“However, while the profession is no longer in crisis mode, we recognize that firms will remain under intense pressure to create new models for pricing and delivery of legal services,” DiPietro said in a news release. “The report addresses these issues as well as the industry’s response to the current market environment.”

I suppose this will lead to another in depth discussion of alternative fee arrangements.  How novel.

Some highlights:

• Realization continues to drop in spite of efforts to raise rates to offset drops in demand;
• Pressure for discounting, fee caps, multi-year rate schedules and alternative pricing increases;
• Increases in “negotiated” rates are being offset by drops in “collected rates”, leading to the lower realization;
• Firms chose to cut expenses, especially compensation costs, to offset losses (a typical reaction);
• Biglaw firms fared better than smaller firms, mostly due to dramatic purging of staff and cost controls;
• Significant improvements seen in 2009 in demand for Mergers and Acquisitions, general corporate, tax, capital markets, and real estate practices;
• Expect further cost cutting measures in 2010 (ie, not likely to be a boom year for technology vendors seeking to encourage firm investment in technology).

A look at the effects on key profit drivers:

• Productivity still in negative growth “driven to some extent by associate pushback on the unsustainable billable hour requirements in many firms”;
• Leverage is increasing to make up for declining productivity (which makes no sense as this drives up costs without adding value);
• Realization, as earlier stated, is in steady decline;
• Expenses had been a source of continual growth until 2009;
• Growth prior to 2009 was consistently driven by rate increases between 6 to 8 per cent annually;
• Expectations for future rate increases are low due to increased client resistance.

The Advisory mentions something that I have touted for years:  the need for improved efficiency to maximize profitability.  During the boom years, it enhanced an already profitable model.  Now, it will be a necessity to offset rate stagnation.

Legal Current has more on the advisory.  To read their take and download a copy of the Advisory, click here.

Well, that was my intention in purchasing the Mac.  I heard all the great things from Mac folks.  They are a die-hard group that nearly died before Steve Jobs came back to the company and did an incredible imitation of Bill Gates – except to cool people rather than geeks.  That is, if you find a guy wearing a black mock turtleneck cool.

The question for me, however, wasn’t whether I was going to learn how to run Mac applications – they were way too expensive for me – it was whether I could run Windows inside of OSX, Mac’s operating system.  So, my first foray into the Mac world was definitely through the lens of someone wanting to keep his desktop, but just access it through another operating system.  A thoroughly weak reason to purchase a computer (which ended up being a 15 inch MacBook Pro).  However, shortly after blowing a few hundred on a few virtual machine apps (Parallels Desktop and VMWare Fusion) and feeling my lap burn from the intense heat generated from running both applications, I realized I was wasting my time.  This is a Mac.  Don’t run Windows on it unless you have to.

From that point I set out to learn how to use it on its terms.  In many ways it reminded me of the old OS/2 Warp look and feel, but definitely mature and full of features.  But can it run my office?

The simple answer is no.  I know of no legal software vendor who is actively developing Macintosh native applications – at least any that write to a database.  So in my view, the debate is dead in the water until Apple or a software developer on that platform begins to cater to attorneys.  There are some tempting technologies that may make platform irrelevant – for example, cloud computing – but these are still emerging technologies and last I checked law firms were not cutting edge in utilizing technology.  Cloud computing is a newer model where a vendor sells a web application that is hosted on their end but accessible on any compliant web browser.  This simplifies roll out, training, and administration.  It also holds confidential business information off-site.  In my world that won’t do.  There are ways to host web applications locally but you’d best find a good consultant or an in-house developer or you will be nickel-and-dimed to death by vendors.

I use mine primarily to manipulate images, video and other intensive artistic endeavours that PCs are getting better at doing but are far behind Apple in perfecting.  In a legal environment that pretty much limits its usefulness to marketing, website development etc.

I know of some firms who have attorneys who just like the look and feel of the Mac keyboard and the superior touch pad (that allows you to scroll by using two fingers, for example).  Still, the key to them is connectivity to a Windows environment.  Windows Terminal Services allows just about any platform to connect to a server and run applications as if you were sitting at your desk using Windows.  This allows anyone with a prior propensity to use a Mac the ability to use it at work.  But this technology has been around for a while.

