Instructing lawyers effectively

With increasing pressure on budgets, public sector managers need to ensure every pound is spent effectively. In the context of legal services, this should mean making sure that money is only spent on lawyers, if legal input is needed and lawyers can truly add value. Yet, often, lawyers become involved in tasks that could, and should, be done by those instructing them, or spend (expensive) time trying to work out what they are being asked to do, from hurried, and incomplete, instructions.

This article looks at how this can be avoided. It assumes that an organisation already has in place the basic structures to enable them to get the most out of their external legal advisers, including:

• An appropriate procurement strategy to ensure the best legal suppliers are in place, whether through framework agreements or otherwise;
• Internal controls and procedures that govern who may instruct lawyers, by what method, and in what circumstances;
• Strong contract administration to enable collection of detailed management information; and
• Contract management arrangements to ensure positive relationships with suppliers.

If an organisation has not already dealt with those issues, it should do so. With an overarching strategy in place, it is possible to look in detail at what lawyers are instructed to do, and what could be done differently to achieve further savings. To put this into context, one law firm estimates that for one client, it spends approximately 10% of billable time chasing things that have previously been requested. An extreme example, perhaps, but if we all looked critically at our own organisations we would probably find examples of having to be chased for something we could have provided when it was first requested. The reminders take time, and cost money. So how do we get better at instructing lawyers?

Many of the points covered will apply whether or not an organisation has an in-house legal team. They apply equally to instructing officers instructing internal lawyers in their own organisation, as to instructing external lawyers. However, the relationship between an instructing officer and an internal lawyer is likely to be less formal than it is with an external lawyer. This can be beneficial, but may also lead to matters not being instructed as effectively as might otherwise be the case, and organisations with an internal team should ensure that there are appropriate service level agreements in place to establish what is expected of each party.  

Where external lawyers are instructed, there is likely to be a contract in place, through a framework agreement or otherwise, and instructing officers should ensure they are familiar with its contents, and the obligations of each party. Often contracts are agreed and then filed, and those using them either never know, or forget the detail of what they should expect, for example, in respect of what may, and may not be charged for.

The form of instruction

Before emails were a common form of communication, instructions to lawyers tended to be typed as a formal instruction, sent in hard copy. Obviously this does not guarantee good quality instructions, nor am I suggesting that instructions should not be sent by email. However, there is something about the ease and speed of email that encourages a busy officer to simply forward it to the lawyer, with perhaps a covering comment such as, “please advise”. This leaves the lawyer having to work out what advice is needed, perhaps erring on the side of caution and giving far more detailed (and costlier) advice than required, to ensure all possibilities are covered. Or, even worse, missing the point entirely and giving advice on the wrong point, and having to be asked to do it again, leading to additional costs.

Organisations should introduce a standard form of instruction, to instil discipline into the process. This will differ according to the needs of the organisation, and whether the lawyer being instructed is internal or external. If external lawyers are used they should be consulted on what information they need in a standard form of instruction, and if there is a framework agreement in place, there may be a standard form of instruction within it. The form of instruction may need to differ across work types, but the form and the process should not be too convoluted or it will discourage officers from using it. As a basic guide, the instruction form should contain:

• Name, contact details and reference of instructing officer
• Timescales and any relevant deadlines
• Details of other parties (if any)
• A brief description of the issue
• Identification of the points on which advice is needed

Scoping

Using a standard form of instruction will encourage, but not guarantee, proper scoping of the matter. This requires the instructing officer to think carefully about what needs to be achieved, within what timescale, and within what budget. The scoping exercise should agree proper controls over what can, and cannot, be charged for, prior to the work being undertaken. Responsibility for each of the tasks involved should be determined, as costs can be saved if the instructing officer is able to competently carry out some tasks that would otherwise be done by lawyers, such as drafting witness statements. This can be done on a case by case basis, if appropriate, or for common work types, responsibility for specific tasks should be agreed in advance.

The scoping exercise needs to agree the services to be provided by the lawyer, with a detailed description of each task, and a timeline showing dates, sequencing and milestones. Costs should also be agreed, preferably on a fixed fee basis, but at the very least, a capped fee against negotiated hourly rates, with arrangements for charging for additional work, or unforeseen delays.

Identifying and addressing mission creep

As public sector budgets shrink, one way in which officers try to do “more with less”, is to ask lawyers to do more. This often happens gradually, and managers may not immediately be aware of it. In fact, it is often not a deliberate choice, but rather how those involved try to address immediate problems. The result is “mission creep”, with lawyers taking responsibility for more than they need to. For example, if a client is unable to find the time to draft a witness statement, but the lawyer is conscious of the need to file it by a certain date, the lawyer will probably draft it themselves. What starts as a one-off measure to address an immediate issue then becomes the norm.

