They must not only consider what legal issues affect the organisation so that they can be proactive in their work, but also determine how to ensure that their legal know-how and advice is presented in such a way that it influences the way the organisation works as a whole. In short, they must embed legal considerations in the organisation.
To do this, the in-house lawyer will want to consider how to use the organisation’s own resources – both through helping the organisation to help itself, and through using the organisation’s own specialists. They will also want to consider providing training for non-lawyers on legal matters (see Designing Legal Training for Non-Lawyers) .To make the use of such resources and training most effective, though, the in-house lawyer will want to consider operationalising law.
What do we mean by ‘operationalising’ law?
Essentially, the concept of operationalising law is embedding the consideration of legal issues throughout the organisation. It is best considered at two levels – the strategic, structural level, and the day-to-day operational level.Strategically and structurally, it will include the assurance that legal issues are considered at the right time and the right level. It will mean that in-house lawyers have a seat in the senior team, that they are aware of issues and concerns as they arise, and they input into the organisation’s strategic development.
At the day-to-day level, operationalising law means the development of a framework and suite of materials which non-lawyers can use in your organisation to deal with certain legal issues. It doesn’t, of course, mean that they will be turned into lawyers, nor that they can make decisions on complex legal issues. It does mean, though, that they can develop documents to deal with a range of the more usual issues impacting an organisation, such as contracts, and they can follow through a matrix of responses in dealing with questions from customers or stakeholders which may involve legal issues.The framework and suite of materials may include the development of core documents into a playbook with a series of options which may be adopted. It will almost certainly include trigger points and red flags to ensure that when problems arise, things are referred to the lawyers, and of course it will definitely include arrangements for monitoring and reporting the way the arrangements work.This article will look at how you might consider operationalising law at the day-to-day level in an effective way.
What can be operationalised?
Typically, you will seek to develop materials which can be used by colleagues within the organisation largely without reference to the legal team. They are likely to cover areas which come up frequently in the organisation, and are relatively routine in nature. These might include:
- Contractual documents relating to your regular business activities, including sale of products or services, terms and conditions, procurement and supply documents.
- Non-disclosure agreements, where their use is appropriate, such as in relation to business.
- Employment agreements such as contracts of employment, variations relating to fixed term arrangements, change of role, hours or work or location.
- Property documents including leases, variations and licences.
- Technology, and
- Licenses.
In short, you are looking for areas where the organisation regularly uses particular documents, where there is either a completely standard version which is used without amendment, or where amendments and variables can be identified and categorised in a way that a user can understand not only what variations can be made, but why, and what the implications are of any changes. You will also want to make sure that you are only allowing variations and changes which are appropriate, and that any issues are flagged so they can be dealt with by the legal team and senior lawyers.
How to make a start?
All this may sound like a document automation exercise. It isn’t. To be clear, there is nothing wrong with document automation. It has been used effectively for some years, allowing simple documents to be standardised and automated so they can be issued more effectively – for example straightforward employment contracts where the only real changes might be the names and addresses of the employee, hours of work and the like.
In order to operationalise law, it is necessary to understand – really understand – what you do, what you are trying to achieve, and what you want your non-legal colleagues to do. If you have a legal strategy (see Framework for an in-house legal strategy ) it is a very good starting point to understand what areas may be appropriate to operationalise. The exercise isn’t entirely – or perhaps even mainly – a legal one. It needs to involve your colleagues, so that you can determine what is intended to be achieved by the process, when, how and by whom. It needs to be dissected so that each step is understood and considered – is it the right step, can it be simplified or improved, can it be made easier or quicker – and then reassembled into an agreed and defined process. If not, you may want to consider devising one now.
In any event, for the areas you are considering, you will need to prepare a detailed analysis – effectively a process map – setting out each of the stages of the process you seek to operationalise. You will also need a base, standard, document in each case, together with the various amendments which you may wish to allow to be made, and the variations (such as parties’ names and other details) which might be included.
If you aren’t confident that you have a sound base document, and sets of amendments which you would want to allow to cope with different scenarios, then you should settle the document and amendments before you go any further. Operationalising the ‘wrong’ document or amendments will create more work in the future, both by creating confusion with your colleagues who are seeking to work with it, and in trying to interpret or resolve an issue in a document which may not make sense. If that sounds far-fetched, sadly experience shows that it isn’t! Do start by getting the document right.
