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Determining industry values to strengthen attorney-client relationships and performance

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Determining industry values to strengthen attorney-client relationships and performance

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Content Running Head: DETERMINING INDUSTRY VALUES 1

Determining Industry Values to Strengthen Attorney-Client Relationships and Performance
Susan Friedman
University of Southern California

DETERMINING INDUSTRY VALUES 2

Abstract

An increasing demand by corporations for alternative billing arrangements, as reported
by the Association of Corporate Counsel in 2009, indicates that the expectations and
responsibilities of lawyers need to complement their client’s business strategy in a cost-effective
manner. The purpose of this study is to examine the client’s perspective on value received from
outside counsel in terms of cost and performance for work on a litigation matter within the food
services industry. Additionally, the overall relationship between the client and outside counsel is
connected to aspects of value and business strategy.
The population consisted of 150 members of the National Restaurant Association as of
July, 2012. Contact information for 50 in-house counsels for these restaurants was obtained
from Wolters Kluwer Corporate Counsel Profiler, www.martindale.com, or The Directory of
Corporate Counsel 2011-2012. Through a maximum of four attempts, 12 in-house counsels
completed either an online survey or a phone interview.. The client’s views of being satisfied
with outside counsel’s handling of the matter, the client’s evaluation of the matter, and the
likelihood of the client using the same counsel in the future are key components of the survey.
Results showed that in-house counsel valued a wide variety of behaviors that fell into the
categories of knowledge, professional skills, relationship between in-house and outside counsel,
and benefits to the organization. Results also identified behaviors not necessarily associated with
the outcome of the matter that strengthen or weaken a relationship. These insights contribute to
how law firms can align their resources to client work so that is advantageous over their similarly
sized competitors. Additionally, law firms can identify the essential values needed to sustain a
longer-term relationship with these clients and earn their future business. These aspects can be
incorporated into their competency models and cultural norms.
DETERMINING INDUSTRY VALUES 3

TABLE OF CONTENTS

CHAPTER 1 ................................................................................................................................... 8
Introduction to the Study ............................................................................................................. 8
Background ............................................................................................................................. 8
Conceptual Underpinnings for the Study ................................................................................ 9
Statement of the Problem ...................................................................................................... 10
Purpose of the Study .............................................................................................................. 11
Research Questions ............................................................................................................... 11
Limitations, Assumptions, and Design Controls ................................................................... 12
Definition of Key Terms ....................................................................................................... 12
Conceptual Framework ......................................................................................................... 14
CHAPTER 2 ................................................................................................................................. 15
Review of Related Literature .................................................................................................... 15
The Concept of Value ............................................................................................................ 16
Performance Expectations and Responsibilities .................................................................... 17
Standard Knowledge and Skills ........................................................................................ 18
Definitions of Competency ............................................................................................... 19
The Relationship between In-House and Outside Counsel ................................................... 21
The Role of In-House Counsel ......................................................................................... 21
Competitors ....................................................................................................................... 22
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Outside Counsel ................................................................................................................ 23
Accountability between In-House and Outside Counsel .................................................. 24
Professional Accountability Consequences for Lawyers .................................................. 25
Benefits to the Organization .................................................................................................. 25
Providing Organizational Value ....................................................................................... 25
Client Satisfaction ............................................................................................................. 26
Determining Whether Performance Resulted in Valued Services .................................... 27
Determining the Possibility of Repeat Business ............................................................... 27
Conceptual Framework ......................................................................................................... 28
CHAPTER 3 ................................................................................................................................. 29
Research Design and Methodology .......................................................................................... 29
Problem and Purposes Overview .......................................................................................... 29
Research Questions ............................................................................................................... 30
Population and Sample .......................................................................................................... 30
Data Collection and Instrumentation ..................................................................................... 32
Solicitation to Participate in the Study.............................................................................. 32
Collected Responses ......................................................................................................... 33
The Survey Instrument ...................................................................................................... 35
Data Analysis Procedures ...................................................................................................... 38
Documenting the Responses ............................................................................................. 39
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Analysis Method for Research Question #1 ..................................................................... 39
Analysis Method for Research Question #2 ..................................................................... 41
Analysis Method for Research Question #3 ..................................................................... 41
Advantages of Analysis Methods ..................................................................................... 41
Limitations ............................................................................................................................. 42
Conceptual Framework ......................................................................................................... 43
CHAPTER 4 ................................................................................................................................. 45
Findings ..................................................................................................................................... 45
Research Question One: What do In-House Counsel of U.S. Based National Restaurant
Chains Value When Working eith Outside Counsel on Litigation Matters? ................... 46
Professional Skills ............................................................................................................. 48
Management of resources and materials ............................................................... 49
Writing skills ......................................................................................................... 50
Strategy development............................................................................................ 51
Analysis................................................................................................................. 52
Benefits to the Organization ............................................................................................. 52
Final resolution ..................................................................................................... 53
Financial results .................................................................................................... 54
Company reputation and relationships.................................................................. 54
Behaviors that impact costs .................................................................................. 55
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Billing ................................................................................................................... 56
Knowledge ........................................................................................................................ 57
Company. .............................................................................................................. 58
Law. ...................................................................................................................... 61
Industry. ................................................................................................................ 62
Relationship between Outside and In-House Counsel ...................................................... 62
Interactions between in-house and outside counsel .............................................. 63
Stated expectations................................................................................................ 65
Longevity .............................................................................................................. 66
Summary ............................................................................................................................... 67
Research Question 2: How do the Quality of Relationships between In-House and Outside
Counsel of U.S. Based National Restaurant Chains influence the Likelihood of Future
Business?........................................................................................................................... 67
Characteristics of Strong Satisfaction and Future Business Ratings ................................ 70
Behaviors reflecting knowledge and skills ........................................................... 70
Behaviors reflecting relationships ......................................................................... 71
Indicators of Characteristics that Weaken Relationships .................................................. 72
Behaviors reflecting knowledge and skills ........................................................... 73
Behaviors reflecting relationships ......................................................................... 74
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Research Question 3: How do in-house counsel of U.S. based national restaurant chains
determine the effectiveness of outside counsel? ............................................................... 75
Conceptual Framework ......................................................................................................... 76
CHAPTER 5 ................................................................................................................................. 78
Implications ............................................................................................................................... 78
Valuable Personal Insights .................................................................................................... 79
Implications for Practice ....................................................................................................... 80
Implications for Future Research .......................................................................................... 81
Chapter Conclusion ............................................................................................................... 82
REFERENCES ............................................................................................................................. 84
ATTACHMENT A: MEASUREMENT INSTRUMENT FOR NON-MEDICAL RESEARCH 89

