Is the legal department just about 'firefighting'? Or should time be allocated differently?
That’s really a personal choice – it doesn’t have to be but equally resourcing and how you prioritise work will determine how much firefighting you have to do.
Legal teams are always going to face resourcing challenges (there is rarely a function with too much resource) if you don’t take time to consider what the organisation really values and what has the biggest impact then you will probably always be in reactive mode at best or constant firefighting at worse. Some people may enjoy that but not everyone will and it's not sustainable in the long run.
Chris Fowler - Chief Operating Officer - Legal, Rio Tinto
In short? Sometimes, and yes! The nature of the in-house counsel is inherently one of firefighting – after all, we and the wider business could never predict everything that (1) comes our way, and (2) could go wrong!
So time does need to be available for this reactive element of the job. Even so, just as much (if not more) time should be allocated to the proactive element. Not only does this help with things like risk mitigation, having enough time to work on a project, strategic management etc., but it also means that, overall, there should be less firefighting to do in the long run.
What does being proactive mean, though?
In my experience, it’s the likes of preparing and updating business-wide templates at every chance, upskilling and training various teams, briefing your organisation on recent and upcoming legislative changes and case law and, perhaps one of the most valuable, asking your stakeholders what they have coming up in the pipeline. That last strategy can be a great aid in ensuring the GC is around the table at minute number one, and not at the eleventh hour only .
Gethin Bennett - Assistant Legal Counsel - The Royal Mint
Arriving into a role it may sometimes feel like this and, if it is, then you should work to make this a transient state as, in parallel with the firefighting, you make the time to seek to take the strategic steps to move from just fighting the fires to putting the “fire breaks” in (identifying what is causing the problems, training the business not to do it wrong again in future) so that the causes of the current fires (poor practices, behaviours, understanding of law and regulation) cannot perpetuate into current and future business activity.
Then, while the future is getting ever more reliably fire free, you can, in parallel focus on permanently extinguishing the existing fires (litigation, disputes, regulatory engagements, broken processes causing non-compliant outcomes etc).
After that, while things will still go wrong, you can start to move from Garbage Correction, to Good Collaboration with colleagues to help to ensure compliant successful forward looking business activity and, if you are lucky, a bit of Genius Channelling – helping the best and brightest of your colleagues to develop the new ideas, products, services and processes that will transform the business.
And this, in a well-run business with a good legal team, is where you should aim to be in the medium term, no matter where you started out, as our job of helping the business to take informed and accountable decisions at their level of legal and regulatory risk appetite should be as planful, collaborative and positive as possible if it is to maximise the long term benefit to the business of having a legal function.
In recent years, the scale and number of in-house legal departments has increased significantly. Many more organisations have come to decide that they need an in-house legal resource, while others have extended the work that they do.
And yet the most frequently heard complaint is that in-house teams don’t have time to do what they feel should be their real role and are spending substantial amounts of time in ‘firefighting’. They are dealing with issues which are doubtless urgent, and often important, but often they are symptoms of the real problem, rather than the problem itself.
What this can mean is that the lawyers can be dealing with disputes rather than helping the organisation tackle the causes of the problem. They may be covering repetitive issues in contracts or transactions because it hasn’t been possible to focus on what the organisation’s standard-form contracts ought to cover. They can be missing the ‘bet-the-company’ problem which is just over the horizon because they aren’t able to focus on regulatory or sectoral developments, or to understand what is going on in the organisation.
In other words, while the department can be focused on day-to-day work which needs to be done, it may not be focusing the skills of the in-house team where they can best be utilised. There may be a saving in cost in dealing with the problem compared to the cost of outsourcing it, but the problem will recur, and may well lead to greater issues, with cost and risk implications.
Add to that the fact that in some in-house teams, there isn’t a real understanding of what work is being done. Some teams do time-record and use that as a means of recharging time to different parts of the organisation, but often the results are not analysed to see if there are problems which can be tackled or solved at source. There may well be an imperfect understanding in the organisation of what the in-house team is for, or why it was recruited, and in some cases, it will just be seen as a cost centre, brought in-house to deal with work more cheaply than before.
The result can well be that the legal resource while appearing to fight a problem, is not being used to the best effect. Tackling the symptoms may well simply mean that the problem will increase – if for example, the organisation has poor employment procedures and HR resources, it will continue to generate employment claims. Equally, members of the legal team will likely feel under pressure, under-resourced, and under-valued. They can be seen just as a commodity resource to deal with a day-to-day issue, not as a strategic and knowledgeable source of advice, direction and skills. Staff turnover can be high, with colleagues deciding to go where they feel their skills are better utilised.
There is an alternative. The preparation of a detailed legal strategy for the organisation – setting out what the team is for, how it goes about its work and how it fits into the organisation – is a very worthwhile and important step. It achieves buy-in in the organisation to the work of the team, and if coupled with a formal legal exposure plan to communicate what it does – and how to get it known and appreciated across the organisation – the role, profile, and esteem of the in-house department can be transformed.
There are extensive CLL resources which can help you to draw up a legal strategy and exposure plan. Why not check them out now and take the first steps away from firefighting?
Richard Tapp - legal sector specialist
Striking the balance between reactive “firefighting” and ongoing legal advice and training is rarely under the in-house legal team’s control.
Inevitably, immediate and serious legal issues have to come first. Litigation or regulatory interventions have a lot of non-negotiables in terms of volume and timetables. But carving out time to contribute to the business’s compliance and risk management approach can sometimes prevent fires starting in the first place. And it can certainly have more force and take-up if it can be rooted in previous crises either at home or in the wider market.
Keeping the BAU advice going is important because it’s what builds the knowledge and trust between the in-house team and the business it serves. And it can help build processes which factor in timely consultation with the lawyers – which again, can sometime mean sparks don’t become raging infernos .
How to go beyond firefighting
Firefighting can happen where teams do not have the opportunity to think about how they want to approach their work. Specifically, what work stakeholders need, when they need it and how the team can best provide it.Firefighting can be a cycle and a drain on resources
For teams in this situation, it can be draining. Where I have seen it happen in the past it has not been sustainable. The key problem is that firefighting is a cycle which sucks in the energy of the team to deliver work within short timescales.The cost of this is stress as the team cover an unnecessarily wide range of work. Unfortunately, the hardest working team members suffer the most and client expectations are at risk of not being met.
Breaking out of the cycle by prioritising important and urgent work
What I have seen help in the past has been for the team to decide what work is important and urgent.Important work could be work that fits into the following categories:
- Fundamental to business strategy.
- Stakeholders have gone public with go live dates.
- If the work is not delivered it may cause a business or regulatory impact.
- The work is fundamental to a good customer experience.
- Delivery of the work is likely to achieve costs savings or increased opportunity for revenue.
Many teams will delegate urgent work to team members who are not at capacity on important work or to their external firms.
Streamlining work by eliminating non-essential tasks
Two key questions are:- Can the work that does not fit into the important or urgent categories be dropped altogether?
- How this can be done?
Going through these two questions can be a way to make sure the right team members are working on the right work at the right time. This approach can put teams in the best position to go beyond firefighting to implement more strategic and proactive legal support.
Jonathan Friend - Senior Lawyer, Information Rights, BBC