Analytics                          for Selecting Your                             Dream Team                              ...
Sports                       teams, political poll-                s t e r s , m ajor c or p or at ion s            and re...
Litametrics: Analytics for Selecting Your Dream Team                                                                      ...
defined in the NFL and are more                    Litametrics does have a place in       categorized by areas of law, typ...
Litametrics: Analytics for Selecting Your Dream Teamlitigation portfolio was divided into       their particular docket. T...
Hold all the                                                              .                                               ...
Litametrics: Analytics for Selecting Your Dream Team2.		 Do more work by working more                    principles DuPont...
a statistical model named “Win                      naysayers were dismissive of Silver and         What can we conclude f...
Litametrics: Analytics for Selecting Your Dream TeamFulbright  Jaworski’s 8th Annual Litigation Trends Survey             ...
Litametrics: Analytics for Selecting Your Dream TeamResults from DuPont’s Global               PreView ProfileTMRecoveries...
Have a comment on this article? Visit ACC’s blog at Recoveries Part One           ...
Litametrics Article ACC Docket May 2013
Litametrics Article ACC Docket May 2013
Litametrics Article ACC Docket May 2013
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Litametrics Article ACC Docket May 2013


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Great article from my good friends, Jim Michalowicz and Gardner Courson, on the application of Analytics to improve decision-making to deliver desired litigation outcomes.

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Litametrics Article ACC Docket May 2013

  1. 1. Analytics for Selecting Your Dream Team By Thomas L. Sager, James L. Michalowicz and Gardner G. Courson30-Second Summary Litametrics is the application of analytics to improve decision-making to deliver desired litigationoutcomes. They can be used to rank cases and calculate success probabilities using formulas that include such factors asjurisdiction, judge, plaintiff counsel and claim type. Using Litametrics ensures that all of that intelligence and intellectualcapital is focused on the right cases, the right evidence and the right jury. Litametrics can also help counsel move towardsfinancial management goals by providing a foundation for value-based budgeting and fee models.
  2. 2. Sports teams, political poll- s t e r s , m ajor c or p or at ion s and research institutions have turned to sophisticated analysis of so-called “Big Data.” Why? Patterns exist in large data repositories in many areas of commerce and science that can assist users in making better decisions. ¶ Understanding the trends and consequences of data associated with legal spend can empower litigation counsel to make better and more informed decisions on staffing of a case, budgeting and fee management, valuation of cases, likely outcomes and how to develop strategy to effectuate winning litigation results. Introducing the “Moneyba l l ” equ iva lent to litigation management — “Litametrics.™” ACC DOCKET May 2013 69
  3. 3. Litametrics: Analytics for Selecting Your Dream Team the chief litigation counsel starts making Analytics tools and resources notes: AmLaw 20 firm, good record at trials, offers 10-percent discount off Sabermetrics is the specialized analysis of baseball through objective hourly rates, trial team graduated from evidence, especially baseball statistics that measure in-game activity. top-tier law schools, some of the com- Moneyball: The Art of Winning an Unfair Game is a book pany’s lawyers worked at the firm, etc. about the Oakland Athletics baseball team and its GM Billy Beane. Now, let’s shift to another scene. An Its focus is the team’s analytical, evidence-based, Sabermetric NFL general manager or scout is pre- approach to assembling a competitive baseball team. paring for the upcoming college foot- ball draft. The general manager needs Football Outsiders is a website founded by Aaron Schatz. to identify talent that will shore up the The site aims to bring objective analysis to football that matches team’s defensive line. Looking at the the revolution in baseball writing and analysis over the past 20 scouting reports, the GM highlights years. “We have new methods for analyzing skill players, offensive players who competed in elite confer- and defensive lines, special teams and total team efficiency.” ences and performed on teams that went on to win several bowl games and FiveThirtyEight is a polling aggregation website with a blog created ranked high on the ESPN final season by Nate Silver. During the 2008 and 2012 US Presidential elections, the site compiled polling data through a unique methodology derived from rankings. Physical factors have to be Silver’s experience in baseball Sabermetrics to “balance out the polls with considered, such as body size, speed, comparative demographic data” and “weighting each poll based on the agility and strength. Interviews with pollster’s historical track record, sample size and recentness of the poll.” The the college coaches may give a better result was amazing accuracy in predicting presidential election outcomes. sense about whether the player would fit into