DETERMINING INDUSTRY VALUES 8

CHAPTER 1

Introduction to the Study

Background
Over the past several years, the media and professional legal associations have observed and
commented on the way law firms are paid for the services they provide to clients. In their articles “ACC
Value-Based Fee Primer” (2010) and “What Do Hours Have to Do with Value?” (2009), the Association
of Corporate Counsel (“ACC”) presented survey results from The Legal Intelligencer showing that non-
hourly fee arrangements with law firms constituted more than 10% of an in-house counsel’s annual
budget, which was an increase of 27% between 2008 and 2009 (Paulmann & Hackett, 2009). They also
noted findings by the Wall Street Journal that fee arrangements that are different from the traditional
hourly billing rate increased by $4.5 billion between 2008 and 2009. The ACC also documents multiple
accounts of law firms who continually increase their legal fees despite pressure from their clients to find
ways to reduce legal costs. American Bar Association meetings also address efficiency and cost-
effectiveness. For example, at their 2012 Annual Meeting in Chicago, IL, the American Bar Association
invited in-house counsel of major companies to speak to their members about what they value from
outside counsel services (American Bar Association, 2013). These observations have prompted the ACC
to establish a “Value Challenge” initiative to establish connections between legal costs and value of
provided services. Although alternative fee arrangements are increasing, the billable hour remains well
within the comfort zone for both clients and law firms, and change is likely to occur only with steady
demand from corporate decision makers (Plummer, 2012).
Because law is an aspect of business that is used very frequently, a solution to the
discrepancy between legal costs and provided services must occur. Bird (2008) shows how an
approach to the way a company handles the legal aspects of their business, which is referred to as
DETERMINING INDUSTRY VALUES 9

their business strategy, can translate into profitability and a competitive advantage. Bagely
(2010) includes specific lawyer responsibilities as they connect to competition activities,
regulation, social norms, and company resources. Law firms have the purpose of helping their
clients meet their business strategy, but Hodge and Reyes (2011) identify a difference between
the client perspective of advantages to outside counsel services (e.g., reduced costs, timely
results, increased internal legal expertise, resolution of legal problems, reduced risk), and the
intentions of what outside counsel feels that they provide to clients (e.g., responsiveness,
technical resources to positively impact business, good advice, and a contribution to business
strategy). They found that outside counsel needs to measure their time in understandable terms
as connected to a client’s business strategy. These accounts show that expectations and
responsibilities of outside counsel need to complement their client’s business strategy in a way
that is cost effective.
This discrepancy presents an opportunity to look at the relationship between outside
counsel and clients, and identify how outside counsel can provide value that positively
contributes to their clients’ business strategies. If outside counsel provides services that are
distinguishable from their competitors and contribute to business strategy, they are likely to be
selected to do the work that is needed by a company. To have a competitive advantage, an
outside law firm can ensure that they provide the support needed to meet the expectations of
client companies within a particular industry and jurisdiction.
Conceptual Underpinnings for the Study
To address this discrepancy, the values a client has for legal services will be explored.
Building upon a definition of value, performance expectations by in-house counsel of law firms
who represent them, the relationship between in-house and outside counsel and the benefits
DETERMINING INDUSTRY VALUES 10

outside counsel brings to the organization will be explored. When client perspectives on legal
services are known, lawyers can be provided with many of the specific job responsibilities and
competencies needed for a certain practice area, along with what is likely needed for future
transactions with those clients.
Statement of the Problem
The changing views of professionalism since the 1930’s has shifted the role of lawyers
from a traditional role of acting on behalf of public interests to a more modern role of acting
more individually with a commercial interest (Carter & Corbin, 2009). The authors explain that
the way lawyers approach their work can have ethical implications, such as pursuing a client-
oriented action rather than a more profitable action for their law firm. A lawyer’s billing
practices reflect the culture of their firm and how they see their professional role. When a client
has an engagement with a law firm, they expect that the lawyers are working in their best
interests. The client’s trust in how lawyers approach their work is vital to a strong and reliable
relationship (Vischer, 2011).
Legal associations advocate work done in the best interests of the client, but clients are
voicing dissatisfaction with the rising costs associated with the work being done by lawyers
(Plummer, 2012). Additionally, clients have expressed their preferences for certain behaviors
connected to legal work. On behalf of the American Bar Association, Tallieu (2012) guides law
firms on how they can reduce legal costs without compromising results. His suggestions include
(a) meeting with clients to determine if anything can be learned from their experiences with a
similar matter, (b) utilizing their staff, (c) having a clear understanding of goals and strategy
before work begins, (d) working well and effectively with others, and (e) choosing the right
jurisdiction. An account of an American Bar Association panel discussion of in-house counsel
DETERMINING INDUSTRY VALUES 11

held at an annual meeting in May 2012 also showed the concern of in-house counsel over billing
protocols, and the way litigation work is handled. Staffing, communication and specific
knowledge of the clients business were discussed. These billing protocols and other behaviors
highlight the need to look a little more closely at the work being done by lawyers within law
firms because clients are questioning the value of work done by their outside counsel. Behaviors
of lawyers can have a direct impact on costs incurred for work done for their clients, and can also
greatly impact the potential for obtaining additional work from the same client.
Purpose of the Study
The purpose of the study is to examine the client’s perspective on law firm performance
for a litigation matter. In-house counsels’ interpretation of satisfaction with the outcome,
evaluation of the work performed, and the likelihood of retaining the same outside counsel for
future business should identify essential behaviors that reflect their values. The behaviors that
can strengthen or weaken their relationship with outside counsel regardless of the litigation
outcome will also be explored, as will in-house counsels’ methods for evaluating the matter. By
having an insight into what is considered valuable for clients within a particular industry for a
specific litigation matter, law firms can align their employee and organizational resources to the
work needed by clients in a way that is advantageous over their similarly-sized competitors.
Research Questions
1. What do in-house counsel of U.S. based national restaurant chains value when
working with outside counsel on litigation matters?
2. How do the quality of relationships between in-house and outside counsel of U.S.
based national restaurant chains influence the likelihood of future business
DETERMINING INDUSTRY VALUES 12

