Author: TSA Press

Joe and Kathryn have a freewheeling chat about legal news, which is a more professional way of saying they improvised for 30 minutes after Elie Mystal overslept and failed to show up for the scheduled recording. Above the Law is basically a late-stage rock band.

But the pair carry on and discuss Alan Dershowitz bumbling through the early stages of the defamation case he’s asked for, Brett Kavanaugh’s Supreme Court clerk hiring, Alabama Law School throwing away millions, and many more of the week’s screw-ups.

Who was the first Supreme Court justice to graduate from law school with a degree (he graduated from Harvard Law School in 1832)? Justices appointed to the Court prior either became lawyers via apprenticeships (as Kim Kardashian is currently attempting) or attended law school without graduating.

Hint: This justice is also notable for being one of two dissenters in the Dred Scott case. Acrimony over that decision led, in part, to the justice’s decision to resign from the Court.

See the answer on the next page.

In the past few years, we’ve seen a great deal of merger and acquisition activity among legal service providers. And we’ve seen it not just on the services side, but also in software. This can be great for business if you’re inclined to use vendors to supplement or manage your eDiscovery or litigation support services. Sometimes mergers result in the availability of additional services. But it can also wreak havoc on organizations that use a single vendor and who could wind up working with a vendor they have not previously worked with, or worse, one they specifically decided not to work with.

The bottom line is that most people who work on the vendor side, from the executive running to the company, to the salesperson who originates work, to the project manager who actually executes — are well-intentioned, hard-working people looking to deliver valuable services in exchange for a fair fee.

People make mistakes. Heck, companies make mistakes. If there is one thing I’ve learned about eDiscovery and litigation support, it is that mistakes are going to be made. You’re dealing with data and systems and people that are not perfect. Anyone who expects the delivery of legal support services or eDiscovery to be perfect is clearly working in the wrong business.

One way to stay on top of the latest developments in the legal software and support services industry is to attend trade shows and conferences. Given that the Summer is here, and the conference “season” is fast approaching, I thought it would make sense to highlight a few things to look for when faced with challenges in continuity among legal service providers.

First of all, consider whether the law firms your organization is working with are either able to handle your software and support needs, or whether they are able to leverage their relationships with third-party providers to ensure you receive the most value. Law firms offering software and services can provide a hedge against merger activity.

If your organization is among those that have already contracted with software or service providers, continue to assess whether you are getting the value and quality of service you need on a matter by matter basis.

Keep your finger on the pulse of the industry. We’ve seen a lot of price compression, particularly around processes involving eDiscovery. Make sure you are getting current pricing on project proposals.

And understand the legal services market in general. Look beyond project proposals and costs and make sure you are getting quality services, that the management and ownership team at the software or service provider are attentive to your particular needs.

Demand things like solid project reporting, workflow metrics, and post-project reviews. It’s one thing to complete a project successfully; it’s another to have the comfort and knowledge that it was completed in the most efficient and cost-effective manner.

And lastly, have contingency plans. Given the merger and acquisition activity in the industry, make sure you have a plan should the vendor or software company you are using be acquired. Don’t put all your eggs in one basket, or at least have a backup plan if your favorite vendor suddenly no longer exists.

Many software and services providers are owned by investors, and investors are interested in securing a return on their investment. These interests may not be aligned with the objectives of your operations team. A firm understanding of the legal services market, greater emphasis on process and workflow metrics, and the development of contingency plans should help your organization weather any merger and acquisition storms.

Mike Quartararo

Mike Quartararo is the managing director of eDPM Advisory Services, a consulting firm providing e-discovery, project management and legal technology advisory and training services to the legal industry. He is also the author of the 2016 book Project Management in Electronic Discovery. Mike has many years of experience delivering e-discovery, project management, and legal technology solutions to law firms and Fortune 500 corporations across the globe and is widely considered an expert on project management, e-discovery and legal matter management. You can reach him via email at mquartararo@edpmadvisory.com. Follow him on Twitter @edpmadvisory.

Value-based pricing (“VBP”) is beginning to revolutionize the legal services industry by transitioning legal engagements from the traditional hourly fees model to a new value-based approach. VBP, when structured correctly, significantly reduces total legal spend, increases budget predictability, promotes law firm risk-sharing and improves the productivity of corporate legal departments. VBP is not simply an alternative type of fee arrangement, but is actually a completely different methodology for the pricing of legal services.    On the law firm side, it drives better efficiency through matter management and can provide significant economic upside for successful outcomes, often a win-win scenario. Although VBP has been around for over 50 years, it is fairly new to the legal industry. In fact, most other large professional services industries moved to VBP decades ago (e.g. management consulting and accounting).

