider and to plan -- the strategy that Ken talks about.

Lean provides other tools that I find useful in the world of lawyers -- for instance, the concept of looking at the root cause of problems and the tools designed to help you get there are ones that I use frequently -- not just in law, but in my like life as a manager of people. Too often, instead of stopping and analyzing, we jump to a solution -- lawyers are trained to solve problems. Again, Lean gives us the discipline to stop and consider: Are we really solving the root cause, or are we simply putting a bandage on something that won't last or won’t truly solve the issue?

Like effective project management and process design tools, taking time to plan strategy on the front end almost always saves time on the back end. I believe that strategic planning is not a luxury or an option to use only when time permits, but instead, it is a step that should always be integrated in my thinking -- whether I'm planning the trip to the grocery store or planning a much more complex project for one of my clients. I guess that all of those law school professors were right in the first place: Keep your pencil down in an exam until you have planned the answer!

Next: Working with Ken to map out strategy

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 “Automating broken processes won't make us smarter; it can make us stupider faster.” ~ Steven Levy

Participating in a panel discussion at the International Legal Technology Association (ILTA) conference last month was yet another opportunity for me to engage in a discussion about the ACC Value Challenge.  But, instead of speaking to in-house counsel and law firm partners, this time I addressed technologists.  It was an excellent opportunity to discuss IT’s involvement in the initiative to close the gap between the cost of legal services and the perceived value clients received from those services. 

Tim Corcoran (Altman Weil), John Alber (Bryan Cave) and Constance Hoffman (Bryan Cave) provided a number of practical examples culled from their own experiences, explaining how technologists can play an integral role in strengthening the relationship between law firms and their clients. The questions from those in attendance reinforced the significance of this group’s involvement in the ACC Value Challenge.

Steven Levy, principal of Lexicon Steven Levy & Associates and former senior director of Microsoft’s Legal Information Systems Department, addressed this same topic in a recent Law Technology News article by focusing on trust and productivity. Levy discussed 10 ways IT Departments can work together with their law firms to “deliver more value,” and in doing so, he honed in on how an IT department can not only assist its law firm in strengthening the relationship with its clients, but also help it to be more responsive - and proactive - in this effort.

One of Levy’s suggestions resonated with me: Don’t Automate Broken Processes. Improving processes should not be confused with moving things around to just look different.  This does not work.  I often hear, “Sure things are different, but they aren’t better.”  Technologists need to listen to their lawyers to hear what it is the clients want and how they can help the firm change systems to achieve that goal.  By conducting internal reviews, such as document management system assessments, data can be analyzed to actually improve productivity and not just “shuffle things around.” 

Indeed, it’s a two-way street and the weight of this endeavor should not be dropped on the IT Department’s shoulders.  Lawyers must convey the information correctly and provide their technology team with the necessary information to effectively implement these changes.  The IT Director needs to ask the right questions, repeat the issues and concerns and confirm what he/she believes the intended results should be.

An even better solution would be to bring the IT Director into client meetings. As Hoffman noted during the ILTA panel discussion, she has been involved - on the front lines – working with Bryan Cave clients to identify needs and determining the best practical applications to ensure success.  Her intricate knowledge of the technology involved enables the firm to be better prepared to not only respond to client requests, but to also appreciate how working together can strengthen the relationship between clients and firms.

By involving IT in the process – from the start – law firms are better equipped to manage client expectations.  As Levy so aptly noted, “Unlike Wine, Bad News Does Not Get Better with Age.”  Law firm attorneys cannot afford to be in the dark, nor can they keep their clients in the dark.  When an open dialog between attorneys and technologists exists, there should be no surprises.  No surprises means keeping clients abreast of the progress – and the delays. For those of us who travel frequently, we know the feeling of sitting on a plane, delayed on the tarmac … wondering what’s causing the holdup.  When the pilot explains that air traffic control has delayed our take-off by 20 minutes due to incoming traffic, our expectations are managed and we can relax.  Without the pilot giving us an update, we’re left to fret and to worry (or get agitated!). Being honest, upfront and providing assessments throughout the process ensures a win-win for all involved.

An underlying principle of the ACC Value Challenge is to “promote a dialog among corporate counsel, law firms, law schools and others who are interested in driving an alignment and focus on value.” The success of the initiative encompasses the participation of everyone within the legal services industry.  The ACC Value Challenge is not a “silo” initiative where everything is compartmentalized. It’s an initiative based on collaboration and sharing, and IT’s role cannot be overemphasized. Value is in the eye of the beholder and without effective communication and sharing, this, too, will fall into the bucket of automating broken processes that yes, “will make us stupider faster.”

Frederick J. Krebs

Next Up: The Chief Marketing Officer’s Role in the ACC Value Challenge

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Enormous effort has gone into attempts to construct billing arrangements that reflect a law firm’s contribution to a case because of the belief that hours spent was not necessarily a relevant indicator of that contribution and may actually create an incentive to distort billings. In-house lawyers have often had to argue about the value of their contribution to a company’s business objectives, often hiring firms like Altman-Weil and others to create some measureable criteria to support the value of their contribution.

Recently, I vicariously experienced that real way value billing should be done, and perhaps was done when the legal community was more closely connected to their clients. Yes, constructs of value billing it appears are necessary when the value of a lawyer’s contribution is not obvious to his or her clients. Hourly billing is a necessary construct when the need to support the law firm predominates over the objective of providing valuable services.