3. How do in-house counsel of U.S. based national restaurant chains determine the
effectiveness of outside counsel?
Limitations, Assumptions, and Design Controls
Limitations may be present with respect to the small number of participants who
participated in this study. The study focuses on the members of a particular professional
organization in the restaurant industry, and the results may not represent the perspective of other
restaurants who are not members of the professional organization. Results are also not large
enough to generalize to a larger population. Questions given to participants in this study are
subjective in nature, and may not be fully understood by the respondents in the way intended by
the designer, despite the intention of a through explanation. It is assumed that respondents will
be truthful in their answers. This study focused on information pertaining to a particular
transaction. Different results may have been found if multiple transactions were discussed with
the respondents.
On a more personal note as the researcher, my work experience within a large law firm
likely caused me to have biases in my approach to developing this study and analyzing the
results. I was both a litigation paralegal, and held a leadership role with the development and
facilitation of paralegal training programs for approximately ten years. My motivations to
conduct this study were to gain insights into how to identify client values and behaviors that
could be beneficial to a law firms internal training programs as well as potentially contributing to
their profitability through a customer service orientation.
Definition of Key Terms
Billable time: Attorney, law clerk, paralegal or other support staff time that is chargeable to a
client.
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Billable hour: A unit of time used by an attorney, law clerk, or paralegal to account for work
performed and chargeable to a client. Billable hours are usually divided into quarters or tenths
of an hour.
Client: A person or entity that employs a professional for advice or help in that professional's
line of work.
Law firm: An association of lawyers who practice law together, usually sharing clients and
profits, in a business organized traditionally as a partnership but often today as either a
professional corporation or a limited-liability company. Many law firms have a hierarchical
structure in which the partners (or shareholders) supervise junior lawyers known as
“associates,” who are usually employed on a track to partnership.
NAICS : North American Classification System (2012): “The standard used by Federal
statistical agencies in classifying business establishments for the purpose of collecting,
analyzing, and publishing statistical data related to the U.S. business economy.”
Full Service restaurants: (722511) Patrons order and are served while seated, then pay after
eating. Alcohol and entertainment may be included.
Limited Service restaurants: (722513) Patrons order a specialty snack or a non-alcoholic
beverage and eat it near the restaurant.
Cafeterias, Grill Buffets, and Buffets: (722514) Patrons select food and drink items that are on
continuous display.
Snack and Nonalcoholic Beverage Bars: (722515) Patrons order a specialty snack or
nonalcoholic beverage.

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Conceptual Framework
To address the conflicting approaches of the traditional law firm’s request for payment of
services by billable hours and the client’s more recent requests for alternative fee arrangements,
it would be helpful for law firms to gain insights into how clients within an industry determine
good value for services received. A review of literature shows that value is very subjective.
Establishing a relationship where law firms provide good value to a client has a greater chance of
allowing a law firm to obtain new business with that client. This insight could assist law firms
with guidance for developing their employee and organizational resources in order to
consistently meet the needs of clients over a long period of time. The review of research from
the past 10 years, the methods for analyzing research and the results are all oriented to the
perspective of in-house counsel.

DETERMINING INDUSTRY VALUES 15

CHAPTER 2

Review of Related Literature

A law firm can meet client needs more effectively by knowing what their clients expect
to receive as a result of utilizing the law firm’s services, such as litigation. Clients’ needs are
connected to having a competitive advantage within their industry, complying to requirements
within their jurisdictional setting, and the achieving the goals associated with their business
strategy. Providing valued services requires law firms to demonstrate that they have employees
with the knowledge and skills to understand their client’s perspectives and do the work needed to
help their client’s reach their business goals. A better understanding of client perspectives can
strengthen relationships and likely increase the ability for law firms to provide sustained value to
clients. In order to answer the research questions, the following bodies of literature have been
reviewed below: the concept of value, performance expectations and responsibilities,
relationships, and the benefits of performance to the organization.
As these aspects are presented, it is helpful to distinguish the referenced sources between
what is considered empirical as opposed to what is considered non-empirical. This literature
review incorporates both sources in order to reflect a broader scope of perspectives from research
and practice. Articles are considered empirical when they utilize generally acceptable qualitative
and/or quantitative methods. Quantitative and qualitative methods are summarized by Capaldi
and Proctor (2005) who references research done by Ponterotto and Grieger (1999). Quantitative
methods are described as having a natural science perspective with a measurable reality that
utilizes deductive methods, is hypothesis theory driven, and seeks to understand laws and causes
(pp. 253-254). Qualitative methods are described as having a human science perspective with
multiple realities dependent on context and social norms that utilize inductive methods, is
hypothesis generating, and seeks to understand meaning behind a researched topic (pp. 253-254).
DETERMINING INDUSTRY VALUES 16