The bottom line, in my opinion, is that whatever platform your end users prefer, the back end is still going to be Windows.  With the relatively stable Windows XP and the coming Windows 7 (which, like every other version of Windows, incorporates some of the best ideas from Apple into it), the only reason I see at this time to use a Mac is to just want to use a Mac.  Administratively and for the end user, there are complexities you must overcome that are on top of what other Windows users already face (unless you run the entire network through terminal services).  

Therefore, I see no reason for using Macs in the law firm unless you just want to be cool.  And I mean the figuratively, because if you run either of the virtual machine applications listed above on a MacBook, your desk/lap/whatever the laptop sits on will be searingly hot.

If your firm uses Macs and your experience differs from mine, please feel free to share your experiences in the comments section.

It may not come.  But there is reason to believe it will.  Attorneys from large law firms who have been laid off are finding themselves entering the mid-firm market and some enterprising ones will start their own firms, determine a model that maximizes profit, and “Wal-Mart” some out of business while still raking in incredible profits.  All it takes is better efficiency in serving clients (and, in my view, an unprofessional but very business-like approach to targeting and accepting clients).  The relationship you have with your clients puts you at an advantage right now.  However, in forecasting models you should prepare for a fight for your business based on  rate.    

If you are faced with reducing rates to keep clients, efficiency is key to making up the lost revenue.    Don’t rely on volume alone as it can fool you into thinking you are in a better financial position than you are.  You may end up hiring excessive numbers of attorneys, especially as the costs of attorneys goes down (another inevitability that is already happening – salary reduction for new associates).  If you are still making minimal margins because you are too busy to implement efficient processes and you get undercut by someone willing to lower their rates, your firm will be in for a rather intense correction.

Even assuming rates don’t increase, there is a high probability that any planned rate increases will be difficult to implement.  Firms have been contracting for several months and most have already cut costs as low as they can.  A reduction in rate is an unplanned occurrence that can place even more pressure on firms to reduce costs.

From the firms I have consulted, most are still unwilling to invest in efficiency – rather, they are placing more emphasis on productivity and staff reductions.  There are a few firms who are changing their model to streamline processes – those who invest in better procedures will not only be in a better position to absorb rate stagnation (or deflation) but will be in a better position to increase profitability later this year when the economic numbers start to improve.  The test will be whether they retain earnings, a concept that is anathema to many firms.

Please note that due to the activism of the Federal Government to re-inflate the credit markets, there are arguably two possible results:  massive inflation or another asset bubble (which will lead to a result similar to what we are experiencing now).  Either way, the pattern of erratic markets is not likely to end anytime soon and with trillions being poured into the economy, money may get loose for a while – smart firms will invest in their firms (take advantage of the deflation) and set aside sufficient amounts to take short hits on revenue rather than make distributions (in case of a rapid spike in inflation or another asset bubble).  We are in for a long period of uncertainty.  Universal health care, carbon emission taxes, and of course the obvious tax increases to pay for the action taken already and to sustain the new entitlements.

Law firms will not be needed less (and in fact in some areas they will be needed more) but they are not immune to shifts to the economy.  There will be areas of rate inflation but your firm may not be one of the beneficiaries.  Some areas of law that have flourished for decades will suffer greatly and some boutique firms will cease to exist entirely.

Prepare for it.  If your firm flourishes and all the doom and gloom above doesn’t come to fruition, great.  Your bottom line thanks me for helping you have such a strong equitable position during your time of saving – go buy a new touch screen whiteboard or make a distribution so you can pay for all those projects at home.  If the firm struggles, however, you may avoid having to make decisions that are not only uncomfortable but can lead to a fracturing of the firm.

The problem is establishing the habit of timekeepers entering time regularly.  As in every other area of law firm management, measurement improves performance.  Using a Missing Time Report, such as the one shown below (click to enlarge), can help timekeepers get into the habit of paying attention to their time spent serving their clients and making sure they are recording the time spent on such activities.

In this report, the timekeeper can see the days they missed during a range of days – whether it be a month or week or whatever the time range entered.  A gauge is a good graphical method of tracking time entered for the range – in the case of the report to the left, it is looking at a month’s range.  The minimum hours is set to 167, or just over 8 hours per day.   Any day that the timekeeper does not enter 8 hours is shown, as well as the average rate on the day the time target was missed.  This will be used at the end of the report to determine value of the time missed.

