There may already be an established process by which those clients interact with the legal team but which you will want to review and assess.
Or, you may have been appointed following changes in the organisation, or the legal team, with the specific intention of doing things differently.
In this article, we suggest a framework for creating a legal strategy and consider 10 important things to think about.
1. What is a strategy?
With any number of theories and models out there, you may be forgiven for thinking that strategy is a complex business. Whilst it does take some work, it needn’t be complicated. In getting to where you are now, you will already know a good deal about having a strategy for dealing with your own work by setting objectives and goals and meeting the needs and expectations of your colleagues. Building on this, we suggest that you ask yourself three questions, and then act on the answers: -
- What are you there to do?
- Where do you want to get to?
- How will you get there?
2. When to start?
It’s tempting to put off the work involved when you’ve got an in-tray full of legal and other issues. However, there will always be urgent matters that call for your time and attention and you may never get to that point when you have more ‘thinking time’. Further, strategy matters as it means looking at the purpose of the legal team and the way in which you provide legal services to your clients, which is pretty fundamental for any in-house team. In our view, creating a strategy is a key leadership task, providing both clarity and direction to clients and the legal team itself.
3. Start where you are
In creating your strategy, you’ll want to first take stock of where you are now. Consider (and record): -
- What are the key goals of the organisation and of key clients in the current period and beyond?
- What are the needs and expectations of the board, senior management and key clients regarding the impact and management of legal risks and role of legal advice generally?
- What legal services are provided to the organisation, by whom and how are they paid for? What’s the mix between in-house and external resources? Who controls legal spending?
- What skills and resources do you have in-house and externally and where are they currently focused? How are changing business requirements met – outsourcing, recruitment, training etc?
4. What’s the budget?
Your strategy for delivering a legal service will be shaped by how much money the organisation will spend. You may have been brought into the role to impose some structure and control over legal spending in the organisation and, in any event, this will be a key objective of the head of the legal function.
Your review of the current arrangements will expose whether there is a lack of value in the way that legal services are commissioned and delivered, including where undertaken exclusively by external providers (if you are the first in-house lawyer).
You’ll also want to look at how legal services are commissioned i.e., who instructs the internal and external lawyers and whether this provides the best outcomes based on overall value to the organisation? Value is not just about cost but also considers whether legal services are being utilised in a way that best supports and protects the organisation.
At the end of the day, you’ll need to be in a position to say what you think the legal budget should be and where it should be controlled and managed. This is an ongoing process that should be incorporated into the business planning arrangements in the organisation generally.
Whatever budget you determine to be appropriate for meeting the legal needs of the organisation, it is likely that it will be subject to challenge and pressure to reduce it. Consequently, you should be prepared to negotiate as the legal budget and ultimately compromise in your budget, as it will be subject to the same pressures as that of other teams in the organisation. This emphasises the need to be clear about your priorities and to be flexible (and perhaps creative) in the way that you deliver services within the agreed budget. This also underpins the need to build a legal team that is adaptable enough to be able to respond to changing needs and pressures.
5. Carry out a SWOT analysis of the legal team
The point here is to analyse the strengths and weaknesses of the legal team, where there are opportunities to develop and improve and what the threats to this are. If the team is established, any workflow data will help you identify where legal resources (including external providers) are focusing their time and the relevant cost. If it’s a new team, any existing data may be based entirely on those external providers.
A key point about this analysis is that it is not a text book exercise and it requires input from both the legal team itself and colleagues in the wider organisation, particularly your key clients. It can be a useful way of picking up different and, perhaps, mismatched expectations about the role of the team and identify where there are gaps in expertise, skills and resources.
6. Determine your purpose and direction
Reviewing where you are and identifying the needs and expectations of your colleagues will be immensely helpful. But what’s now needed is to set out, clearly and concisely, the role and purpose of the legal team and where it’s headed. This is not just a matter of reflecting what others think or want. Of course, the views of the board, senior management and other key clients will be influential. But there may be some conflicting expectations and your job is to determine what is most important in meeting the legal needs of the organisation overall, and acting on that.
While you may not necessarily set things out in this way, it may be helpful to think about purpose and direction in terms of mission, vision, principles and goals. For example: -
Mission – what is the legal team there to do? Clarity about this acts as a signpost for colleagues and as a rallying call for the team. A mission statement should be brief, clear and understandable. It may be helpful to think about Legal’s role in helping others meet organisational goals and objectives, how you protect the organisation’s assets and the values you seek to uphold and represent.