The approach to research within the legal industry is different from research within the
social sciences because law students are not taught empirical research practices and do not
typically work with others in the social sciences where empirical research is practiced (Hillyard,
2007). Hillyard (2007) explains that legal research is typically done independent of others and
involves a close analysis of legal texts, whereas social science research often involves
collaboration and the use of inductive and deductive methods to further understand a particular
field of study. He/she notes that social science researchers are either objective or an integral part
of research where reflection is an important component, whereas legal researchers aim to
influence reasoning and provide clarity based on their expertise and experiences. These
distinctions help to understand the perspectives of the authors who contribute literature
referenced in this chapter.
The Concept of Value
A wide variety of definitions relating to value can be found in research as well as in
professional organizations. Some of these definitions come from empirical research, and others
come from non-empirical articles. For example, Chatain (2010) reviewed data relating to
attorney expertise and performance, and a client list from a United Kingdom law firm. He
suggests that clients value services provided by a law firm that demonstrate industry knowledge
and the client’s company products or services. From the client’s perspective, Chatain (2010)
explains that the law firms that have more client knowledge than their competitors will provide
added value for those clients, and provide “economies of scope” where work can be utilized
more than once. In his review of how transactional lawyers add value, Schwartz (2007) identified
five potential ways that value could be provided to clients. His results, which were obtained
through an emailed survey to transactional lawyers and their clients, found that outside counsel
DETERMINING INDUSTRY VALUES 17

primarily reduce costs, with results strongly supporting the reduction of transactional-regulatory
costs and weakly supporting the reduction of client-regulatory. Results also weakly supported
the aspects regarding minimizing litigation, representing the organization to the extent their
reputation is trusted and credible, maintaining client confidentiality, and creating “economies of
scope” to efficiently complete non-legal work. Although not directly empirical in nature, Hodge
and Reyes (2011) reference the “Forensic Corporate Counsel Survey 2010: Do Today’s
Corporate Counsel Hold All the Cards?” by Deloitte & Touche and state the same idea that
outside counsel adds value to work done for their clients by reducing costs against their nearest-
sized competitors.
Non-empirical articles from professional associations in the legal field also define value.
The Association of Corporate Counsel assert that what is valued is quality of work, costs, and an
agreed upon way to measure results in order to determine value. They emphasize value in terms
of the way clients pay for legal services categorized into measurable outcomes, in their entirety
or in part, that can serve as benchmarks as work is completed (Paulmann & Hackett, 2009). An
article published by the American Bar Association magazine GPSolo describes added value as
conveyed outcomes that provide both immediate and future benefits to the client (Tyner, 2012).
Performance Expectations and Responsibilities
Substantial efforts have been made by both legal practitioners and researchers alike to
identify essential responsibilities of being a lawyer. In the U.S., The McCrate Report was
established in 1992 to identify skills and values needed by entry-level lawyers, and the report
was updated in 2005 by American Bar Association members to create the New ABA Standards
and create expert reports (Bernhard, 2010; Munneke, 2003; Penland, 2008; Winik, 2005).
Similarly, the Australasian Professional Legal Education Council (APLEC) created competency
DETERMINING INDUSTRY VALUES 18

standards for both entry-level lawyers in 2000 and was updated in 2002. These standards are not
mandatory and need to be adopted by jurisdictions within these respective countries. An example
of this is found in Bernhard (2010) who identifies standards for public defenders through the
Georgia Public Defenders Standards Council and the American Bar Association. These non-
empirical resources are supported by additional empirical resources to identify competencies of
practicing lawyers. Margolis (2007/2008) advocates a unified standard for legal research
techniques so that malpractice and ineffective representation is avoided. Penland (2008)
identifies basic competencies for transactional lawyers through a review of literature. The scope
and number of these published efforts show that there is a conscious awareness of the need for
consistent practices throughout the profession.
Standard Knowledge and Skills
There are common standards among all of these sources. Winick (2005), Bernhard
(2010), and the APLEC reference advocacy, alternative dispute resolution, and interviewing
skills. The APLEC, Munneke (2003), Penland (2008) and Winick (2005) all mention the
importance of negotiation and drafting skills. Munneke (2003), Polden (2012), and Winick
(2005) state the necessity of additional skills pertaining to counseling, problem-solving, and
organization/management of legal work. Additionally, the APLEC, Munneke (2003), and
Polden (2012) mention the importance of oral and written communication. Polden (2012) also
speaks to leadership skills and competencies. Leadership, according to Polden (2012) is defined
as “a process by which an individual or a group influences others to achieve positive and ethical
change” (p. 903). They must be credible and exhibit the specific characteristics of knowledge of
the subject matter, demonstrating advanced technical skills, having a vision for action or change,
possessing a strong morality, and desiring to facilitate action or change (Polden, 2012).
DETERMINING INDUSTRY VALUES 19

Penland (2008) mentions the importance of business structures, investigating facts and
researching the law, identifying and dealing with the ethical aspects of practice, as well as the
specific practice areas of real estate, tax, marital dissolutions and estate planning. Margolis
(2007/2008) found that research standards could be established through surveys to indicate the
common practices throughout the profession as well as court decisions regarding unacceptable
research practices. Munneke (2003) also lists legal analysis and reasoning, legal research, factual
investigation, communication, and litigation/alternative dispute resolution. Values encouraged
by Munneke (2003) revolve around the ideas of competent representation, promoting the
profession, providing access to legal resources, and an ethical orientation. Common standards in
the public domain can serve as a helpful starting point for essential job responsibilities and
competencies within a law firm setting. They can simplify a wide range of responsibilities to
make them clear and explicit (Bernhard, 2010).
Definitions of Competency
Competency has been formally documented in literature for approximately 40 years
(Campion, Fink, Ruggeberg, Carr, Phillips & Odman, 2011), with specific credit going to David
McLelland in 1973 for his article called “Testing for Competence Rather than Intelligence”
(Rodriguez, Patel, Bright, Gregory & Gowing, 2002). Different approaches have been applied to
various professional settings throughout that time. There are several perspectives with respect to
how competency can be conceptualized. The review of literature by Pinnington (2011) resulted
in the idea that competency of a person included an understanding of themselves, their work, and
their resources. Iqbal and Kahn (2010) states that competency involves the accumulation of
personal qualities to give a person the capacity to perform effectively and efficiently. The
definition by the Office of Personnel Management provided by Rodriguez, et al. (2002) takes a
DETERMINING INDUSTRY VALUES 20