The report also shows, per timekeeper, the total number of days where the time target was missed and the total hours entered for the range of dates.  The report should be flexible, however.  As much as we would like attorneys to enter time daily, some are stuck in the habit of recreating time at the end of the month and, if they are equity partners, they can minimize the value of this report by explaining that it doesn’t take into effect their total hours at the end of the month.  Therefore, the report should first filter out any timekeeper that, over the entire range of dates, records the minimum time expectation regardless of whether it was put in daily or all in one day.  If the firm decides that it wants to enforce daily time entry, that is fine.  The report just needs to be flexible in the event that the firm can’t enforce such a measure.

Finally, the report summary should show what timekeepers are accounting for the lost time, as a percentage.

This way you know who may need additional mentoring (or needling) in developing good time recording habits.  To emphasize the importance of recording your time, add  in the report summary  the total days where the target wasn’t missed, the total time missed, the average rate of all timekeeper time lost and the value of the time lost (the total hours missed multipled by the average rate).

Click on the graph to the left to see it in action.  If you are interested in using reports like the one described in this post, please feel free to email me or call (205) 588-4622.

Likewise, if there is staff turnover, how quickly they are up to speed on your processes will determine how long it takes for productivity to reach or exceed pre-turnover levels.

Modeling your processes provide a concrete method for everyone in the firm to know not only what is expected, but why the expectation is in place and how to go about performing the task(s) in a manner approved by the firm.  This has several benefits, not the least of which is a reduction in the “change curve” time,  improved efficiency and the increased capacity to scale.

There is, of course, a process to building the process model.  The first step is to outline all of the processes in the firm.  This includes administrative processes, practice-related processes, client and matter-related processes, and any other process that pertains to firm business.

Once outlined, those who have the experience must brainstorm and put to print all the years of experience that has taught them to know on instinct what to do as the work-flow meanders from question to question.  Mapping this visually helps to find the gaps and gives you the opportunity to take out redundant tasks which may cause bottlenecks that reduce efficiency.

The example to the left is a mapping of a collections process (click on it to view in full screen).  It started with just picking a point in the process, going through the steps, then reading and re-reading to fill in the gaps and add in the details.

Once you have the process visually mapped, the next step is taking each step and reviewing why it is there.  The “why” helps to confirm that the step is necessary – if you can’t figure out why a step is needed, then it isn’t needed.  The “why” is also for new employees or others who may have to temporarily perform the task later.  One of the complaints I often hear from partners has to do with the lack of “ownership” some in their firm have towards files given to them.  In my opinion, a lack of understanding the entirety of the file is one reason an associate may do subpar work.  Thus, part of the process of taking a file from a partner should include a thorough reading of the file, paying particular note of certain things the partner always looks for to help understand the important issues in the file.  Although this is obvious to those with experience, it may not come as second nature to new associates or staff.  The “why” helps them see it from the partner’s perspective without forcing the partner to lose productive time in having to explain it.

This has more than one benefit.  Although highly unlikely (tic)¹, it may be that the partner’s time tested process may miss out on a detail or two that an enterprising associate or support staff discovers.  In cases such as this, having the “why” helps the associate or support staff understand the purpose and he/she then can propose process enhancement, furthering continuous process improvement².  (This can be encouraged through upward reviews).

After providing the “why”, the next part is the “how”.  Use a step-by-step approach so that others can follow the process in an easy-to-understand manner.  An example approach for a collections process would be:

1. Sort AR for collectible and non-collectible accounts;
2. Distribute to responsible attorneys to determine if any should be held from normal process;
3. Determine age of oldest unpaid  invoice;
4. If older than:
   1. 30 days – go here
   2. 45 days – go here
   3. 60 days – go here
   4. etc
5. etc

After completing this tedious but necessary list, model it visually through a tool like Microsoft’s Visio.  An example output for a part of the above process might look like this:

