An addition to the law firm retainer letter

Working with MyCompany PLC – a charter for external counsel

This guide is not a replacement for our retainer letter.  It does not form part of our legal relationship.  Instead it sets out guidance on what I think characterises good external counsel so that our working relationship can be as successful as possible.

1.         Time, cost, quality.

These three characteristics of a project, (originally time, cost, output - correct scope, correct quality) were identified by Dr Martin Barnes in 1969.  There’s nothing unique about law in possessing these characteristics, it’s like any other activity.  The principle is that any activity embraces all three of these factors, but there will always be one factor which must be compromised in service of the others.  So for example a high-quality piece of work conducted in a short timeframe comes with a price tag; lowering the price tag reduces the quality or lengthens the timeframe for delivery.  Which two do I want?  Don’t guess!  Talk to me, to make sure you know which two are most important for this piece of advice.  And in complex matters the answer may be different in different parts of the matter, or change as the matter progresses, so please check in regularly.

2.         Time - deadlines aren’t aspirational

If we agree a time for a piece of advice, there’s a reason I want it by that date – so that’s when I want it.  If you miss the deadline, your advice may be too late to be relevant.  I don’t want it held up because a partner is reviewing it or it needs a final turn when the deadline passes. And I don’t want it held up because you are busy with other aspects of the matter. These other aspects may be less time-critical to me and you should let me know they will prevent you hitting the deadline, so that I can tell you what is OK to move.

You may have had an associate do a first draft of a document or piece of advice ready for a partner to review.  You should be confident in letting me see the draft so we can work on it together and hit the deadline.  I won’t think less of you as a firm if the associate’s work isn’t as refined as if the partner had done it.  Just tell me that’s the route you have taken.  I’ll think more of you for having appreciated the need to put the time task first and to find a way to enable the deadline to be achieved collaboratively.

3.         Cost – and pricing your work

Don’t pad the bill.  There will be no second chances.  And I don’t want to be billed for work which I didn’t ask for, or which is not necessary to fulfil the work I have asked you to carry out.   

Our arrangement is only going to work if it makes economic sense for both of us.  Whether you charge by the hour or on a fixed fee basis, it amounts to the same thing – we both have bills to pay, so our billing arrangements have to meet those requirements.  Whatever our fee structure, there will be expectations set and as we progress through the matter, those expectations may get challenged.  You may feel able to keep pleasant billing surprises until the end of the matter, but if the expectations you set for the cost of advice are going to be exceeded, I want to know early enough to give me a choice – whether to get that piece of advice (serve time and quality) and bust my budget, or to compromise my advice and keep to my budget.

For my part I won’t nickel and dime you, and I will make sure you get paid properly.

4.         Quality - don’t just throw it over the wall.

I am sure anything you send me will be good, well-considered and informed legal advice.  But please remember I haven’t asked you to provide legal advice for my education.  I’ve done so in order to help me solve or progress a business issue.  So take a moment to think about what I’m going to do with the advice when I’ve got it – and be ready to ask me if you are in any way unsure.  That way if I’ve got a deadline coming, you won’t purely focus on hitting any deadline we’ve agreed, you will also think about what you need from me and my colleagues ahead of that deadline so that you ask us in good time.  And you will provide your advice in a way (its format and content) that enables me to make the best use of your advice. 

What you are experts in is providing legal advice – which is a different focus from mine, which is to secure the best outcome in a given situation, and to which your advice is an input not the output; it’s a means not an end.  The smaller we can make the gap between your legal advice goal and my use of it to further my goal the better we will work together.

5.         I know you know

I asked you to act in a given matter because I knew from the market, recommendations or my own knowledge or prior experience that you have an expertise in the area.  So you don’t have to spend lots of time telling me about the reasons for your advice, just to persuade me that you know about the area.  There will be cases when you need to make sure I know the legal background well enough to make informed choices in the light of your advice, and I accept that you may need to set out the factual background on which you are advising in some cases, but you should never feel you have to recite the background just because you are concerned that the advice you are giving may be negligent and you need to paper your file for that instance.  If you base your advice always on your failing to get it right, we’re both in trouble.