holistic approach and considers a person’s interpersonal skills as well as their job related
knowledge, skills and abilities. Another focus is provided by Ley, Kump and Albert (2010)
where the specific knowledge and skills needed to perform are acquired and can be continuously
learned.
Gangani, McLeen and Braden (2006) conducted a literature review on the various
definitions of competency and found an additional seven frequently cited definitions dating back
to 1982. They state all of the aspects of competency previously described, but also mention the
necessity of complimenting workplace goals, objectives, and the impact of personal motivation,
self-image, values, and interests. A couple of definitions also make the connection to being both
a reliable measurement and a validated decision tool for the purposes of separating different
levels of employee performance. The common aspects of the definitions from Gangani, et al.
(2006) and those found in the previously-mentioned articles relate to an introspective
understanding of the knowledge, skills and abilities (KSA’s) of a person, and how they can use
those KSA’s to perform in the best possible way within the context of their organization. The
aspects of the definitions that slightly differ pertain to personal orientation and the utilization of
what a person can contribute to an organization.
Competency has general definitions that relate to the demonstrated knowledge, skills, and
abilities of a person, but Sandberg and Pinnington (2009) and Pinnington, Kamoche and Suseno
(2009) focus on defining professional competency through the observations of corporate lawyers
within a large law firm. They determined that competence can be based on action, understanding
and practice, with practice being the most important because it incorporates the knowledge, tools
and social relations of an organization. Differences in the professional competence of the
corporate lawyers were based on the understanding of their domain. Sandberg and Pinnington
DETERMINING INDUSTRY VALUES 21

(2009) found that a more comprehensive understanding of a domain developed through
experiences builds competency. This definition compliments the training techniques supported
by research that advocate building upon a learner’s prior knowledge. Competency models
identify the various responsibilities associated with stages of expertise that professionals may
have as their experience develops.
The Relationship between In-House and Outside Counsel
The Role of In-House Counsel
In-house counsel is responsible for acting on behalf of the organization to protect their
business interests (Bagley, 2010). In her description of the characteristics and activities of
knowledge workers, which includes lawyers, Scott (2005) emphasizes the importance of
collaboration, autonomy, and communication. According to Scott (2005), these aspects help
knowledge workers obtain an identity within an organization based on their communication
networks that are established to accomplish their work. She continues to explain that through
communication, an identity is established, and a perception of the organization and others within
the organization is developed.
Bagley (2010) comments that sophisticated corporate managers will utilize in-house
counsel by involving them with their overall business strategy plans rather than asking them to
simply carry out previously decided actions. In this role, in-house counsel has the advantage of
understanding their organizations’ tacit knowledge and creating trusted relationships within the
organization. This allows them to be privy to management decisions and organizational
resources (Bagley, 2010). Interaction between in-house counsel and company board members
can serve as an indicator of how law is seen as a factor against competitors (Bird, 2008).
DETERMINING INDUSTRY VALUES 22

Schwartz (2008) found that in-house counsel typically has a good reputation and is seen as
capable of handling complex matters.
Competitors
The role of in-house counsel may be reflective of how their company approaches legal
strategies in order to enhance their position against their competitors (Chatain, 2010). This
understanding can help outside counsel to better represent their client in terms of alignment with
organizational goals, and it can indicate how in-house counsel will act towards legal activities
involving legal personnel both inside and outside of their organization. Bagley (2010) states that
corporations have to find a delicate balance between taking advantage of opportunities and
minimizing risk, but that if done right, value can be created through a corporations’ knowledge,
capabilities and relationships. An organization can find opportunities in a variety of forms, such
as social causes or patents (Bagley, 2010) or political activity (Bird, 2008). The most
advantageous approaches are those where legal strategy is not easily imitated over a long period
of time by a corporation’s competitors (Bird, 2008).
Five specific approaches to law were identified and discussed by Bird (2008). The first
stage is described as an avoidance strategy where law is used in emergency situations.
Corporations who use this approach see law as unfair, and actions may be illegal unless they are
curtailed by regulation or litigation. Actions taken are very easily imitated by competitors. The
second stage is that of compliance, and law is seen as a necessary business expense. In-house
legal personnel are valued in that they check company actions against legal rules. Actions are
interconnected and support one another. These compliance approaches are also easily imitated
by competitors.
DETERMINING INDUSTRY VALUES 23

Companies can also reflect the third stage, which is prevention. By adopting this
approach, companies promote actions that will prevent forced legal action in the future and
embeds these actions into relevant corporate activities. These actions are not likely to be either
present or easily imitated by competitors in the short term. The fourth approach, advantage, is
shown where good legal practices are set forth as goals within the organization. In-house counsel
is involved with business strategy, and employees are encouraged to improve so that growth and
effective practices can occur. Imitation by competitors is more difficult because of the inherent
feedback loop that is present with this approach. Lastly, Bird (2008) describes the fifth
approach, transformation, as one where the company uses law to create a competitive advantage
that improves many areas within the organization. Value is created in unique ways that were not
previously considered. Although this approach can be sustained over the long-term, it is not
easily imitated by competitors. In addition to strengthening the relationship between in-house
counsel and outside counsel, the approaches described by Bird (2008) can also lead to benefits to
the client’s organization.
Outside Counsel
An advantage to using outside counsel is their objectivity, which may not be entirely
possible internally since in-house counsel is embedded within the culture of their organization
(Bagley, 2010). In-house counsel’s view towards outside counsel can be influenced by their
level of trust and credibility towards outside counsel. Through an empirical study conducted by
Schwartz (2007), it was suggested that more sophisticated clients relate trustworthiness and
credibility to financial rather than legal information. Research done by conducting in-depth
interviews of those involved in the selection and evaluation of legal services suggest that some
in-house counsel also tend to be less committed to individual relationships, and are more likely
DETERMINING INDUSTRY VALUES 24

to create a more calculating relationship, whereas other in-house counsels are more likely to have
a more friendly or cooperative relationship (Garry & Harwood, 2009). In a paper written to raise
awareness of the impact of trust in the relationship between in-house and outside counsel,
Vischer (2011) explains that in-house counsel has trust “in” their outside counsel when legal
services are more task-related, and they trust “that” outside counsel will not act against their
business interests when working on a legal matter (p. 1099). These accounts indicate that
interactions between in-house and outside counsel can differ depending on how well they know
each other and how they feel their business interests are being represented.
Accountability between In-House and Outside Counsel
When in-house counsel hires an outside lawyer, a relationship between two parties is
established and accountability is present (Hentschke & Wohlsetter, 2004). In-house and outside
counsel are the primary stakeholders in this relationship, and the quality of their relationship can
be either strengthened or weakened based on their mutual understanding of expectations.
Hentschke and Wohlsetter (2004) describe a framework in which a relationship contains values
that reflect what each party cares about, along with decision rights that define who has the
authority to achieve which objectives (the providers), and who has the authority to enforce the
achievement of objectives (the directors). In-house counsels, who are also referred to as clients,
are the directors, and outside lawyers are the providers who are accountable to their clients and
responsible for meeting their needs. The information needed to achieve and implement the
objectives should be known to in-house counsel so that they can monitor how well their needs
are being met (Hentschke & Wohlsetter, 2004).
Within Hentschke and Wohlsetter's (2004) framework, in-house counsel values good
service that produces favorable results, and outside counsel values both challenging work and
DETERMINING INDUSTRY VALUES 25