After review of the processes to ensure they are appropriate and are easy for others to understand, make it easily available for your staff to access.  In today’s connected world, this means access through a web browser.  Your site should be easy to access from within the network and should be easy to navigate.  An example site may look like the below (shown without theme – in practice it may mimic your external website’s design):

Besides the benefits discussed above for modeling your firm’s processes, there are quantifiable reasons as well that can lead directly to the firm’s bottom line.  For example, you can assign an amount of time it should take to perform a certain task.  Having this information available allows you to set baselines for performance reviews (efficiency of employee versus the firm efficiency standard).  It also gives the firm an opportunity to offer different billing options to clients; for example, if a client desires more cost certainty, the firm can offer a flat rate based on how long it takes to perform the tasks in a typical case, taking into consideration the facts and the potential to vary from the norm.  You can then add your margin to this number to provide a fee that is both acceptable to the client and ensures profitability for the firm.

As you can probably note from reading the above, modeling your processes is a tedious and time-consuming process in itself.  However, the benefits of taking the time to map, model and follow your processes shouldn’t be understated.  Not only will it improve the manner in which work is performed, but it can bring measurable benefits to your bottom line.

Of Counsel Consulting can help your firm map, model and price your processes so that you attain maximum benefit for taking the time to further the goal of continuous improvement.  Please feel free to call or email us for more information.

______________________________________
¹ tongue in cheek – Go Back
² The idea of continuous process improvement isn’t new but is laid out nicely in a book written by Tom Pryor called Using Activity Based Management For Continuous Improvement that I recommend. – Go Back

Add to that a possible re-emergence of trade wars, and you’ve got the perfect re-enactment of the 1930′s without even having to read a history book!

Below is a graphic showing attorney monthly productivity, any variance from the budget and the attorney contribution percentage.  Clicking on any of the attorney initals changes the data to show the chosen attorney’s productivity numbers.  (You must have the free Adobe Flash Player to view.  You may download it by clicking here).

Graphical dashboards such as the one below provides an easy way for managers to stay informed as to the critical performance drivers of the firm without having to pore over rows of data.  This, in turn, makes the information more actionable and thereby helps focus the firm on reaching its goals.

Feel free to click on any of the sample attorney initials below to see the data change.  If you would like more information on how you can have dashboards like the one below implemented in your firm, please feel free to email me or call 205.588.4OCC (4622).

Worse, the Federal Reserve appears to be acting counter-intuitively by lowering interest rates to “zero to .25%“, leading to speculation that once our economy does rebound, hyperinflation will be the next crisis.  It doesn’t help that our government continues to spend money it doesn’t have.

On top of all this, President-Elect Obama announced that his “stimulus plan” will be somewhere between $600 billion and $1 trillion.  The spending spree never ends.

The time to voluntarily liquidate assets has passed.  Foreclosures dipped in November, but few expect that trend to be anything but temporary in spite of Fanny Mae’s Christmas gift to renters of homes in foreclosure proceedings.  Best to hold on to assets and try to keep as much cash on hand as possible.

We can hope that the aggressive moves by the Federal Government will prevent another depression, but it sure seems like we are about to embark on the same policies of the Roosevelt administration that arguably kept the country in a depression for an entire decade.  One of the proponents of further governmental intervention is oddly a scholar of the Great Depression.  Fed Chairman Ben Bernanke believes that the cause of the Great Depression was the lack of action by the Hoover administration to stop banks from failing and by keeping interest rates too high.  In Bernanke’s mind, it was Hoover’s inaction that caused the depression, not Roosevelt’s activism.

There are (at least)  two arguments as to what caused the Great Depression.  One argument postulated by Irving Fisher and furthered by Bernanke states that debt deflation caused the Great Depression and, in at least Bernanke’s case, government inaction during the 3 1/2 years between the stock market crash of 1929 and the swearing in of Franklin Roosevelt caused productivity to become depressed and unable to recover in spite of FDR’s programs for an entire decade.

Fisher was not exactly on target with his arguments in his lifetime (from wikipedia):

The stock market crash of 1929 and the subsequent Great Depression cost Fisher much of his personal wealth and academic reputation. He famously predicted, a few days before the Stock Market Crash of 1929, “Stock prices have reached what looks like a permanently high plateau.” Irving Fisher stated on October 21st that the market was “only shaking out of the lunatic fringe” and went on to explain why he felt the prices still had not caught up with their real value and should go much higher. On Wednesday, October 23rd, he announced in a banker’s meeting “security values in most instances were not inflated.” For months after the Crash, he continued to assure investors that a recovery was just around the corner.