the culture and team environ- Big Data are high-volume, high-velocity and/or high-variety information assets ment. If we draft this player, how much that require new forms of processing to enable enhanced decision making, will it cost to sign him? insight discovery and process optimization as defined by Gartner, Inc. “Outside trial counsel often consider their legal services to be more of an art, and Litametrics is the application of and developing strategies to deliver de- this leads many of them to resist focus onanalytics to improve decision-making in sired outcomes (predicting outcomes). efficiency. Today’s best companies, however,any or all of the following areas: selec- Think of the general counsel or chief reward all team members in the organizationtion of litigation counsel (assembling litigation counsel who is evaluating based on contribution levels, and efficiencya competitive team), measurement of responses to an RFP from law firms that in execution is a key variable in creatingproductivity and performance (in-game are hoping to handle the company’s new- value for the enterprise.”activity, total team efficiency), manage- est large mass tort case. While reviewing – ilvio J. DeCarli, associate general counsel Sment of spending (budget, salary cap) the professionally prepared documents, and chief litigation counsel, DuPont Be it on the football field or litiga- Thomas L. Sager has been senior vice president and general counsel of tion battlefield, the traditional process DuPont Legal since 2008. for the evaluation of talent and projec- tion of performance uses much more art than science. When assembling a football team or litigation team, the James L. Michalowicz is president of Michalowicz Consulting LLC. desired result is to have a winning re-; cord, but that cannot necessarily come at any cost. NFL teams are bound to a set yearly salary cap, and throughout Gardner G. Courson is a partner in the Litigation Dispute Resolution practice the season, each team must be at or group of the Taylor English Duma law firm. He is the former deputy general counsel under said cap. For law departments, for Litigation of Tyco International, and the former VP and general counsel of Tyco the analogy is a litigation budget. Fire Security. Going over the cap or budget comes with severe penalties; these are clearly 70 ASSOCIATION OF CORPORATE COUNSEL
  4. 4. defined in the NFL and are more Litametrics does have a place in categorized by areas of law, type of subjective in the corporate world. In litigation management, and there is al- litigation and geography. There may either case, there is pressure to make ready some evidence of success stories. be some grouping of cases based on smart spending decisions. It is important for in-house counsel to size of case, tier levels and signifi- The use of analytics is not completely know how to: cance to the company’s public image. foreign to litigation management. ■■ assemble a litigation team; Litametrics can be used to drill Those who have dipped their toes and ■■ offer sound financial management down further to rank cases by expo- fingers in ediscovery know a bit about by becoming a smart spender — sure level, complexity and “value” applying analytics to perform searches paying for performance; of case. Success probabilities can for documents, or ESI to determine ■■ predict outcomes and develop be calculated using formulas that evidentiary value. Analytics can help strategy to achieve those include such factors as jurisdiction, identify themes, high-impact docu- outcomes; and judge, plaintiff counsel and claim ments and the chronology of events ■■ acquire talent to fill new positions type. For repetitive areas, such as in a more systematic way. Not only in the front office. employment and product liability can analytics improve both the quality litigation, data history is available, and cycle time in making document Know your turf first which can be used to profile matters review decisions, but they can also alert Before assembling a team of players and assign a price or value (i.e., how the litigation team to issues that may to take the field, Litametrics can be much it will or should be to litigate a impact case strategy. The scary, “Oh applied to better understand the type given matter). no, the computers are replacing the of team that is needed. Most chief When DuPont Legal embarked on lawyers” changes to, “Big data is helping litigation counsel have a sense of creating a new model for managing lawyers make more informed decisions; what makes up their litigation docket litigation, one of the first steps was to smarter decisions lead to better results.” or portfolio of cases. Matters are perform a needs assessment. The totalMER ACC HLF PG AD OCT12issue:Layout 1 8/20/12 9:29 PM Page 1 – MERITAS LAWYER – FRED SELLER CHOOSE WISELY. WE HAVE. Ottawa, Ontario, Canada Meritas understands the inherent challenges of choosing the right legal counsel, especially when searching outside of your jurisdiction. That’s why our law firms undergo rigorous vetting and are required to maintain quality standards for membership. Whether you need a firm next door or halfway around the world, Meritas offers exceptional service, local insights, local rates and the assurance of a wise decision. 170 full-service, independent law firms 7,000 experienced lawyers Local representation in 70 countries THE RIGHT CHOICE FOR THE RIGHT LAWYER.