compensation for their efforts to provide favorable results. Outside counsels demonstrate
internal accountability by having the knowledge required to do what is necessary and appropriate
to meet the needs of their in-house counsel clients. They have external accountability by
producing the results that constitute good service according to their clients. Upon seeing results
from the outside counsel, the client has the authority to determine whether or not they have
provided the expected results and service. In-house counsel trusts that the outside counsel can
achieve the desired results and can bring any inappropriate behavior to the attention of other
governing legal entities.
Professional Accountability Consequences for Lawyers
The responsibility of professional accountability requires both parties to be willing to
express their purposes and goals (Burke, 2004), state their actions to achieve their purposes and
goals, and then accept the consequence of their actions (Goldberg & Morrison, 2003). If the
client is not an attorney, they have the responsibility of consulting an outside lawyer for certain
decisions when they reach the boundary of what they as a non-lawyer have the ability to decide
(Burke, 2004). Stecher and Kirby (2004) explain that lawyers have a risk of being disbarred from
the profession if they do not protect the public and produce the results that are expected. They
note that there is an assumption that outside counsel is performing up to in-house counsel’s
substantive and ethical expectations if outside counsel does not file a complaint indicating
discontent.
Benefits to the Organization
Providing Organizational Value
A problem with the billable hour is the difficulty with knowing whether the lawyer
provides valuable work to warrant the fee that the client will be asked to pay for that work, as
DETERMINING INDUSTRY VALUES 26

argued by Carter and Corbin (2009). The Association of Corporate Counsel states that the job of
in-house counsel is to select a law firm who can provide the best result for the particular matter
that needs to be addressed (Paulmann & Hackett, 2009). By looking at how in-house counsel
evaluates outside counsel’s performance on a specific matter, the basis upon which value or a
lack of value is perceived can be made apparent.
Client Satisfaction
Medler-Liraz and Yagil (2013) define customer satisfaction as an emotional response to
activities that result in a sense of “fulfillment” (p. 265). They explain that it is beneficial for
those working in customer service environments to have authentic positive verbal
communication because it causes their customers to align their perceptions accordingly. Medler-
Liraz and Yagil (2013) conducted a quantitative study with 131 pairs of service employees and
customers in Israel to explore the relationship between customer satisfaction and emotional
regulation, which is important because it can provide guidance on how to strengthen a
relationship. Their results showed a positive relation between genuine emotion and customer
satisfaction. Furthermore, emotions of the customer can be regulated by the emotions conveyed
by the service provider, which is useful in challenging situations where customer satisfaction
may be compromised. In addition to the emotional component of service, and referencing the
research of Haywood-Farmer (1988), a good customer service provider can offer a balance of
having a physical setting, positive behaviors, and professional judgment (Douglas, Muir &
Meehan, 2003). They explain that the effective balance of these three areas designed to meet the
needs of the clients is what will give in-house counsel the feeling of satisfaction with the
provided services. These examples show that it is helpful to deliberately identify the specific
DETERMINING INDUSTRY VALUES 27

values of the targeted in-house counsels within a targeted industry so that their satisfaction with
services can be attained.
Determining Whether Performance Resulted in Valued Services
When deciding whether outside counsel’s work favorably reflected the desired values and
outcomes, Hodge and Reyes (2011) suggest that in-house counsel use a balanced scorecard
approach where areas being scored align with business strategies. Specific criteria should be
clearly defined, and can include things like experience, expertise, reputation, responsiveness,
confidence level, and/or trust (Paulmann & Hackett, 2009). Another potential desired value is
the reduction of regulatory costs, which can be either regulation of clients or regulation related to
a transaction (Schwartz, 2007). Certain aspects, such as trust, are based on a relationship and
should be included in the analysis rather than just relying on a cost-benefit analysis (Vischer,
2011). Garry and Harwood (2009) describe an approach called “panelling” where a select
number of law firms are given the chance to obtain more business in exchange for a reduction in
costs or increased productivity. Upon completion of a transaction, law firms will be eliminated
from the panel of potential firms if they provide either poor value for the amount spent on the
transaction or poor quality. These various approaches can indicate the effective approaches and
scope to which in-house counsel evaluates the valued services for a transaction.
Determining the Possibility of Repeat Business
Customer loyalty is defined by Medler-Liraz and Yagil (2013) as a deeply held intention
of customers to repeatedly choose to use a particular client or product in the future. Social
relationships that result in multiple business exchanges increase the likelihood of additional
business because the preferences and established protocols between parties are better known and
costs associated with work is reduced (Bagley, 2010). However, Schwartz (2007) warns that if
DETERMINING INDUSTRY VALUES 28

outside counsel is already engaged in a certain matter for in-house counsel, it does not
necessarily mean that they will have the same knowledge and skills needed for a related and
seemingly similar activity. Schwartz (2007) explains that if an outside law firm is hired for
convenience because of an existing relationship, they may increase costs and reduce the extent of
value if they are not equipped to handle the new work being offered. When social relationships
are positive and genuine, there is an increased possibility that future loyalty will exist. Research
by Medler-Liraz and Yagil (2013) also supports this connection.
Conceptual Framework
When the decision is made to hire outside counsel, various values and experiences of in-
house counsel and their organization influence their relationship and how they ultimately
evaluate legal services for a particular matter. Empirical and non-empirical sources provide a
means by which to explore: (1) the concept of value, (2) possible values of in-house counsel to
indicate performance expectations of outside counsel, (3) the existence of a relationship between
in-house counsel and outside counsel, and (4) the scope of evaluation approaches to determine
what benefits outside counsel can provide to their organization.
This study draws on relevant literature to examine perspectives of in-house counsel
within national restaurant chain companies who have worked with outside counsel on a litigation
matter for at least six months. Through both an online survey instrument and interviews, specific
valued behaviors will provide real-world perspectives to support what in-house counsel value
when working with outside counsel on a specific matter, how their quality of relationships
influence the likelihood of future business with the same outside counsel, and how in-house
counsel determine the effectiveness of outside counsel. An alignment between literature and the
perspectives within the food services industry will be made to connect research to practice.