Public sector managers need to be aware of the risks of mission creep either in specific instructions, or in types of work generally. Legal instructions should be reviewed regularly to ensure that lawyers are being asked to carry out legal work. If they are carrying out tasks that could be done by instructing officers, at lower cost, then managers need to be aware of this. There may be little that can be done about it, in the short term, but there should be an action plan to address the issue. The aim should be to bring matters back on track as soon as possible, and certainly in terms of specific instructions, this should be achievable quickly.

Understanding the legal process

The instructing officer needs a sufficient understanding of the legal process to instruct the lawyer effectively. If the instructing officer is experienced and has dealt with the type of matter before, this ought not to present a problem. Otherwise, if the issue is one that presents itself regularly, then appropriate training should be provided. For example, the HR team should fully understand the process and timescales of an Employment Tribunal claim, and those responsible for debt collection should understand the small claims process. It sounds obvious, but in our experience is not always the case, and officers have been expected to pick things up without anyone checking if they have ever been told what is expected of them. Checklists and user guides should be provided where necessary. This is particularly important for organisations that do not have an in-house legal team, where there may be no-one on hand to give ad hoc advice and support.

As an example, for litigious matters, such as claims for money owed, the instructing officer should be familiar with the following basic points:

• How to assess initial merits of a claim, and whether it is worth pursuing;
• The evidence that is likely to be needed to prove the claim;
• The documents likely to have to be disclosed, and where can they be located;
• Who is likely to be needed as a witness, and how to ensure they are available to attend any hearing;
• The critical steps in a particular type of matter and the internal process for recording them to ensure deadlines are not missed.

Do you need to instruct lawyers at all?

In an article about instructing lawyers effectively, this may seem an odd comment to make, but the point is that lawyers should only be instructed if legal input is needed, and lawyers can truly add value. There may be areas of work in your organisation where the in-house legal team, or external lawyers, have always been involved, and where the work may involve some legal process. However, that does not necessarily mean that lawyers always have to be involved, and it may be possible to up-skill instructing officers, without a legal background, to handle the matter effectively themselves. In-house legal teams cannot continue to do “more for less” indefinitely, and may eventually have to stop providing some services. Similarly, the budget may not be available to instruct external lawyers. An alternative to stopping providing the service may be for the instructing officer to carry out the work in the client department, which might enable the organisation as a whole to spend less time on the matter, as the officer already knows the background, and does not have to take the time to instruct lawyers. This needs careful planning, and a number of factors should be considered, including:

The type of work and level of risk it presents to the organisation;

• How far the work processes can be standardised;
• Is it work that adds value or should the organisation just stop doing it?
• The capacity of the client department;
• The experience and skills of the client officers;
• The support mechanisms in place.

If, having carried out a proper risk assessment, it is considered that the client department could carry out a particular type of work without assistance from lawyers, it will be necessary to take the following steps:

(i) clearly identify the type of work, with any limitations that would take it out of this arrangement (for example, debt collection work may be referred to the legal team if a defence to the claim is filed);

(ii) produce a workflow process, checklists, and standard documents to enable the matter to be progressed;

(iii) produce baseline information about the cost of instructing lawyers, and collect sufficient management information of the comparative cost of the client department carrying out the work (however good the initial business case, it may not turn out to be more effective, in practice);

(iv) develop a training programme for those who are to carry out the work, with regular reviews and updates;

(v) if there is an in-house legal team, or available external lawyers, consider regular drop-in sessions or workshops until the new arrangements are established

(vi) regularly review arrangements and ensure they remain effective.

The main point to bear in mind is that, if you are going to instruct lawyers, make sure you only do it when necessary, and make sure that they are effectively instructed so they can advise on the points on which you need advice. Otherwise you run the risk of wasting money that no public sector organisation can afford to waste.

Helen Edwards is Head of the Public Sector Team at Kennedy Cater.

Kennedy Cater works with a wide range of private and public sector clients, managing an aggregate annual external legal spend in excess of £20m. Services include:

• Spend & Review Services –detailed analysis and identification of sustainable savings and efficiency opportunities
• Alternative Business Models – business cases and implementation project management
• Panel Set Up – EU compliant solicitor and barrister frameworks
• Panel Management – monitoring, analysis and reporting of monthly fees
• Insourcing – in house team business cases and implementation project management
• Contract Management – mini tenders and management of complex and large legal services projects
• Benchmarking – comparing key costs of service delivery with similar organisations.