  5. 5. Litametrics: Analytics for Selecting Your Dream Teamlitigation portfolio was divided into their particular docket. The fear is that Moving to a value-basedfour groups based on levels of impact. any case could go bad and expose both budgeting and fee model “Brain surgery,” the inside counsel and the company. requires some trust and■■■■ Specialty litigation, Unfortunately, there is another conse-■■ Product liability/personal injury, quence from this type of behavior — transparency between and spending more than what the value of inside and outside counsel.■■ Commodities. the portfolio warrants; in other words, Litametrics can offer a treating every case as a “bet the com- foundation where both The conclusion was that the greater pany” case. The analogy can be made parties are working from thepercentage of the litigation portfolio to professional football teams thatresided in levels three and four, and for overspend on high-priced, big-name same data models and movethese cases, simple, efficient legal ser- free agent players. Spending money for closer to alignment on thevices were required. High-impact cases a team of all high-priced talent does financial management goals.required higher-impact firms, and not necessarily translate to wins on thefirms without the high price tag could playing field or in the courtroom.handle low-impact cases effectively. In an analysis performed in 2012 Financial management: The chart on page 74 providesusing Counsel Management Group’s Controlling the spend insight into how law departmentsAFADATA proprietary system, Starting in 1994, the National Football are exerting their energies to controlDuPont was offered insight into the League set up a salary-cap system, costs and assure that money is beingcosts associated with engaging various whereby each team is limited to how spent wisely.types of firms. A further deep dive into much money can be spent on players’ Although it is not completely clearthe analysis would show whether the salaries in a given year. The first salary from looking at this chart, there islevel of spend based on impact level cap was set at $34.6 million per team. enough information in the marketof the firm was in line with the “value” In 2012, the salary cap was $120.6 mil- from similar surveys that showor “impact level” of the cases where lion. There are provisions for building “price reductions” typically meanoutside counsel was assigned. into the cap number player perfor- hourly rate or volume discounts. In 2000, the Patriots drafted a rela- mance bonuses that are negotiated Why is this important?tively unknown quarterback named between the player and team. These In an article titled “Points of Law:Tom Brady in the sixth round. He was incentive bonuses are treated as “likely Unbundling Corporate Legal Servicesthe 199th player selected overall. The to be earned” and thus calculated into to Unlock Value” (Harvard BusinessPatriots’ roster in 2012 featured 18 the team’s salary cap figure. The NFL’s Review, July/August 2012), theplayers who weren’t drafted by the NFL league office approves all contracts so, authors warn, “With excess capacity,when they left college. While all teams presumably, no individual team should technology and new capacity all shift-have access to a wealth of data on these go over the cap. In those instances that ing power to corporations, it is notplayers, the Patriots have the ability to a team does go over the cap, the forfei- surprising that many of them havelook at that data in a unique way, and ture of draft picks or severe financial renegotiated terms with their it into their overall system. They penalties are levied. In most cases, the firms’ concessionsunderstand the processes that drive The comparison of the NFL sal- have come in the form of discountedsuccess for their organization, and ary cap system to a law department’s rates, which by their nature are lim-have been able to quantify and evaluate budget is not a perfect match. One of ited and unsustainable.”the available resources that will most the reasons for the NFL salary cap is to In his book “Declining Prospects,”positively impact those processes.1 provide an even playing field for teams Michael Trotter, partner at the Atlanta- A common mistake made by law to compete in the league. The teams based firm Taylor English, dives intodepartments is following the “always with the greatest resources to spend the detail of law-firm economics andassign the best lawyers to my cases” cannot buy a championship. Having the Profits Per Partner model. Trotterselection method. This often translates said this, once again, let’s be reminded specifies four ways that a firm caninto hiring the most expensive lawyers that spending the most does not increase its Profits Per Partner (PPP):or law firm for any given matter. Doing guarantee winning results. But beyond 1. Charge clients more by increasingso makes sense to the degree that inside this, there is an essential element that hourly rates or increasinglitigation counsel want the best protec- resonates with general counsel: Spend payments through alternative feetion in defending complex cases on the company’s money wisely. arrangements. 72 ASSOCIATION OF CORPORATE COUNSEL
