Curing Communication Babble

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By Pamela Woldow | Jun 28, 2015

1 HiResA Slightly Disguised True Story

Legal Department Head of Litigation:

“Sam, I swear I’m about to throttle you guys, or at least fire you. You keep sending us these urgent demands for decisions and information with totally inadequate lead time. We get settlement requests, notices of hearings, pleadings and documents for review, and requests for interrogatory information with only a couple of days for turnaround.

“Do you have any idea how long it takes to go up and down the decision ladder around here? You turn every routine communication into a pressure-prompted emergency. We’re sick and tired of getting the bum’s rush.”

Client Relationship Partner [clearly taken aback]:

“Laura, I had no idea we were causing you so much distress, but we will fix this communication problem, like right now. How much time do you need for turnaround?”

Legal Department Head of Litigation:

“For us, it’s usually pretty straightforward, Sam.

“For pleadings, we gotta see ‘em one week in advance of the filing date.

“For reviewing important letters, one week in advance of sending.

“For settlement authority, we need two weeks at our end after we receive your case report, unless it’s a major matter; figure longer — three weeks – for high-stakes decisions.

“We need to see notices of mediation and arbitration at least 30 days in advance of the proceedings date.

“For rogs and deps, we need to talk case-by-case, but you have to stop assuming that we all can jump through hoops at the snap of your fingers.  Our clock is not like your clock.”

The moral here is clear: if the parties had taken the time to discuss communication pathways and timeframes early on, they could have avoided a lot of later pressure, stress and hard feelings in the law firm-client relationship.

Who’s to blame? Everybody. The partner should have asked. The client should have taken the partner through a communications reality check at the get-go.  But nobody communicated, and now everybody suffers.

Communication Turnaround

Poor communication between law firm lawyers and in-house lawyers and general counsel contributes to misunderstandings, dropped balls, inefficiency, unpredictability, acrimony, and a generally adversarial cloud over the law firm-client relationship. Each side blames the other.

But stop: where does blame and shame get us? How does it improve things? How can the players light a collaborative candle rather than continually cursing the darkness? To do this, everybody has to take two basic steps: 1) resolve to communicate better because lousy communication is so costly, even in “minor” matters; and 2) consciously focus on up-front communication planning.

Da plan, Boss, da plan!

If there’s one thing that Legal Project Management reveals, it’s that lawyers are loath to plan. Too time-consuming. Too… administrative. They prefer a “ready, fire, aim!” approach in which they charge into action, patching up problems and re-jiggering erroneous assumptions down the road.

Although creating detailed communications plans for significant or complex matters – plans that include input from both law firm lawyers and in-house counsel – probably is about as appealing as rubbing ground glass in your eyes, maybe we can cajole you into creating at least a simple template, basic checklist or discussion guide.

How simple? As simple as practically possible, because complex plans take time both to create and monitor. And let’s face it: the majority of law firm-client communications do not relate to huge engagements with scores of contributors and boatloads of moving parts. They involve the simpler, quicker interactions of a couple of lawyers who have worked with each other a lot, know each other well, and have done this sort of thing often before.

Do such workaday communications really warrant protracted scoping and planning? Obviously not. But even simple communications warrant some basic framing and reality-testing. Lawyers working in familiar territory are even more prone to making untested assumptions and therefore getting sucker-punched by inarticulate communication than lawyers project-managing sophisticated matters. Familiarity breeds contempt, as they say.

For simple communications or complex, the following guidelines will help improve the overall quality of communication.

Try it, you’ll like it

When thinking about who should be in the communications loop and what form of information is appropriate for each stakeholder, non-lawyer project managers often trot out the acronym RACI.  RACI reminds you to consider the different players who may need to be part of communications and decisions by asking four framing questions:

  1. Who is responsible for performing the various tasks involved in the matter, and what information does that person need to do the work?
  2. Who is accountable for (i.e., who “owns”) the matter and what type/level of information does that person need to stay on top of things?
  3. Who needs to be consulted before a decision is made or an activity commenced?
  4. Who else needs to be at least informed of where and how things are going?

Regardless of which side of the law firm-client wall you’re on, for complicated multi-party communications, you’ll do well to create some kind of BCP – that’s a “Basic Communication Protocol“ – which may be no more than a set of scribbled notes describing:

  • WHO: The names and titles of everyone who needs to be somewhere in the communications loop (even lower-level worker bees).
  • WHY: The reasons and rationales for why each player is communicating with other players.
  • WHAT: The kinds of information that need to be shared, and what kind of response is required.
  • WHEN that information is best shared and when a response is needed.
  • HOW that information is best shared: Email? Phone?  Written report? Meeting? (meetings are costly, but they actually go a long way toward minimizing communication babel)

The best way to end-run lawyers’ natural tendency to avoid discord and conflict is to minimize situations that trigger discord and conflict.  And the best way to avoid damage control mode is to think more seriously and respectfully about your modes, methods and style of communication – even for simple matters – at the outset.  A problem averted is not a problem.

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