With the traditional hourly model, the client has minimal fee predictability and carries all of the risk of a bad outcome and the cost of the matter.  In VBP, the goal is to pay less for the effort and more for the results, and to encourage the law firm to share in the risk of the matter. This requires a fee structure such as VBP that aligns the goals and incentives between the law firm and the client.

As most would agree, the hourly billing process incentivizes law firms to be inefficient.  Value-based fee arrangements require law firms to become more efficient. As a result, firms pay more attention to matter management, process mapping and making sure that work is performed at the correct value-price point.  This increase in law firm efficiency translates to cost savings for the client, typically in the range of 20% – 40%. For corporations with a large outside legal spend, this savings can be significant.

VBP also increases in-house productivity.  In most legal departments, in-house attorneys are required to review every outside counsel invoice for which they are responsible. These are lengthy documents that itemize fees and expenses down to the tenth of an hour.  For some companies, the process of in-house attorneys reviewing these bills can often take 10–20% of their time. However, when a legal department moves to value-based fee arrangements, that invoice review (and accrual) process is eliminated, providing an increase in productivity (and essentially a virtual increase in attorney headcount).

VBP is applicable to all practice areas. It works just as well for corporate, M&A, IP, privacy and employment as it does for litigation and investigations.

How do you determine the value-based fee?

Actual pricing under the VBP model is derived from five components: matter type, matter value, jurisdiction, type of firm and risk-sharing.  

Firm and Matter Type – A definition of matter type and firm type begins with an understanding of value-price points (“VPP”). This can be thought of on a relative scale as there are types of matters and certain types of tasks that have a lower VPP than others.  These VPP (or market) differentials can be due to many factors including complexity of the work, commonality of the work, the number of skilled practitioners available and the “perceived” value of the work. An understanding of VPPs for different matter types and tasks is helpful in setting pricing and assigning the proper resources to do the work (partner, associate, paralegal, etc.).  

This concept of VPP also applies to firm types.  Different firms have different VPP’s based on size, brand, reputation, matter breadth, client list, geography, overhead structure, etc.  It is important to match the VPP of the matter with the VPP of the firm that will do the work.

Matter Value – One of the key components to creating a value-based price is to perform a matter value estimation (“MVE”).  There are three types of value: economic, perceived and strategic. An MVE begins with an economic value estimation.  This is typically the actual economic value of the matter.

Perceived value is the economic value of the matter adjusted to the perceived value of the client.  Typically, in litigation it is significantly less than the economic value. For a transaction, it may or may not be same as the economic value.  

The final step in an MVE is the determination of the strategic value.  In litigation, this is the financial impact on the corporation of losing the case together with the financial impact of potential future litigation.  For a transaction, this includes the financial impact to the corporation if the deal does not go through.

Jurisdiction – This factor takes into account the court and the geography in which the matter is adjudicated.

Risk-Sharing – Pricing structures can incentivize risk-sharing by law firms and drive toward the goal of the client paying more for results and less for effort.  This alignment of incentives between the client and firm provides not only better value for the client, but also allows a law firm to earn a premium for outstanding results.

What types of fee structures and price metrics are used in VBP?

In the application of value-based fee arrangements, there are numerous structures and metrics used to create the actual fees.  Below are a few basic structures. More complex arrangements are hybrids of multiple structures.

Task-based ─ This structure is usually a fixed fee for a specific task and is often seen in patent prosecution or immigration law.  An example is a fixed fee for completing and filing a utility patent or H1B visa.

Tier or category-based ─ Some legal work can be divided into value tiers and often a fixed fee is assigned to each tier or category.

Scope-based – For legal work that is project based with specific deliverables or has a defined scope of work delivered consistently over a period of time, a fixed fee would be defined.  

Unit-price metrics – Different price metrics should be considered in each engagement.  Under the traditional hourly rate model, the unit-price metric is dollars per hour.  Since hours worked is not synonymous with value delivered, consider other value centric metrics such as dollars per document, dollars per deposition, or dollars per motion. There are an unlimited number of ways to modify the metric based on different types of matters, goals and outcomes.

Since there is so much variability in litigation, how does VBP work?  

Litigation is handled using a fixed fee by phase approach.  Each phase is based on a specific set of assumptions and in specific phases, a success fee is sometimes considered.  This methodology allows for significant flexibility to the changing dynamics of a litigation matter while providing budget predictability and requiring law firms to be more efficient and use better matter management techniques.  