  6. 6. Hold all the . You’re ahead of the game when the cards are in your favour. Our litigators are the aces in your pack. That’s why WeirFoulds is a “litigation firm through and through with a marvelous track record”, Chambers Global.Protect your future. Gain a competitive advantage. WeirFoulds llp. 416.365.1110
  7. 7. Litametrics: Analytics for Selecting Your Dream Team2. Do more work by working more principles DuPont Legal adopted in Costs) that is defined as a “win.” This hours or using more lawyers. implementing value-based billing are: type of arrangement is the total “pay for3. Acquire new clients. • The company wants to pay for performance” model in that it rewards4. Reduce overhead. results, not time; firms for efficiency and effectiveness. The conflict arises when PPP of the • The focus is on how well services The VBF with TLC brings value beyondlaw firm is under threat through such are provided, not how long it the fixed fees-only arrangements, whichefforts by inside counsel to negotiate takes to provide them; are only able to offer some predictabil-discounted hourly rates. Logically, • The key expectations of both ity on outside counsel maintain a strong PPP, the firm DuPont Legal and the outside It is important to keep in mindincreases the number of billable hours. firm are clearly stated and that, just as the NFL captures incen-Given that outside counsel are typically addressed early in the negotiation tive bonuses in calculating the salarythe originator and formulator of the process; and cap, the law department needs to ac-litigation budget, and consideration • The staffing and work processes are count for likely bonus payouts in theis weighed heavily on the PPP law identified and adapted to working annual budget.firm economic model, why are we not in a value-based billing model. As part of its Value Challengesurprised to see survey results such as program, in the fall of 2012, thethose listed on page 76 from Fulbright Moving to a value-based budget- Association of Corporate Counsel Jaworski’s 8th Annual Litigation ing and fee model requires some trust (ACC) launched the “Value Based FeeTrends Survey? and transparency between inside and and Budget Project” and offered this outside counsel. Litametrics can offer solution as part of a benchmarkingLitametrics provides a different a foundation where both parties are pilot program to large member com-Profits Per Partner (PPP) model working from the same data models and panies seeking to rise on the financial “The billable hour incentivizes inefficiency move closer to alignment on the finan- progression chart. The beauty of this because lawyers get paid based on how cial management goals. When looking effort is that participants receive value- much time they spend on a matter.” at the chart on page 76, it would be fair based productivity tools and support – oshua Frank, general counsel secretary, J to say that most inside counsel/outside services, but also benchmarking data DHL Americas2 counsel are working between financial from those who share the goals of management levels three and six. value-based financial management. What if PPP were redefined as Pro- The ultra-model, Value Based Fees DuPont Legal is serving as the anchorductivity Per Professional? (VBF) with TLC, designates those ar- member for this innovative project. What would be the core questions rangements where the fee is based onasked of inside counsel in moving value provided in terms of service, but Predicting outcomes and developingtoward the creation of this new metric? an incentive bonus is also offered to the strategy to achieve those outcomes■■ What are we buying? (Not hours!) firm for delivering a Total Litigation Brian Burke, former Navy Pilot and■■ What should the pieces cost? Cost result (Defense + Resolution Sabermetrics devotee, developed■■ What factors determine value? Staffing/Seniority How legal departments are controlling costs x Efficiency/Hours x Hourly Rates/Fees Making use of The Counsel Man-agement Group’s proprietary litigationbudget templates, DuPont Legal hasintroduced “productivity” and “value”into financial and budget discussions Source: Altman Weil, Inc.with outside counsel. The four key 74 ASSOCIATION OF CORPORATE COUNSEL