6.         Staffing the case

I expect you to staff the case in the way that best meets my requirement, not your billing targets.  I also know you’ve a business to run and part of operating that business means training people on the job.  I’m very happy to have newer lawyers working on my cases, but they must be supervised appropriately (somewhere between being smothered and allowed to run wild). 

On a related point, I don’t need you to show me how committed you are to my organisation by setting unnecessary deadlines for yourself.  If I want a piece of work on my desk by 9 a.m. on Monday morning, I will ask you.  Don’t promise it for that day if I haven’t asked you – especially as I know it won’t be you, but a bunch of hard-pressed associates who will lose their weekend meeting the requirement.

7.         Building relationships with my colleagues

I expect you to build strong relationships with my non-legal colleagues.  That helps me when we have difficult advice to give, and it helps you secure the relationship with the organisation not just me.  But your primary relationship with the organisation is held through me and I will not accept your going behind my back to have my colleagues change the way in which you and we work together.

8.         Fixing holes

You will be carrying out work for us some of which will be highly important and complex, and you may get things wrong.  So might I.  We need to have the relationship where we can be open and frank about these occasions and where we can be grown-up and constructive about putting it right.  My view is that you learn the most about an organisation by seeing how it puts things right when they have gone wrong. 

9.         Let’s both make each other look good

We both do things which are difficult.  Not everyone we work with will like what we do, just because of what we are doing.  It helps me if you do well, because part of my role means deciding where to get external counsel involved, which counsel to engage and managing them once appointed.  So if you get it right – including in the ways set out in this document – I am fulfilling my role, so it is in my interests for you to look good.  And it’s in your interests too; if I look good then it increases the trust and responsibility placed in me and that gives me the greater freedom to appoint you again.

A framework for legal issue management (2) - the three categories

Handling the business as usual. 

The “business as usual” (BAU) category of activity covers those activities which represent the organisation’s purpose, as distinct from those activities which are necessary for but incidental to those purposes.  So in the case of a retailer, the purchase and resale of goods, and in the case of a bank, the acquisition and provision of finance – distinguished from, for example, employment issues which are required by each of them, but are not the things they do for a living.  The distinction between the two is not hard and fast, the difference being in the type of strategic oversight which the general counsel should exercise over the activities comprised in each of the categories.

Often a lawyer tasked with heading a legal team will have a background in the law and business or operation of business as usual activity.  Most IT GCs have at some time in their careers negotiated IT contracts; most insurance GCs have a background in insurance law.  This deep domain knowledge can be a hindrance as well as an asset to a GC, particularly one undertaking their first leadership role.  The hindrance can arise through the temptation to get too involved in the BAU work just because it feels familiar and therefore comfortable.  Lawyers can give themselves permission to do this kind of activity because they know what they are doing, and so can feel they must be doing “something useful” by intervening.  This can however represent a poor use of the lawyer’s skills and experience, and inevitably does not reflect the breadth of the role to which the GC was appointed.  While GCs here might be able to do a better job as a result of their extra experience, excessive intervention may amount to time spent reviewing work which is already fit for purpose, making the GC’s contribution less valuable than they may think.

There will be occasions where it makes sense for the leader to get involved in a matter because of its significance or complexity.  (And where the GC is, in effect, a one-man band, the options for handling BAU transactions are reduced.)  The “sense” however has to come from an overall organisational perspective, and not represent the GC’s “comfort factor” coming to the surface; nor should the GC fall into the trap of saying, or believing, that they need to continue to get involved in advising on BAU matters so that they retain their credibility (with their team and business colleagues alike).  However, there is no credibility to be had for GCs in doing a job that they should not be doing. 

The best value that the leader can add in this area is in using their experience to look at BAU matters as a whole; to look for overall trends and patterns.  This a view which can be of significant value to the organisation – it can realise significant savings in time and cost in managing these matters, or help the organisation make a substantial step forward in the way it approaches these matters at an organisational as well as legal level.  These are contributions of enormous value which may not come from anywhere else.  So if there is a single way of capturing the GC contribution when moving into the BAU arena, it is to move away from doing the BAU, and to refocus on seeing the big pictures in BAU activity.