Summary – Benefits of Value-based pricing

Many corporate legal departments are beginning to realize that the current hourly billing model is not sustainable.  With billing rates for some firms topping $2000 per hour, the question becomes “Where does this end”? In-house attorneys want to move off of the billable hour model but don’t know how to accomplish it or how to evaluate if an alternative fee is right for them.  VBP is fast becoming the new standard for clients to focus on the value received in legal services, and not on the effort expended. Fortunately, this methodology is applicable across all types of legal matters and practice areas. It gives legal departments the budget predictability they need while significantly reducing total legal spend and increasing in-house productivity.  It can also be used to build new partnerships between firms and clients that are based on value delivered and client success.

Just like the other top-tier professional services industries that converted to this methodology over 20 years ago, VBP is the future of legal services.  The change will most likely not come from the law firms, but from the clients that are beginning to demand results-based compensation models.

Ken Callander is Managing Principal of Value Strategies LLC, a consulting firm that specifically works with corporate legal departments helping them get more value and predictability from their outside counsel relationships.  His specialty is helping clients transition their engagements with law firms from the hourly fee pricing model to value-based fee arrangements.  For corporations this process not only provides better legal budget predictability while eliminating legal invoice review, but it also reduces total legal spend by an average of 20% – 40%.  His current clients include the largest companies in ride-sharing, money transfer, social media and internet search along with multi-national conglomerates and the largest university system in the United States.

As the founder of Value Strategies LLC, Ken was Head of Legal Operations and Chief of Staff to the General Counsel at Uber Technologies.  Prior to Uber, Ken was the Chief Marketing Officer and Director of Business Development at Davis Wright Tremaine LLP, a 500-attorney international law firm and before that was an executive at Hewlett Packard in operations and marketing where he was considered an expert in the pricing of professional services.  Ken graduated with a degree in Physics/Physical Sciences from Stanford University, is a Certified Pricing Professional (CPP) and lives in San Francisco.

Just a reminder to white students, lawyers, judges, and professors:  You should not use the N-word.  Ever.  There may be exceptions when someone who is not black can use the N-word, but they are small exceptions that will never apply to you.

I posted a tweet that suggested that as a rule it is never okay for a white person to use the N-word.  That included a 16-year-old who, as it turns out, does not get to go to Harvard because of his use of such a word.  Others have faced wrath for the use of the word.  A judge.  A juror.  A law professor.  But apparently it is still a thing for white people to desperately search for an exception that allows them to use it.

So, Twitter came alive with the sound of privilege.  What kind of privilege?  The privilege that insists that white people can say whatever they want, whenever they want, and to whomever they want.  You know, the kind of privilege no one else has.

Let’s try this again…

Me on Twitter:

Q: When should a white person use the N-word?
A: Never. FAQS: What if…. Singing along to hip hop? No. Quoting from a text? No. Posting on social media when you’re 16 and wanting to get into an Ivy League School? Still no.

Q:  Can I use it while reading Mark Twain?  Can I use it if I’m acting in a movie or play and I’m portraying a racist?
A:  There’s a plethora of people reading Mark Twain aloud and/or acting in a movie portraying a racist?  News to me.  Wait, are we doing “Green Eggs and Ham?”  Not in a house, not with a mouse, not in a boat, not in a moat……

Q:  What if I have a pass from someone who is black?
A:  Still no.  Most people claiming to have such a pass lie about it, and others try to use it around people who did not give them “a pass.”

Q:  Can I say it if my girlfriend is black and asks me to say it during sex?
A:  Wow, we’re stretching the hypotheticals, aren’t we?

Q: Can I say the word “niggardly”?
A:  No, because you know you’re doing it to provoke when you could use a word like stingy instead.  You know you have a thesaurus.  Also, do a search for the word on Twitter and see how many times it comes up APART FROM PEOPLE COMPLAINING ABOUT HOW THEY AREN’T SUPPOSED TO SAY THE N-WORD!

Q:  Can I use it when I sing along to the music of hip-hop?
A:  No.  Here’s a helpful video about it from nearly two decades ago.

Q:  How come Eminem gets to use it?
A:  Without consequences?  Hardly.  Oh, by the way, so that we’re clear: you aren’t Eminem.

Q:  What about Django Unchained?  White people had to say the N-word then.
A: Yes, for historical accuracy.  Not to aggrandize slavery or do anything but highlight the horrors of it.

Q:  You are oppressing my free speech rights, you fascist pinko!
A:  That’s not a question.  Also, I said you shouldn’t say it.  But you clearly have a deep pressing need to say it for some reason.  I wonder why.