Once the Great Depression was unavoidable to notice, he theorized that debt deflation was a major cause – debt deflation that could have been avoided (according to some) had the Hoover administration taken more aggressive steps to intercede.

The other argument is that it wasn’t Hoover’s inaction that led to the Depression but the Smoot-Hawley Act of 1930, which raised tariffs on goods sold to trading partners and led reciprocal action, skyrocketing unemployment and global isolationism.   Those who would argue this would point that both low interest rates and ample liquidity were available in 1930, but that due to economic uncertainty, few wanted to borrow and take risks.  Further, FDR prevented the economy from pulling itself out of the depression by overly taxing the population (specifically the producers) and redistributing wealth using a “trickle-up” philosophy of using government to employ the people.  Even with FDR’s policies, unemployment was still over 19% in 1938.

You can argue both arguments are right and wrong.  It is plausible that at least having a Federal Reserve that would have released funds to troubled banks could have avoided the panic that led to over 9,000 banks failing in the 1930′s.  However, there is ample evidence that government intervention did more to exacerbate the Depression than remedy it.  The primary force that led us back to economic expansion was the Second World War.

Unfortunately for Bernanke, debt deflation is intensifying in spite of his actions to improve liquidity.  What may come from all these measures, however, could spur the same depressed conditions that he is trying so hard to avoid.  If liquidity does improve, even moderately, inflation will be a large concern.  The question will then be whether it would be better to allow inflation to run amok or to raise interest rates and threaten the improving economy.

One thing I feel relatively certain in predicting:  so long as the government intervenes in the economy, there will not be a lot of certainty in the markets, which will result in further volatility.  And, it doesn’t appear the government is planning on taking its hands out of the economy anytime soon.

Who can blame attorneys for being optimistic?  Regardless of the economy since at least the early 1980′s, lawyers have enjoyed consistently increased business and profits.  This has led to a complacency and a denial of the economic conditions that are facing the country.

Law firms aren’t alone.  In fact, the “big three” auto makers (Ford perhaps excepted) are acting out of a similar denial as they attempt to scare Congress and the President into paying for their internal problems.  Who didn’t see the failure of GM coming?  Was no one noticing the extravagant pensions being offered to the employees?  Did anyone who dared notice believe the ever slimming margins would cover the ever growing benefits?   Not likely.  As the Legislative and Executive branches delve deeper into the phantom pockets of our tax base, a  nice summary of the fallacy of “avoiding acting like Herbert Hoover” has been inked in an opinion piece by Todd J. Zywicki in the Wall Street Journal.

Law firms, though not nearly in the long-term slide as the domestic auto industry, is more sensitive to this economic downturn than many attorneys would like to admit.  Many firms have been spoiled by margins that exceed 50% without spending more than a passing glance at the indicators that led them to such bounty.  The issue isn’t so much a drop-off in business, though some firms who specialize in areas that are in the midst of collapse will certainly feel the pain.  Rather, the issue is how firms will retain good talent, retain their expected incomes and avoid layoffs of associates.

These are regular issues for most industries but are foreign to the mid-size law firm.  Many firms pride themselves in their “family” atmosphere, which includes the bratty sibling rivalries that are tolerated when times are good.  Salary incongruousness may seem a bothersome itch when profits are high, but once the deadwood becomes heavy the scratching becomes intolerable.  Some may panic to find their balance sheet showing a loss without ever seeing it coming.  Drastic change is put into place – at a time no worse to prepare.  No more is it wise to visit a market when hungry than to suggest change while in the midst of a spiral.

Yet our economy has afforded all of us time to prepare.  It was suggested by many (myself included as far back as March) that our economy was in for some hard times.  Firms with the foresight and gumption to plan and hold timekeepers accountable for providing not only quality service to their clients but ensuring prompt billing and payment for the betterment of the long term financial health of the firm are in a position now to profit over the firms who were complacent.

