Page 37 - CCCA 250375 Magazine_Summer 2016

{ legal InnovatIon }

CreAting time:

the top perFormer iS no ChiCken little

By Peter Brady and Mark Travers

What skill set do top-performing in-house counsel possess? 2,” but how do they develop the skill set
What’s in their toolkit that elevates them from basic technician to to be more—to be the creative legal busi-
ness advisors their in-house clients want?
trusted advisor? We set out to explore whether external counsel Is it possible or are there too many struc-
can use this same skill set in the provision of legal services tural barriers and established conventions
around service delivery, billing and busi-
to clients or if the historical, structural and organizational ness development that prohibit external
impediments are too great. counsel’s growth?
Recall the goal: create time after iden-
tifying the true matters of legal and busi-
n-house counsel must be diplomats, effcient risk assessment triage, they have ness risk so external counsel can be cre-
tacticians and strategists. The best per- time to either deal with the matter di- ative to the degree that elevates them to
iformers are constant and nimble risk rectly or assemble a group of internal trusted advisor. Some external counsel are
assessors, who seamlessly analyze the issue, clients, and perhaps external counsel, to fortunate to have spent time as in-house
implement considered mitigation strate- resolve the matter. Top in-house counsel counsel and understand the calculus in-
gies and contribute to major business deci- can actually afford to take additional time volved, but most must still battle the tra-
sions. They have an innate ability to weigh to deal with legal matters that truly give ditional notions of time and the hand-
and balance risk with an essential dose of rise to business or legal risk. This is where cuffs of conventional billing models.
prioritization. Chicken Little could not they provide exceptional value to the legal However, client-focused and forward-
survive, let alone be a top performer, in an team and the organization—they create thinking law frms are embracing and cre-
organization’s legal team. As we recall from time as opposed to wasting it. ating new Alternative Fee Arrangements
the children’s story, Chicken Little always By creating time, they can consider, (AFAs) that redefne the notion of value
thought the sky was falling. analyze, strategize and be creative. This for both the client and the frm. AFAs
While conventional thinking has long creativity elevates the legal function be- properly scoped and communicated with
held that in-house counsel, unencum- yond that of a mere legal technician to a a client serve to educate external counsel
bered by billable hours, can spend as much true advisor, enabling the in-house legal on client needs and business goals, as well
time as required on an issue, the reality is team to assist the business in making de- as advance a mutual acceptance of value
far more nuanced. This is where top per- cisions and implementing strategy. This is and proft through a less than traditional
formers diverge dramatically from the where the legal function adds true value, allocation of risk.
rest. Chicken Little would certainly take as therefore deserving a place at the heart of Through AFAs, external counsel can
much time as required to analyze an issue. the action. This is where in-house counsel create the time to engage in creative, stra-
However, since he identifes everything as strive to be. tegic thought in a way that emulates top
a risk, he would suffer from a paralysis of Can these skills be learned? Perhaps in-house performers. In doing this, or
opinion, which equates to unneeded re- not entirely, but they can be developed even striving towards it, external coun-
search, excessive external counsel engage- or enhanced through mentorship and ex- sel will move beyond “The sky is falling!”
ment and ultimately wasted time for the perience. The key is identifying, through and have a chance at the coveted trusted
legal team and the business. The problem recruitment and selection processes, those advisor role. ❚
is compounded by the fact that most often with the innate abilities embedded in both
the areas of actual risk cannot be fully ad- their personalities (think “EQ”) and their
dressed or offset. professional judgment. Peter Brady is a partner at McCarthy Tétrault in the
Litigation and Mining Groups, co-head of the frm’s
In contrast, top performers calmly as- External counsel always strive to be National Environmental, Regulatory & Aboriginal
sess the issues and quickly deal with or such trusted advisors to clients. Any Group, and former in-house counsel with a multi-
discard many of those that would send competent counsel can be a technician, national mining company. Mark Travers is General
Chicken Little into a tailspin. With this proudly shouting “5!” when asked “3 + Counsel at Vale Base Metals.

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