  8. 8. a statistical model named “Win naysayers were dismissive of Silver and What can we conclude from the Probability.” Burke’s model was built had a greater confidence in their own Goodman-Delahunty study? Attorneys collecting data from over 3,000 NFL data or perception of how the election tend to be overconfident about their games. Win Probability produces results would turn out. chances of success early in a lawsuit, and odds of a team winning a game based In a study published by Goodman- that overconfidence can seriously skew on decisions made by a team to on- Delahunty, J., et al., titled “Insightful their evaluation of a case. Furthermore, field situations. According to Burke, or Wishful: Lawyers’ Ability to Predict take the wrong case, and the client’s most teams suffer from a “subop- Case Outcomes” (16 Psychology, resources may be squandered; or, take timum equilibrium, with no teams Public Policy, and Law 133 2010), the the right case but build an argument playing the optimum way.” The analyt- researchers interviewed almost 500 that won’t fly with a jury. The result is ics showed that teams didn’t pass lawyers, asking them to predict the the same: less-than-optimal settlements, the ball enough and ran the ball too outcome of some of their pending outright losing, and a dissatisfied and much, and they were far too passive cases, and then compared their predic- perhaps underserved client. on fourth downs, settling too often for tions to the actual results. Forty-four The ability to realistically evaluate a field goals and punts.3 percent of the lawyers interviewed case, then efficiently litigate it, or try the Nate Silver won great acclaim after experienced worse outcomes than they case to a finder of fact, has given rise successfully predicting the results for predicted. Experienced attorneys were to a new breed of products and tools. each state in the 2012 US Presidential no more accurate than their novice What they have in common is that they Election. Silver demonstrated on his counterparts. Indeed, the study’s significantly reduce the guesswork in as- 538 Blog how an analytics model authors noted, “Many of the most over- sessment, and free attorneys to do what based on multiple third-party poll- confident lawyers will be the senior they do best — advocate, strategize, ing data led to a 91-percent certainty partners who may not typically obtain litigate and win. More important, using that President Barack Obama would third-party review or feedback in the this adaptation of Litametrics ensures be reelected to a second term. Some course of their practice.” that all that intelligence and intellectual The secreT To e-discovery is knowing where To look. Exponential growth of electronic information can overwhelm your ability to efficiently manage discovery. That’s where we can help. our data management experience and close relationships with leading e-discovery providers help clients develop defensible strategies using targeted tools that save time and money. Nashville • knoxville • Memphis • washington, d.c. bassberry.com13-BB-157 ACC Docket HalfPg e-Discovery Ad M2 mm.indd 1 3/20/13 8:34 AM
  9. 9. Litametrics: Analytics for Selecting Your Dream TeamFulbright Jaworski’s 8th Annual Litigation Trends Survey a lawsuit within a few months after notice of the suit is received. With a business imperative in many companies to keep cases from going through a lengthy and expensive litiga- tion process, the early application of intelligent and cost-effective informa- tion gathering can lead to reduced costs, faster closure and increased client satisfaction. Quantifying value and increas- ing the probabilities of winning has been instrumental in the rollout of DuPont’s Global Recoveries Initiative. Started in 2004, the key objectives of the Recoveries Initiative are to assert the legal rights of DuPont through thecapital is focused on the right cases, the 78). Seasoned litigation consultants intervention of its legal team, to recoupright evidence and the right jury. facilitate discussion among the cash or other quantifiable rights owed Gardner Courson, a litigation outside and inside counsel to identify to DuPont, to educate and informpartner with the Atlanta-based firm the determinative legal and factual DuPont businesses about potentialTaylor English, and the managing