Keeping the lights on

“Keeping the lights on” is a way of referring to all of an organisation’s regular activities that are necessary for it to continue in operation, but which are not the things that the organisation does as its main purpose in life.  They constitute a critical facet of a legal leader’s role, which may cover a broad sweep of activities (on a regular basis, everything that isn’t BAU).  Issues such as company secretarial (or similar constitutional reporting and maintenance) activities, employment law advice and property transactions are common to most organisations, but unless they develop into significant issues with the capacity to damage or even bring about the end of the organisation, do not have an appreciable effect on the organisation’s direction or success.  One consequence of this is that, so long as nothing goes wrong, they have a limited profile in the boardroom; in that respect they resemble utilities like electricity which “just happen”.  No one got hired because they were great at ensuring the electricity supply worked, but some have been fired for failing to ensure that it continued to work.  In the same way, a GC is unlikely to prosper simply by keeping on top of the “keeping the lights on” class of activities; their success will be much more characterised by the strategic insight they bring to business as usual matters and to their skill and judgment in handling one-off issues.  But if the organisation suffers harm because the legal effort for one of these activities goes badly, the effect for the GC can be deadly.

General counsel have to navigate between a rock and a hard place in relation to keeping the lights on issues.  The rock consists in giving these issues a disproportionately high level of attention, often a temptation for those new to more general legal advisory roles and for whom the issues at stake may not have been encountered since they were training, if at all.  General counsel should bear in mind that the organisation’s profit or other success measures are unlikely to be significantly affected by whether these issues are given five-star legal advice or something lower.  But giving them too little attention – the hard place which opposes the rock – is to risk under-calling issues which have the capacity to move into the “bet the company” category.  In the employment realm, say, a grievance with the capacity to develop into industrial action or a costly or reputation-threatening unfair dismissal claim is typical of the type of event which has the potential to morph from an every day issue to one which dwarfs all other of the organisation’s issues - switching off the metaphorical lights.  Moreover the general counsel needs to be alert to the particular interests of the management he or she is working with.  If the CEO is a former HR executive, HR issues may gain a greater level of attention in the organisation’s operation than they strictly merit – but the general counsel who recognises this and stays on top of them will gain the ear of the CEO, and so heightened influence, than the general counsel who plays the issue on its strict merits.

There is no one size fits all prescription for handling these “keeping the lights on” issues.  Not only are organisations different, but in a single organisation, different issues may require different approaches.  However, these different approaches will usually be designed around achieving two principal strategic aims.  These are to ensure that the level of advice applicable to day-to-day instances is adequate and that the mechanisms for general oversight and for managing exceptions are sufficient, clear and exercised when appropriate.

Setting up the system for undertaking the day-to-day entails careful thought from the start (of the GC’s tenure or of the new system).  The GC needs to set an approach for handling issues within scope - whether it involves internal colleagues, external lawyers or other resources - for getting and handling advice correctly at the start, and then making sure that they get sufficient management information to discern trends in these issues and early warning of exceptional items.  If the system is well set up and there is a reliable practice to deal with exceptional items, the general counsel can then leave the system to do its work between periodic reviews.

Calibrating the point at which exceptions are identified, and keeping the calibration under observation, is key to the success of managing this kind of issue.  Placing too close a level of control will mean that more exceptions are identified, taking more of the general counsel’s time away from other categories of issue and beginning to defeat the object of handling the issues in this way.  Allowing too loose a level of control means that issues meriting the general counsel’s attention will not be identified, at least until they have assumed too great a profile for comfort.  Keeping the changing mix of resources, experience and, often, inclination of the parties involved under periodic review will enable the general counsel to have the best chance of calibrating the valve marked exception to best effect.