DETERMINING INDUSTRY VALUES 29

CHAPTER 3

Research Design and Methodology

In-house counsel will often choose legal representation based on their organizational
norms and business strategies (Bagley, 2010), and the need for expertise beyond organizational
resources (Burke, 2004). Their expectation may be based on a long-term relationship with an
outside lawyer or firm that spans many types of transactions, or it may be an expectation for a
successful outcome for one specific transaction (Garry & Harwood, 2009). The selected legal
person or firm is expected to provide value in a way that enables the in-house counsel to look
good to those within their organization who hold them accountable, and achieve a successful
outcome in the most efficient and cost-effective manner (Hentschke & Wohlsetter, 2004). To do
this, the outside legal person or firm will need to have internal expertise and organizational
systems that can provide in-house counsel with a successful result (Stecher & Kirby, 2004). It is
likely that the hiring organization will have a way of measuring whether or not the outcome was
successful (Hodge & Reyes, 2011). Through the achievement of good results and being in good
standing professionally, trust in outside counsel will be strengthened (Garry & Harwood, 2009),
and the opportunity for future business may increase.
Problem and Purposes Overview
To facilitate a positive and ongoing relationship between outside counsel and their
clients, outside counsel can take actions that show that they are acting on behalf of their clients’
interests (Carter & Corbin, 2009) and can be trusted to make decisions on their behalf (Winter,
2011). Too often, though, clients feel that outside counsel’s fees do not justify the work being
done by outside counsel (Hodge & Reyes, 2011). A solution to this dilemma is being explored
DETERMINING INDUSTRY VALUES 30

through alternative billing arrangements based on performance and final results for a specific
transaction (Paulmann & Hackett, 2009).
The purpose of the study is to examine the client’s perspective on law firm performance
for a litigation matter. By having an insight into what is considered valuable for clients within a
particular targeted industry, law firms can have a better indicator of how they can align their
employee and organizational resources to be tailored to the work needed by clients in a way that
is advantageous over their similarly sized competitors. Insights from in-house counsel who
participate in this survey can be synthesized to reveal what they value about outside counsels
representation of their company. With this knowledge, law firms can better determine whether
their stated competencies and knowledge management systems contribute to positive outcomes
for clients. This should increase their ability to pursue opportunities for future business with
their targeted clients.
Research Questions
1. What do in-house counsel of U.S. based national restaurant chains value when
working with outside counsel on litigation matters?
2. How do the quality of relationships between in-house and outside counsel of U.S.
based national restaurant chains influence the likelihood of future business?
3. How do in-house counsel of U.S. based national restaurant chains determine the
effectiveness of outside counsel?
Population and Sample
The population that participated in this study comes from the 150 national corporate
members of the National Restaurant Association as of January 2012. They disclose their
membership quarterly on the website http://www.restaurant.org/About-Us/What-We-Do/Federal-
DETERMINING INDUSTRY VALUES 31

Lobbying-Disclosure-Act to comply with the Federal Lobbying Disclosure Act. A standard set
of categories for restaurants is found on the U.S. Census Bureau website and referred to as the
North American Industry Classification System (NAICS). This classification system is
appropriate for categorizing and organizing survey responses because it is representative of the
U.S. focus of the restaurant population from the National Restaurant Association. According to
the U.S. Census Bureau, restaurants classifications are: (1) full-service restaurants, (2) limited
service restaurants, (3) cafeterias, grills, and buffets; and (4) snack and non-alcoholic beverage
bars. A full definition and examples are provided by the U.S. Census Bureau for each
classification at http://www.census.gov/eos/www/naics/.
Some National Restaurant Association corporate members contain several brands that
operate under one corporate entity. In-house counsel for each corporate entity was identified by
researching each entity using either the one-day trial version of the online Wolters Kluwer
program called Corporate Counsel Profiler, the online version of Martindale Hubble’s “Find
Lawyers & Law Firms,” or the 2011-2012 Directory of Corporate Counsel. Some counsel names
were found in more than one resource, which helped to verify their contact information.
Out of the 150 members who were researched, contact information could be found for 50
members. Contact information included names, mailing addresses, and phone numbers for all 50
members, and email addresses for 25 members. Each of the 50 members was contacted to
participate in this study, and the 12 members who actually participated are the sample of the
population for this study.

DETERMINING INDUSTRY VALUES 32

Data Collection and Instrumentation
Solicitation to Participate in the Study
The approved survey instrument developed for this study was entered into the Qualtrics
program so that responses could be received online. Initial requests to participate were made
through regular mail and phone calls. Since physical addresses were available for each of the 50
members, a letter requesting their participation through the online survey address was sent by
regular mail. In addition to the letter, they were sent a copy of the survey, and an information
sheet explaining the purpose and approach to the research being done. Contact information for
the institutional review board and the primary researcher was also included. Ultimately, the
person who manages and evaluates outside counsel through the duration of a litigation matter
was the targeted person to complete the survey. If the respondent represented more than one
restaurant brand, he or she would be asked to provide one response for a brand of their choice. In
exchange for time and information, a $50 Charity Choice gift card was offered. This allowed the
recipient to allocate $50 to up to three charities, but the tax benefit went to the researcher who
paid for the gift cards. They were also offered the results of all collected research in an
aggregated format. If the recipient was not the appropriate person to participate, he or she was
kindly asked to forward it to the appropriate person.
Upon only receiving one response after a two week period, a follow-up call was made to
each of the remaining 49 non-respondents to follow-up on their receipt of the letter that was sent,
briefly explain the research, offer the Charity Choice gift card in exchange for participation, and
to request participation in the online survey link. Non-respondents were able to be reached
directly, either personally or by voicemail, through the company directory or direct transfer from
a receptionist. The message was conveyed through secretaries in a few instances. After only a
DETERMINING INDUSTRY VALUES 33