issues and place each of the issues recoveries and to develop resources todirector of Precision Litigation LLC, into an “if/then” hierarchy. The trial facilitate future recoveries.a litigation consulting firm, has been team assigns a probability of winning The Recoveries Initiative is notinstrumental in the development of and losing each issue on the decision a litigation program, although, inan analytics-based tool called PreView tree. Combining all of the probabili- some cases, recoveries do result fromProfile, which is based on a data-driv- ties with the range of possible jury litigation. Business analytics play anen litigation assessment. For Courson, verdicts enables the attorneys and the important role in the success of thisthe magic potion is “turning lawyer client to determine a value range for program, but given that the programintuition into data.” the case. In short, the business intel- is not litigation focused, the proper PreView Profile builds on the ligence process uses real evidence, identifying term may be better coinedconcepts of expert business pro- experienced attorneys and skilled Legametrics — application of analyt-cesses and technology. Applying the facilitators to analyze the dynamics, ics to legal management — comparedtrial counsel’s selection of key search risks, costs and potential outcome of to Litametrics.terms, the process statistically samplesa large set of the pertinent documentsto cull out those documents that arelikely to be most critical in defend- Financial Management Progression Charting or prosecuting the case. Up to20 of those documents or summaryexhibits are combined with the mockvideo testimony of up to five key wit-nesses per side. Along with 30-minute“opening/closing” lawyer argumentsfor each side, the edited and com-pressed review of the evidence is thenpresented remotely to jury-eligiblecitizens of the appropriate venire forlive mock deliberations. The heart of the success-ful PreView Profile model is itsdecision-tree analysis (see page 76 ASSOCIATION OF CORPORATE COUNSEL
  10. 10. Litametrics: Analytics for Selecting Your Dream TeamResults from DuPont’s Global PreView ProfileTMRecoveries InitiativeThe recoveries program relies heavilyon the participation of a multidisci-plinary team with the president ofthe DuPont business unit servingas the quarterback. Members of theteam include the business unit CFO,the legal team’s commercial lawyers,international counsel serving asregional legal recoveries leads, litiga-tion counsel, outside counsel as sub-ject matter experts, and representa-tives from Research Developmentand Sourcing. The team holds twotypes of meetings: strategic reviewand execution review. Analytics areused to identify opportunities with have an ability to get on base, score outside counsel on strategic budgetthe best environment, means and runs and win games. It’s more than management. There was a view thatchances for success (i.e., ability to baseball; it’s a revolution — one that too much deference was being givenachieve desired outcomes). challenges old-school traditions and to DuPont Legal’s outside provid- Data analytics have also been crucial puts Beane in the crosshairs of those ers regarding proposed staffing andin giving the recoveries program legs who say he’s tearing out the heart and activities on litigated matters. Theand countering the cultural-change soul of the game. chief productivity officer, armed withchallenges. The key challenge is to In 1992, DuPont Chairman Edgar dynamic analytics, has new insight onmove from a conservative, risk-adverse Woolard, Jr., challenged his staff to outside counsel performance, similarculture to one of a client-focused, slash more than $1 billion in operat- to Billy Beane’s in baseball — firmsbottom-line-driven organization. This ing costs. Determined to do its part, that know how to get on base (efficientis not to say there is no risk associ- DuPont Legal launched a campaign delivery of work product), score runsated with asserting these rights, but to achieve high-quality legal services (successful motions) and win gamesthat risk is factored into the analysis. at reduced cost. A legal department (case results). The chief productivityUltimately, by positioning the lawyers team, composed of corporate counsel officer has an important seat at theand the business people for success, and senior management, and assisted table when inside litigation counselthe ensuing results, supported by data, by outside consultants, conducted an engage the outside firm in those often-reward the participants for taking a analysis of escalating