It’s not too late, however.  Many firms are just now seeing the first bumps in the road.  It is my opinion that the economic downturn is just now really beginning to hit middle America.  The massive layoffs (over 533,000 in November) are an indicator that the many months of body blows caused by the collapse of the credit and housing markets (not so unlike what happened in the late 1920′s, speaking of Herbert Hoover) are finally taking its toll.  The question now is, where is the bottom?

No one knows.  That is a troubling concern that should make you want to hug every dollar your firm receives and not let go of it.  In times such as these, power goes to those who hold cash.  This may change if our government attempts to over-spend its way out of our economic downturn (thereby devaluing the dollar, leading possibly to hyperinflation combined with stagnant productivity – a prescription for the “d” word), but as of right now, many believe that the economy should rebound sometime in 2010.

In my opinion, firms need to pay more attention to the profitability of each fee earner and place more emphasis on marketing activities and their key profit drivers.  Please feel free to email me (by clicking here) if you would like some ideas on how to not only retain your current income, but increase profits during an economic downturn.

Kensington seems to be moving more and more into the business traveler’s briefcase and with their innovative mice, they look to be establishing a foothold on the market.  I have both their Slimblade™ Bluetooth Presentation Mouse and the Trackball Mouse.  This review will focus only on the trackball mouse.

First, a little history of my distaste for trackballs.  Whenever I had to help someone at their desk and they had one of those large, rounded trackball mice, I winced.  I hated having to try to maneuver around the desktop with this clumsy and uncomfortable mass that seemingly required strong middle fingers.  I never felt comfortable using them and never really gave one a chance to convince me that there was utility in the idea.

With that prejudice, I did find the concept of this mobile trackball mouse intriguing.  The reason is not so much the trackball itself; it is more the functionality possibilities.  Kensington didn’t just place a trackball in it – it gave the user the choice of using the trackball as a pointer (regular mouse function) or as a (rounded) wheel to scroll down and across documents.  To change the function of the trackball, you need only double-click a button surrounding the ball.

Before I get to how well Kensington delivers on this, I’ll speak to the basic functions of the mouse.

1.  Footprint – the mouse is acceptably small (not the smallest and it won’t fit in your outdated PC Card slot as some will but it doesn’t take much space in your bag) and is light as you would expect from any portable peripheral.  It uses two AA batteries and has a power-saving mechanism that puts it into sleep mode when your computer is turned off.   You can also turn it off by pressing the button surrounding the trackball for 3 seconds.

2.  Usability – I read some reviews where users complained about dirt getting into the trackball roller and causing it to lose its trackball function.  I haven’t experienced that yet but understand any frustration that this would cause since it doesn’t appear that you can take the trackball mechanism apart to clean it.  In my experience with the mouse, the trackball worked flawlessly as did the laser that sits under it for normal mouse function.  As a regular mouse, it works well.

Underneath the mouse is a cover that opens and closes around the laser – I assume this is for transit but not sure why it is necessary if the mouse goes into sleep mode.  There is also a large (relative to other mice) blue button that is used to pair the mouse to your computer.

The reason why I wanted to review this mouse was to see if the trackball function would allow mobile users to use a mouse in cramped spaces where you didn’t have room to use a traditional mouse.  How did the Kensington deliver on this feature?

Pretty well in my opinion.  I have found myself using it in chairs and couches, resting the mouse on the arm (or on my lap) and using the trackball as a pointer.  Then, when I want to scroll the document, I double-click on the button, wait for the short delay, then scroll.  When I am ready to use as a mouse again, I double click again.

Granted, this took some getting used to.  At first I found myself trying to will the mouse into behaving the way I was thinking.  However, after some mental training on my part, I became pretty adept at utilizing the mouse as intended.  It literally allowed me to use the trackball both to scroll documents and as a pointer without moving my hand.

The only drawback goes back to my distaste for trackballs.  To me they have always been inelegant and take too much effort to use with any precision.  In this regard, I have to admit that with practice, the trackball can be pretty precise and without much effort.  It is really just an issue of training yourself to work with your finger rather than your wrist.

I can happily say that the Kensington Slimblade™ Trackball Mouse was a good purchase that will be the only mouse in my laptop case for a long time as long as it functions properly.