Q:  Why can black people say it and I can’t?
A:   Because it wasn’t a tool of oppression against you, white guy.

Q:  Well, forbidding us from using the N-word won’t get rid of racism!
A:  Don’t I know it!  If white people refuse to avoid saying a single word, imagine how difficult it is to eliminate other institutionalized racism.

Q:  You suggesting segregation of speech?  This is black privilege!  You’re the word police!
A:  Why are you so freaking upset about not saying a terrible word?

Q:  What if I desperately need to quote the Boondocks?
A:  Sigh.

Q:  What if my 3-year-old misspeaks when talking about the country Niger?
A:  Correct the child, and explain to the kid how they should never use the word again. Explain the history of the word.  Use resources, because if you’re asking questions like this I think it means you might need the help yourself.

Q:  I know a professor who likes to use the N-word just because.
A:  Never take a class from that professor ever.

Q:  Kids will be kids.  Why punish a 16-year-old for saying the N-word?
A:  I’m sure you say the same thing when a 16-year-old minority kid does or says something, right?  Like walk in their own damn neighborhoods?  Or is this really about white privilege again?

Q:  But I really just want to say it!!!  It’s killing me not to!
A:  Some words don’t belong to everyone.  Watch this.

Q: Why are you so uptight about this?
A:  I’m horrified that you WANT to use a word that is so destructive, so harmful, so hyper-contextualized and intertwined with oppression and enslavement.  Why are you trying so hard to say it?  My concern is that you want to say it to feel superior.  That’s the very thinking that the word’s history teaches us is very dangerous.

LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.

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The association said it is in contact with the Reserve Bank of Zimbabwe, to unlock wheat consignments that are in Beira and Harare.

“We are also constantly updating our key stakeholders who include bakers on the obtaining situation,” said Garikai Chaunza, media and public relations manager for the association. “We are also jointly working with the bakers in engaging the authorities on a number of issues that would improve bread supplies.”

Scarcity in foreign currency and insufficient imports to meet demand has many firms relying on the central bank to provide foreign currency, New Zimbabwe reported. This has negatively impacted manufacturing since many firms rely on imports for production.

The Standard reported that a leading bakery has suspended operations. Bread prices have gone up more than three times this year.

The government has blamed the situation on cartels, which it said have monopolies in the industry. Government officials have said the shortages are artificial.

Zimbabweans queue outside a bank in Harare, Zimbabwe, February 26 2019. Picture: REUTERS/PHILIMON BULAWAYO

Addressing Zimbabweans directly, Mnangagwa said that “the process of reform is not an easy one, it involves sacrifices from all of us. But I promise you it is worth it. Yes, today is tough, but tomorrow is looking brighter. We are opening Zimbabwe up for investment, building a new and mutually beneficial relationship with nations and businesses around the world. We cannot be left behind”.

Throughout the 80-minute programme on Capitalk FM, Mnangagwa discussed a wide array of issues, from agriculture, mining and infrastructure development, to fuel increases and a new Zimbabwean currency, which would require pre-conditions. “Production must be there, corruption must be eliminated, the mind-set of our people must change so they believe in themselves again. When all those things are in place, we can then introduce our currency.”

Nearing the end of the first year as elected president, Mnangagwa stressed the challenges he has faced following the 37-year tenure of Robert Mugabe. “It was not only our economy that collapsed, but also our courage”, Mnangagwa said. “And to rise from our collapsed economy, certain things must be done for us to get back on our feet: reforming our economy, reforming our institutions, reforming our legislations, reforming our mind-set as people.”

Mnangagwa pointed out some of the progress made so far, including modernizing the Public Order and Security Act (POSA), the controversial emergency law dating back to the Mugabe regime, as well as media and access to information reform legislations that would meet international media freedom standards – key demands by the U.S. to remove the Mugabe-era sanctions against Zimbabwe.

Critically, President Mnangagwa has also invited the leader of the opposition MDC Alliance, Nelson Chamisa, to join the ongoing political discussion between the majority of political parties in Zimbabwe. The Political Actors Dialogue (POLAD) is an effort to improve the country’s difficult economic situation and to encourage its confrontational politicians to cooperate in the national interest.

But Chamisa has so far refused any multilateral or bilateral dialogue. “I cannot get a bulldozer or tractor to pull him out of his house for talks,” President Mnangagwa said. “Why doesn’t he come to the table where everyone is? To all those who want to offer their views, their advice on any issue, the door is open.”

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