These facts became clear to me when a former colleague, now out on her own, called with a great deal of excitement to tell me about a recent experience with her client. Her client called to say he had not received a bill. She responded that she had just sent one out billing at a certain hourly rate. His response is that it was his intention to pay a larger amount, not based on the hours spent, but on the value she contributed to the business transaction. Both pleased and surprised, she called to share this experience with me.

I am sharing it with you because that is the objective to which we should all strive. Our contribution should be obvious to our clients as our outside counsel’s contribution should be obvious to us. When there is a sense of disparity with our in-house expenses or the bill from our outside counsel and the payers’ sense of the value that it represents, we have to think about why my colleague was able to obtain higher fees without even asking for them. What was she doing that we are not doing or our outside counsel is not doing?

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I must admit that I seldom look at my law school’s magazine. I generally find these self-promotional efforts a little tedious, and given the number of schools that were attended by my wife and kids we are deluged by these periodicals which never focus on the serious issue of how to get costs down and quality up, but seem to promote an underlying premise which is we will tell you how great we are and you will give us money.

However, in the last issue of the Gargoyle, the publication of the University of Wisconsin Law School, there was a note on program involving internships at law firms in Asia. It caught my attention initially because I thought this was a response to the declining access to internships in the US. It was not, although who knows what the future will bring.

The program has apparently been around for a while. When I was there a foreign internship was Denver. Although it was and still is small in size, for someone like myself who worked for a global company, tried cases in international forums, tried cases involving significant international disputes and worked daily with colleagues around the world, this program has a real potential of beginning to change the focus of legal education in this country which has tended to focus on our legal traditions as the only game in town.
 

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The situation:

•    The economy is in recession
•    Businesses of every size are being impacted
•    Internal staff is being asked to do more with less
•    Layoffs are a matter of fact.

It should be no surprise that this slump is impacting the legal industry. Many blog sites, including the Wall Street Journal and Above the Law, have daily posts on staff cuts and other changes in the marketplace. Numerous surveys indicate a gap between in-house counsel and outside counsel. Where is value and how does it relate to annual spend?

On April 13, 2009, I had an opportunity to attend my second ACC Value Challenge event. Unlike nearly everyone else in the room, I’m not an attorney. My background in the legal industry and understanding of law firms gives me an interesting perspective of the two somewhat differing worlds. In attendance were a number of law firm partners and in-house counsel, including a number of general counsel from local corporations.

My twitter stream (@time2simplify) had a few gems:

One attendee recognized that the ACC Value Challenge event is being held at the Ritz-Carlton... many lols. "best place at best price"

Both law firms and in-house departments share a similar problem: Desire to impact the bottom line is shared by both managing partners & CFOs

Take-away items from the event include:

• One definition of value: Good work – and perhaps value - is not over-lawyering (defined as anything that is not needed and appropriate)
• How are attorneys using technology? Extranets, e-billing, and knowledge management were a few examples.
• If the golden gate bridge can be built on a contract, couldn’t a large legal matter?

So legal community, what’s your point of view?

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This is a guest post by ACC Board Chair, Ivan Fong. This was originally published in the December issue of the ACC Docket.

As I write my first ACC Chair message, the headlines are grim, relentless and frankly depressing: major companies announcing layoffs, cutting budgets and some even seeking government rescues. The global economy is interconnected and hence unavoidably in distress. We have a new president faced with unprecedented domestic and foreign policy challenges. I have no doubt that you, too, are worried about how the turmoil will affect your organization.

Despite these difficult times, it is important to remember to maintain perspective, pause, and reflect on our priorities. What should our priorities be? Let me offer three: First, we need to continue to provide the highest quality services to our corporate clients in the most efficient way possible. Second, as “gatekeepers,” we must remain vigilant on compliance matters and be pro-active, preventive, and protective of our clients’ reputations. And third, we must continue to build culture and community within our law departments, companies, broader communities, and family and friends.

The good news is that ACC’s resources can help. As part of this global association, you have unlimited access to best practices. Advice and guidance from other in-house counsel is readily available: MemberToMember, local chapter programs, committee
listserves, and webcasts , are here to connect you. Looking to delve in deeper on an
issue? Save time and money with ACC Docket articles and InfoPAKs^SM for substantial information on the issues you face. ACC’s surveys, and subsequent benchmarking data provides meaningful insight.  For those directly affected by the economy, ACC also has excellent job and career resources, ACC Jobline^SM.

With increased scrutiny on budgets also comes an imperative for in-house counsel to review and evaluate outside counsel spend. The ACC Value Challenge, a new initiative to reconnect costs and value for legal services, will help to drive an alignment of interests with a focus on high value. Toolkits are available for in-house counsel and law firms to help drive change in the performance of value-based legal services. You, too, can become engaged with this community, help enhance awareness, and communicate success stories.

I have had numerous conversations with ACC members and many agree that this economic storm will pass, though it may take some time and cause painful dislocations. An ACC Board Member commented recently that, “How you’ll be judged after the economic storm is over is by how you handled the storm itself.” We cannot, therefore, lose sight of the things that really matter: credibility, integrity, courage, and community.

Einstein said it best with his three rules of work: “Out of clutter, find simplicity. From discord, find harmony. In the middle of difficulty lies opportunity.” Take advantage of all that ACC has to offer, and don’t be dissuaded by the added scrutiny; don’t despair in the face of challenges; confront them, and through it all, look for the opportunities. If you have any thoughts or suggestions for how ACC can help you—and its 25,000 members
worldwide—please send me an email to acc.chair@acc.com.
 

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