expenses. The difficult discussions about staffing,more proactive approach. team concluded that litigation would hours required, budget, and efforts be the initial focus of the Legal Model needed relative to the value of the case.New positions in the front office and established objectives to reduce This is part of change management,In the Academy Award nominee cost and increase productivity. At its and the chief productivity officer helpsmovie “Moneyball,” we are introduced core, the Legal Model is an integrated guide inside counsel in making hardto Billy Beane (Brad Pitt), the general approach for managing change within financial management decisions.manager of the Oakland A’s baseball the law department, and for continu- Based on corporate clients’ de-team. Forced to reinvent his team on ously improving how legal services mand for demonstrable cost savingsa tight budget, Beane has to outsmart are provided to DuPont businesses in and value-driven fee arrangements,the richer clubs. The onetime ball- terms of quality, cost and efficiency. law firms are also expanding theirplayer, raised by the traditional rules The DuPont Legal Model is ever infrastructure teams to includeof the game, teams up with Ivy League evolving, and more and more, analytics-trained personnel. Forgrad Peter Brand, a Sabermetrics Litametrics is taking hold. In 2013, example, one AmLaw 100 firm isgeek. In an unlikely partnership, DuPont Legal established a posi- staffed with an attorney heading theBeane begins relying on Brand’s ana- tion titled “chief productivity officer.” project management department.lytics to recruit bargain players that Concerns about “budget creep” war- This “business analyst position” isthe scouts call flawed, but all of whom ranted a new approach to engaging focused on providing quality data 78 ASSOCIATION OF CORPORATE COUNSEL
  11. 11. Have a comment on this article? Visit ACC’s blog at Recoveries Part One to meeting not only the client’s bud- get requirements but also the firm’s bottom line. Toby Brown is the director of Strategic Pricing and Analytics with the law firm Akin Gump. In his article, “The Challenges Negotiating Legal Fees: An Alternative Fee Case Study,” Brown refers to the legal fees negotiation between corporate client and law firm as the “rates dance.” Brown emphasizes that the “rates dance” is a futile exercise that leads to the law firm struggling to make profits under reduced rates and the client not achieving any cost savings. However, he does offer hope: “This frustration is pushing many clients to re-examine the dance and shift the conversation to the fee level. The daysDuPont Recoveries Part Two of just getting a bigger rate discount may be ending. Clients, under inter- nal pressures, are learning to redirect the dance into more healthy, proper fee negotiations.” Litametrics: A common thread There have been many articles and seminars that raise the topic of obtain- ing or offering value in legal services. There are often chants from the offices of the general counsel that sound like pleas of “Desperately Seeking Value.” Litametrics can help in quantifying value and can offer litigation counsel a common thread to develop value propositions that reward both the pro- vider and receiver of value-based legal services. In this way, the science canto the firm’s partners so that they performance from both a financial help us with recognizing the art andcan make more informed economic and qualitative work perspective. improving the practice of law. ACCdecisions and manage their matters Another AmLaw 100 firm recentlyon a real-time basis. As a nod back to hired a director of business manage- Notesthe “Moneyball” analogy, the role of ment and analysis, supporting the 1 Adrian Alleyne, DecisionPath Consulting website, 2012.this position is to teach partners how information governance and ediscov- 2 “Speaking Different Languages:to “play the game” so that they better ery practice group. The partner who Alternative Fee Arrangements for Lawunderstand the economics behind leads this practice relies heavily on Firms and Legal Departments.” Aprilpracticing law. Initially, partners the analytics expert to not only help 2012. ALM Legal Intelligence. 3 “Blessed Are the Geeks …,” Albertwere skeptical about incorporat- prepare pricing for proposals but Chen, Sports Illustrated, December 10,ing this quantitative approach into also monitor activity and financial 2012.their practice. The result, how- impact throughout an engagement.ever, has been an increase in matter Hitting productivity rates is critical 80 ASSOCIATION OF CORPORATE COUNSEL