Betting the company

“Bet the company” issues are the issues which make the headlines.  They defy general approaches.  They may sometimes have a unique character of their own, but are also often issues which are BAU or “keeping the lights on” issues but require special treatment because they have or acquire a distinctive scale or character. 

Most issues of true significance do not quite raise the existential threat the description implies; they may have the capacity to damage the organisation’s reputational or financial position appreciably, but not to put it out of operation. These issues can, however, present an existential threat to the GC’s career with the organisation.  They can be generally positive (a transformational acquisition – although a bad acquisition can become a very dangerous thing very quickly), or dangerous (compliance challenges, product recalls, high stakes litigation).  They often involve external counsel (but not always – especially in larger teams with the capacity and capability to handle these issues internally). 

In those cases which do not involve external counsel, the general counsel must take the role of principal legal lead within the organisation. The chief requirements of them in this situation are to be mindful of the level of legal knowledge and experience in such a matter which is necessary; and to ensure that the team members responsible for managing the issue on a day to day basis feel supported without feeling the pressure of the significance of the issue.  Acting as a heat shield can sometimes be the single most significant contribution the GC can make in this kind of situation. 

However there will be other instances where the general counsel must recognise that more specialised knowledge or experience from external lawyers is required, and should not let personal pride, budgetary constraints or a misplaced sense of their own role in the matter to cloud their judgment and prevent them from appointing external counsel as promptly and as thoroughly as the issue merits.  In these cases, general counsel must quickly make a decision as to whether they are to operate in the first seat position – where the external lawyers provide support but the internal team leads – or second seat position, where the external lawyers are driving the strategic approach to the matter in hand. General counsel should always put their organisations’ needs first when deciding which of these roles to take; doing so will always, in the long run, be in their best interests too, even if in the short term they have concerns that they are no longer seen to be asserting personal influence and control over the situation.  In a case where the general counsel takes second seat and lets the law firm direct the response, they should be confident in their own decision and not seek to control all communications between the law firm and their colleagues as if they were some postbox.  If they have chosen the law firm well, that choice will be recognised to their credit, as will finding the most efficient way of harmonising the legal effort with the needs of the remainder of the organisation.

There will, in any event, be lots of other valuable opportunities for the general counsel to add value.  That might be managing the process of securing all appropriate internal approvals for an acquisition and gathering together market data for competition clearance matters; or keeping the litigation strategy continually reviewed against the organisation’s operational or business strategy.  In all cases there is a valuable role to be played acting as a bridge at a business level between the legal matters and other operational considerations.

Whatever the situation, any matter of this significance will be very likely to be outside the normal experience not only of the general counsel but of all colleagues in the rest of the organisation.  Freezing rabbit-like in the headlights of an issue on account of its difficult or essential character will not do the general counsel or the organisation any favours.  Everyone involved in an issue of this nature will be faced with their own limitations of experience or skills, so the well-advised general counsel will, while being aware of their own limitations, recognise that they are the person in charge and act with confidence. 

As with the other two categories, each organisation brings its own distinctive requirements which can profoundly affect the analysis and approach.  However general counsel can find a welter of issues facing them in their roles and using a triage approach like the one described here may provide a route to prioritising issues by the means used to address them at a strategic level.

A framework for legal issue management – introduction.

Lawyers executing management roles – as General Counsel, Head of Legal or head of a department or division – have no shortage of advice available to them, especially when starting out in a new role.  Some of this advice will come from former or new colleagues; some from law firms; and some from legal writers and commentators.  Most of this advice is tactical in nature – what to do in the first 100 days of a new role; how to manage external lawyers, etc. 

A general counsel will need to guide an organisation through the legal aspects of anything and everything which can happen to an organisation, whether good, bad or deadly.  One way of segmenting these manifold and different issues is to classify them by their discipline (for example, litigation, secretarial, compliance etc.).  This approach can help general counsel decide which of their internal and external resources are most appropriate for the relevant discipline.  But it does not assist the GC in taking a qualitative view of the different facets of their role, by which I mean making enough sense from the noise to work out what needs the GC’s immediate attention and what can be left.  This article is intended to offer a framework for a strategic, qualitative approach for analysing the GC role and so for making decisions around how to execute it, based on my experience of carrying out legal management roles and of advising others who do so.   (For the sake of readability, this article and the three articles it introduces refer to those carrying out legal management roles as general counsel, but they are intended for any in-house lawyer in a management role.)

