“The bottom line is that general counsel have choices, we’re constantly wined and dined by outside firms. You really don’t have that many chances as outside counsel. … If I have a relationship with an outside counsel and see a one-off mistake, I’ll go and discuss it with them, but if it’s the first or second time I’m using them, I don’t generally go back.” — Debbie Hoffman, Chief Legal Officer of Digital Risk LLC

The cost of adequacy can be silent disdain — and no repeat business. A lawyer with talent can always do a better job with the benefit of a process to apply it effectively, efficiently, and with transparency.

In this lesson we move to the under-discussed phenomenon of the inadequacy of being merely adequate. This can be avoided.

Clients know that any litigator who never loses a case is settling too many. A healthy win/lose ratio must have some chalk marks in the ‘L’ column. But it’s more subtle than that. It’s not that trial projects fail, it’s why they fail.

There is a spectrum, where at the extreme end are trial cases that can be regarded as gross error scenarios. These arise where the trial lawyer blew a statute, or fought a case on unverified facts or speculative legal grounds. Clients can spot those. Do that and your firm will probably be sued. At the other end of the spectrum are engagements where nobody did much wrong, but as unpredictable events unfolded, it just didn’t work out. As we all know, trial work is always attended by the twin perils of randomness and capriciousness. Clients understand that as well.

What is much more interesting than either of these extremities is the middle ground. Many engagements, trial and non-trial alike, if properly analyzed, cluster around the space in between gross error at one end of the spectrum and no fault at the other end. These middle ground engagements are an important study group for us.  From the client standpoint, the work failed to meet the three primary features of reliability — correct outcome, on budget and on time. Yet the lawyer performance was broadly satisfactory. Maybe suboptimal, but satisfactory.

These cases can be called ‘Routine Avoidable Failures’ (RAFs). By definition, there is no available data, because no one gets sued. But conceptually we can imagine a spectrum with a concentration around the median, as in:

Trial Failure Spectrum

Lawyers might look back on our performance in these RAF cases as satisfactory, and they might be right. But what matters is the attitude of clients towards RAFs. Goodwill plays a part here and most reasonable clients will permit their regular counsel an episode of mediocrity, and even the occasional mistake. But for serial disappointers and for lawyers receiving their first case from a client, the outcome is often not getting rehired. In this way, the cost of adequacy can be silent disdain, and no repeat business.

What is the antidote to inadequacy? How can we mitigate against the risk of Routine Avoidable Failures? The short answer is talent and good process, closely aligned.

A lawyer with talent can always do a better job with the benefit of a process to apply it effectively, efficiently and transparently. The process should offer clear definitions of outcomes, credible planning, properly structured execution, rigorous monitoring, and client collaboration throughout. The process should identify conflicting needs and goals at the time when they should be discovered, which is the beginning, and it should culminate in accountability and improvement. These are the keys to providing a service that is consistently reliable. And consistent reliability is the single most important key to repeat business.