Documenting the process
You may well find that your organisation has process-mapping skills already in place, for example in a business improvement or strategy team. If so, you may well find that they are willing to help you. For each process you want to automate, you will need to understand each stage in the transaction – how it begins, what authorisation it needs, what variables exist and why, what documents are to be produced and what is to be done with them, as well as being clear on what record-keeping and reporting is appropriate. For example, you will want to understand what amendments are being allowed, why and by whom – are different people seeking to make different amendments for the same circumstance, for example?
Increasingly, technology is available to automate not just the documentation, but the whole process. Contract analysis and assembly software is available and in increasingly common use, and the best of the new generation of software allows the assembly of documents through interactive applications which take account of a wide range of variables, and also include monitoring, reporting, and exception reporting functions so that you have real-time data not only on the use of the package, but the use of the various different options, and exceptions.
What are the goals of the process?
If designing and refining the process is something within your control – as with the drafting of the core documentation and variations – the success of the operationalised process is down to its acceptance and use by colleagues within the organisation. It isn’t possible simply to launch a new process and hope that it works and is adopted. A communication plan will be needed, well in advance, to ensure that people know what is coming. Training is key – and this is not so much about training in legal concepts – but in the operation of the new process. Both communication and training will take much longer and much more resource than you might expect – remember that you are looking at the process from the viewpoint of the specialist, whereas you need to think about it from the perspective of a non-specialist colleague looking at it for the first time.
Monitoring, measurement and reporting
One of the advantages of an operationalised process is the information which it gives you about the process and the organisation. You can generate immediate and useful information about the business, data about the legal issues involved, and information about how the organisation learns. If your legal team has formal quality or measurement systems such as ISO 9001 or Lexcel, you may be able to relate the processes you design so information is available for the quality system. Even if you have not formalised your legal systems to that extent, you will be able to create and report key performance indicators in a way which is aligned with your organisation. As well as managing legal risk, this may well mean that you are seen to be doing so in a way which dovetails with the organisation’s own reporting, further integrating legal into the organisation itself.
A word about process design
If you have a senior or professional role in your organisation today, you will probably be familiar with the use of organisational systems which you are required to use for HR, finance, procurement or other organisational needs. Many of them are used where in previous years, you would have liaised with a member of the relevant professional team directly, and they would have actioned the process concerned.
You will know that some such organisational systems are easy and user-friendly, while some are not. Remember your own reactions to having to use such systems – are you filled with dread when you need to register an HR change, apply to purchase something for your role, or even record your holidays? Those are reactions you need to avoid in designing and implementing your legal processes.
As suggested earlier, you may be able to use process specialists within your organisation or from external providers. Often, a legal team’s reaction to such a suggestion is that there is no budget for such things – which is likely to be true. However, if the introduction of an operationalised legal process reduces the need for referring day-to-day issues to the in-house legal team, and frees up lawyers to do the complex work they trained for, then there can be a significant saving in overall cost and you should be able to prepare a business case. Equally, if you have a legal operations function, it can look at such process issues. Whichever approach you choose, do consider whether formalised processes could allow you to achieve overall savings and improvements in productivity and efficiency.
Almost all lawyers have been trained to give one-to-one advice, to work on individual transactions, and perhaps to prepare standard documents which are used in an organisation with little further day-to-day interaction.
Yet when we practise in-house, we are almost certainly practising in an environment which adopts business tools and techniques throughout its operations. Operationalising law is no more than using those same tools and techniques, where appropriate, to improve the way we practise and to do so more effectively and efficiently. Not only should this improve the reputation and integration of the legal team within the organisation, but it has the potential to free the in-house lawyer from dealing with work which is routine, of low value, or inappropriate, and to give the lawyer much greater satisfaction from the role.
Often there may seem to be obstacles to such improvements, but dealing with them will be well worth the effort. Why not make a start now?
Some further reading
CLL Resources:
Using the Organisation’s Resources: Part 1 – helping the organisation to help itself
Using the Organisation’s Resources: Part 2 – using the organisation’s own specialists
Framework for an in-house legal strategy
Operationalising law: Part 1 – the strategic structural level
CLL FRAMEWORK OPERATIONALISING LAW (PDF 54 KB)