The starting point for this framework is to look at issues not from a legal disciplinary perspective, but rather from the perspective of the organisation.  Any organisation, on a day-to-day level, has a mixture of activities which cluster around doing the things that the organisation exists to do and those activities which are not directly concerned with the organisation’s purpose, but which happen anyway.  And then there are those one-off activities which may belong to either category, but which stand out because of their scale or other attributes. 

Moving from the organisation’s perspective to the GC’s responsibility, these allow the legal management role to be seen as relating to these three blocks of activity.  The first category, of activities which relate to the things the organisation exists to do, translates in legal terms to activities like customer contracting, oil drilling, provision of public services etc. – “business as usual”.  The second category corresponds to activities such as property transactions, employment law and purchasing, none of which directly relate to the organisation’s raison d’être (unless it is, say, a real estate company in which case property transactions clearly do) – “keeping the lights on”.  The third category – the “one-off” – matters, can relate to either category, but are sufficiently out of the ordinary to require individual treatment.  These may include the issues that define an organisation’s future (or if they go adversely, may see to it that the organisation has no future), sometimes called “bet the farm” or “bet the company” matters, as well as other issues which do not bear the same level of existential threat, but are distinct and front of mind for the organisation’s management team.

This analysis does not set out to be the only way to look at the work which an in-house team carries out.  It is just one lens through which the complicated set of activities and relevant factors can be considered, and other perspectives (including the disciplinary approach referred to above) play an important role.  But it can provide a vantage point from which to survey the in-house legal battlefield and make informed choices about where to deploy resources most effectively by reference to the organisation’s needs and priorities.

A well-managed legal function will bring distinct approaches to these three groups, even if resources are thin, the work seems overwhelming, and the team over-stretched.  In fact when the team is over-stretched by a mismatch between demand and resources, it is more important than ever to keep these three categories of work distinct in the minds of the legal team and especially of the GC, as it will help to shape the allocation of attention and resource between the matters that are under management.

Perhaps the single most important thing to hold onto in relation to this category analysis, is that the categories are not fixed.  While the distinction between the business as usual category and the keeping the lights on category will be clear in the majority of cases, there will be occasions when changes in an organisation’s purpose or markets, or other circumstances, moves an activity from one category to the other. 

Already mentioned is the fact that while, for most companies, real estate transactions are incidental to their main trade or other activity, they become central to purpose for property companies.  So at a company which hitherto has no business in property transactions but then branches out into real estate deals after a change in direction or an acquisition, real estate can move from the second category to the first – at least in part, an observation which leads to a second point. 

Some activities may straddle the categories, so in the real estate example, properties which are bought and sold to generate money for the company will fall into the first category, property acquired for the company’s own use and occupation will remain in the second. 

On occasion, an activity may start life as a keep the lights on type of activity but move to the first category over the course of a period of time.  Purchasing became more central to the IT company I worked for as its business model made the incorporation of products and services from third parties a more significant facet of its customer projects than had been the case when it was more involved in computing design and manufacture.  And as a further example, there are companies which originally held a modest portfolio of intellectual property rights to protect their key technologies, but which then saw the opportunity to make money from these portfolios from licensing opportunities.  The single thread joining these different points is that GCs must stay alive to the subtle changes in how the activities comprised in these categories may change in their organisations’ perspectives over time.  As we will see, the strategic requirements for handling business as usual matters can vary appreciably from the requirements for keeping the lights on matters.