Vision – this is about where you want to be, where you’re heading. Again, it should be concise and clear. It should align closely with the organisation’s vision. Don’t think too short term and also consider the value you bring to the organisation and how you distinguish your service from the competition i.e., external providers.
Principles – what are the key principles that underpin the work of the legal team and the actions and behaviours of its members? These are the values that represent the legal team and which direct the behaviour of its members and provide the context for their judgements and decisions.
Goals – what are the key organisational goals that Legal are supporting (say, around new products or acquiring new assets) and what other key goals will you prioritise, say, around raising legal awareness and development and training?
7. Decide what matters most
In determining your purpose and direction, you’ll focus on the priorities of the legal team. You’ll know that, without priorities, the legal function can become swamped with work, all of which is classed as urgent.
You’ll be largely guided by the priorities of key clients and stakeholders but, within this context, it may be helpful to have a process for determining what is core work to be undertaken by the in-house team, what work should be outsourced and what work should not be referred to Legal but rather be carried in the business team.
How you do this will be influenced by the particular needs of the organisation, but, as an example, legal work could be prioritised by reference to what is considered core work and the relative risk of that work in the context of meeting the organisation’s goals and its reputation. Clearly, core high risk work will generally be the domain of the in-house team but you will want to look at how work in other categories is allocated between the in-house team, external lawyers and other external providers and the client business teams, together with the role of DIY technology and training.
8. How to deliver the legal service?
Having determined the what and the why of the legal function, you’ll need to decide how you’ll deliver the service to your clients. Ultimately, you’ll advise using a combination of methods that take into account proximity and the importance and urgency of the issues at hand. Your prioritisation of work will prove valuable here by ensuring (or seeking to ensure) that non-core and less important work is dealt with in a way that does not tie up valuable legal resources and that legal advice is provided in an optimum way, whether by the in-house team, or external providers.
In determining delivery, you will want to think about structure and the role of face-to-face advice (easier where there’s co-location), virtual meetings, electronic referrals (matter management or email), the use of self-help filters and options (Q&A, for example) and the role of training.
The role of external advisers and providers will also be important if, as is common, there is a mix of delivery between them and the in-house team. Important matters here relate to who instructs, who receives and interprets the advice or service, and who pays? There are no absolutes here, but your strategy will need to clarify the best use of external resources, including in relation to cost and use.
9. Planning your resources
Within the context of the budget and of team’s goals, resources will need to be allocated appropriately. Some, or all, of these factors may be relevant here: -
- Expertise. Your analysis will highlight where you have key skills gaps, which need to be filled. Filling by recruitment requires budget and may take time, as will ‘upskilling’ in the existing team. You may need to look at temporary ‘fixes’, particularly for priority work.
- If you recruit, you need a process that delivers the right people for now and for the foreseeable future based on known and anticipated change in the organisation. In this sense, you will be looking for people who are adaptable and who embrace learning and new challenges.
- Flexibility. Organisations are subject to changes initiated internally and externally, any of which may influence the need for legal services. You need to be able to respond quickly, which means having good networks, adaptable lawyers (and others) and a team of service providers (internal and external) that can respond quickly to new challenges. It takes time and effort to cultivate a strong team and the processes that allow you to change priorities quickly and deploy resources, as circumstances provide.
10. Avoiding pitfalls
The key building blocks of a good legal strategy can be emphasised by looking at some of the pitfalls that can make the exercise more challenging.
i. Not devoting sufficient time to the task. Strategy is a leadership task, as important as technical expertise. Resist the temptation to put it on the back burner and focus only on your inbox.
ii. Seeing it as your task only. The assessing, analysis, reviewing and creating that are needed to develop a strategy will require the input of others – your team, clients, and key stakeholders including boards, senior management and external providers.
iii. Too much complexity. Your mission, vision and goals do not need to be pages long. Take the time to hone these down to what is critical and clear.
iv. Lack of direction. Your strategy should make clear what you do, why, how you do it and what it delivers. Too much complexity and vagueness, or a tendency to change course too easily, will only confuse and inhibit the job.
v. Inflexibility. Events will continually throw up new legal challenges for you and your team to deal with. This requires both clarity about your overall priorities and direction and the awareness to know when to make changes and adapt, when necessary.
vi. Insufficient reviews. Creating a strategy is not a one off or even a once-a-year task. It needs to be reviewed and thought about regularly to ensure that it’s up to date and fit for purpose.
Towards an innovative new strategy for in-house counsel – Mitch Kowalski, 2018
Understanding the principles of strategic thinking – Mike Figliuolo, LinkedIn Learning