The other category change occurs when an everyday matter – of either business as usual or keeping the lights on category – takes on a wholly greater significance to move into the “one-off” category.  Some of the activities in this category are, from the outset and their very nature, “one-off” – a bribery allegation, a sizeable acquisition, or a critical piece of litigation will clearly call for significant attention straight away.  More difficult to identify are issues that appear to be business as usual or keeping the lights on issues, but which either acquire a scale or other characteristics that mean that they move into this category of significant individual items – a common example being an employment dispute that starts off life as a normal-looking grievance or dismissal, but which metamorphoses into something altogether more significant because of a whistle-blowing or discriminatory dimension, or because it threatens to bring in industrial action from fellow or former workers.   

There are no exact parameters governing the boundary between categories, it is a matter for judgment.  The judgment will be the GC’s if he or she has built a reputation in the organisation for exercising sound judgment over what is of first importance and what is of lesser importance.  It may however be the judgment of the CEO or another senior figure in the organisation; in these cases the GC needs to be in the right side of the line and not be found to have underplayed the significance of an issue and so given it insufficient attention.

The general counsel’s role of course encompasses more than these three categories, which are not designed to manage the internal and external resources of the legal team, or to assist in legal issue horizon-scanning, as just two examples.  But exerting a strategic control over the main types of legal advisory work which the general counsel and team must cover will not only ensure that this work is carried out effectively, but provide more time and thinking space for these other issues.

So – this is a model for treating all legal issues as belonging to one or other of three categories, and for noting how as circumstances change, issues may move from one category to another.  The second part of this article, which will be published separately, looks at some themes and approaches for each of the three categories.

Products in Development

We spend a long time at work, and longer still if we include the time we spend thinking about work and our role in it, including what role or job we might seek next.  But the amount of time we spend considering what skills or know-how we need to acquire or develop in order to enhance our current job, or enable us to attain that other role, and developing those skills, is for most of us, a very modest proportion of our total work time.  The UK Solicitors’ Regulation Authority requirement for annual training is 16 hours or two days (currently – the SRA is consulting on whether to remove the requirement for a set mandatory amount of training per annum), so that less than one per cent of a solicitor’s time in a typical year is required to be spent on formal accredited training, either acquiring new knowledge or skills, or ensuring that existing knowledge and skills are maintained up to date.

Spending one per cent of our working year on preparing ourselves to work as effectively as we can represents a disappointing ratio.  Sports professionals and amateurs alike spend most of their sport time in practice and coaching so as to maximise the outcome of the game.  Acting without proper preparation puts one in mind of the position of Flanders and Swann’s amateur English sportsman faced with foreign nations’ success, founded on a caddish insistence on “practice beforehand which ruins the fun” (A Song of Patriotic Prejudice).

I am not suggesting that in business life the proportion of time spent on training or practice should emulate that which governs in sport.  I am however suggesting that not nearly enough time or thought is put into training and skills / knowledge practice as would seem likely to give the best overall result.  Even doubling the amount of time spent training would still leave 98% of the working year left for doing the things for which we are, after training, better prepared and more effective.

Given we are working with limited time on training and development, what steps can we take to make sure that the limited resources we have are deployed as effectively as possible?  It’s a very broad topic, the full extent of which is outside the scope of a short article, but I’d like to offer a couple of general thoughts about training.

Firstly – what sort of training and development decisions should we take about individuals? 

At one level the choice lies between technical training or personal development training.  Lawyers typically undergo training of one or other of two key types; technical training on particular areas of law (so for example, a high-level symposium discussing the legal aspects of virtual currencies, or that well-known format, the competition / property law / contract law update), or more personal development-orientated skills training (dealing with difficult people, managing teams and so on).  

If a lawyer is going to undertake technical training then some decisions are easy – train in an area which is relevant to the lawyer’s current area of activity or one the lawyer wants to get involved with, rather than in an unrelated area.  (I’ve seen, as the deadline for attainment of the 16 hours’ requirement looms, lawyers go on all sorts of esoteric and irrelevant courses.)  But whether to go for technical training or personal development is a more nuanced decision.  Lawyers must of course have command of the areas on which they advise, and take steps to ensure that they remain in command in the face of changes in the law or decaying memory.  But more often than not, once a lawyer has reached a certain level of experience and competence in an area of law, further training in it will have a modest incremental effect.  Personal development has the capacity to improve the lawyer’s effectiveness across all of the areas where he or she is active.  So general counsel should always consider whether the investment in having a member of their team undergo more technical training is going to produce as appreciable a return as more widely applicable skills-based training.  I liken the interaction between technical capability and personal skills to that between a car engine and its transmission.  The most powerful engine (technical capability) is no good if the car’s transmission (personal skills) is deficient.

If the decision is to invest in a lawyer’s personal development, there are still choices to be made.  It’s not the case that all lawyers need to be equally competent at the full range of inter-personal, influencing, leadership and other personal skills.  The general counsel of a betting company once told me that he had a number of lawyers who were specialists in gambling law in his team, and who only ever spoke to other lawyers.  He didn’t regard their “client-handling” skills as importantly as he did those of his team who did work closely with the business when hiring them.  Instead, he purely wanted the best technical lawyers in the gambling area – so for this technical group, time spent training in business partnering (for example) would be wasted.  It is somewhat like the (perhaps apocryphal) tale of the top salesmen who underwent extensive training in administration, an area identified as a weakness in their annual reviews.  It would have been so much more effective to have invested in developing the salesmen’s sales techniques and ensuring that they had good administration support, so that they could concentrate their time an energies doing the things that made them uniquely valuable to their employers.  Decision-making about training at an individual level has to be undertaken in the light of what individuals may personally desire, to support their current and potential future roles, but also in the light of their role in the team.

Sometimes it is the role – or more accurately, the status – of an individual in the team which settles decisions around training.  Some teams have a budget per individual which shapes a level of equality around the amount spent on each team member (and potentially the amount – assessed in value as well as quantitative terms – of training received).  Others however have an overall amount to be spent on the team as the team’s leader sees fit.  Individual circumstances will often have a significant bearing on the decision that a general counsel or head of legal may make on allocating training resources, but they should also think of their team and its development needs in a systemic way.

Which member of the legal team has the most significant effect on the overall performance (and the perceived performance) of the team?  Some reflection on this question may produce some surprising results.  It may well be that the legal team’s success stems from the contribution of the star performer of the team, be it an individual or a group; their ability to get to the nub of a business issue, to balance the competing tensions and to provide clear, compelling advice to the business might be the factor which characterises the legal team to the rest of the organisation.  They might operate in the area where the skill of the legal team most directly translates into the operational success of the organisation as a whole, through supporting an effective sales channel, or successful, cost-effective dispute resolution (or in the case of my betting company general counsel, perhaps it was the back-room experts for their ability to get their company the successful first entry into lucrative, highly-regulated waters).  In these cases, the best bang for the general counsel’s buck may not be realised in trying to bring the rest of the team up to this level, but in making this star individual or group the best they can possibly be across all fronts.

In other teams, however, it is the performance of the weakest individual which will make or break the team’s success.  Back to sport again – a fascinating study of top-class football (The Numbers Game – Anderson and Sally, Penguin, 2013) found that the biggest impact on a team’s success or failure was not the quality of their star player, but rather in most cases, the contribution of their weakest player.  This was because the vulnerability became the focus of the other team’s tactics - if the first team’s weakest player played on the left side of defence, then their opponents would attack down their right in order to involve this weakest player as much as possible.  The general counsel whose business colleagues would try to exploit the legal team’s weaknesses by deliberately finding things to do for the weakest member of the legal team perhaps needs to find a new job, but the effect is the same even without the calculation of a determined opponent, if the weakest member (or again, group) ends up characterising the legal team’s profile and achievement.  The general counsel in this situation will place the majority of the training effort not with the stars of the first case, but this trailing group, at least as a preliminary endeavour to see if they can be brought up to scratch as an alternative to taking more drastic action.

Training and development can often be left to an organisation’s human resources, or to the individuals themselves.  It can however unlock the success of the whole team if it is given thought at a systemic level as well as the individual level.  Well worth that one per cent.