few more responses were received, another phone call was made to each of the remaining non-
respondents to provide a choice between completing the survey online or over the phone.
Benefits of participation were explained, and the expected time of approximately 15 minutes to
complete the survey was stated. A few more responses were received, but more responses were
still needed. A fourth call was made to each of the remaining non-respondents stating that an
interesting trend was developing from the received responses and their participation would help
to clarify and strengthen the trend. Confidentiality and flexibility were emphasized. All
voicemails were brief and delivered with a deferential tone. No further calls were made when
the necessary responses needed to proceed with analysis were received. The survey link
remained open for a three month period before being closed.
Collected Responses
Of the 50 members who were asked to participate in this study, 12 responses were
received. Eight members personally declined to participate due to being too busy or not
interested. 20 members did not respond to any of the four requests to participate, and 10 were no
longer with the company or could not be reached directly. The 12 responses were from in-house
counsel across the United States, specifically one from the Central region, two each from the
Western and Mountain region, and seven from the Eastern region. The representation of
restaurant classification was also spread across the different categories. Six were from full-
service restaurants, three were from limited service restaurants, two were from cafeteria/buffet
restaurants, and one was from a snack and non-alcoholic beverage bar. Four responses were
received through the online survey link, and eight responses were received through a phone
interview. Upon receiving a completed survey response, the respondent was sent a thank-you
DETERMINING INDUSTRY VALUES 34

letter, a copy of his or her documented response, the Charity Choice gift card, and the contact
information of the researcher. None of the respondents adjusted their responses.
Comparing the members, population, and sample as they are categorized within the four
NACIS groups can help to show the alignment within each category as the numbers decrease
from the original association members to the actual respondents. It should be noted that some
association members with multiple brands can be included with more than one NAICS category.
These association members were separated out into a multiple NAICS category classification,
and alignment was made between the association members, population, and responses. An
assumption was made with the classification in instances where only the entity website was
referenced, and responses clarified the NAICS category in which a particular entity was placed.
Table 1
Allocation of NAICS Categories
ASSN. MEMBERS (150) POPULATION (50) SAMPLE (12)
NAICS # % NAICS # % NAICS # %
Multiple 13 0.09 Multiple 4 0.08 Multiple 3 0.25
722511 62 0.41 722511 21 0.42 722511 4 0.33
722513 54 0.36 722513 13 0.26 722513 3 0.25
722514 16 0.11 722514 11 0.22 722514 2 0.17
722515 5 0.03 722515 1 0.02 722515 0 -
TOTAL 150 1.00 TOTAL 50 1.00 TOTAL 12 1.00

Table 1 has the basic structure of showing how many association members are within
each NAICS category and how the percentage of those members are represented among each
group of association members (150), the population (50), and the sample (12). Totals were
calculated so that the number of association members within a NAICS category and the
percentage could be in balance. The content of the table reflects that there is relatively close
alignment in terms of percentages of the members accounted for within a group of association
DETERMINING INDUSTRY VALUES 35

members. By looking at a NAICS category within association members and reading across the
line to compare the number and percentage for the population and sample, the representation is
fairly similar. A key component that causes a shift in percentages is where association members
are considered part of the “Multiple” category. Representation is fairly consistent where the
NAICS category is clear.
The Survey Instrument
Questions for the survey instrument were structured to reflect the ideas that arose through
literature. From the client perspective, value was addressed in a variety of ways, but did not
connect to specific working situations. The survey questions connected valued behaviors and
practices to the recollections by in-house counsel of work done on a litigation matter. The three
main literature review sections of performance expectations, the relationship between in-house
and outside counsel and the benefits to the organization can be connected to survey responses
through the answers pertaining to behaviors that support the ratings for satisfaction and the use
of outside counsel for a similar litigation matter in the future.
The survey consists of 15 questions that are used to answer to the research questions
presented in this study. For surveys completed through phone interviews, a cognitive
interviewing approach allowed for additional information to be obtained from the respondent
after the original question was answered (Beatty & Willis, 2007). Beatty and Willis (2007)
define cognitive interviewing as a way of obtaining responses for a survey where the interviewer
asks the respondent to expand upon their initial answers. Two techniques to obtain additional
information are referred to as a “think-aloud paradigm” and “probing” (p. 292), and are meant to
reflect the thoughts and problems of the respondents rather than the general view of a particular
DETERMINING INDUSTRY VALUES 36

population (Beatty & Willis, 2007). Further follow-up questions were not given to respondents
who completed the survey questions online.
The approach to this study is qualitative in nature, and specifically incorporates the
inductive approach of organizing responses into categories established after data is collected so
that in-house counsel’s experiences with outside counsel can be better understood (Capaldi &
Proctor, 2005). Ongena and Dijkstra (2006) provide various coding schemes that serve as a
useful reference for analyzing data. Research question one involved “coding at the utterance
level” (p. 422), so that separate thoughts could be organized into meaningful categories (Ongena
& Dijkstra, 2006). Research question two involved what is described as full coding where
utterances are reviewed to infer behavior, and the absence of behavior may also be considered
(Ongena & Dijkstra, 2006). In the analysis of research questions two, frequency analysis
considered the number of ratings that indicated satisfaction with a matter and the likelihood of
using the same outside counsel for the same matter. Frequency analysis is described by Ongena
& Dijkstra (2006) as a process where the number of occurrences between the interviewer and
respondent is counted. The same approach was taken for research question three with respect to
yes/no answers about evaluating a matter against certain standards.
Once the participants were qualified for the survey to ensure that they evaluated outside
counsel for the duration of their work, they were asked to reflect upon a litigation matter that
lasts at least 6 months based on the recommendation by Hodge and Reyes (2011). The questions
address the satisfaction with the result of the litigation matter and associated factors connected
with satisfaction, the evaluation approach for the matter, and whether the respondent would
consider using the same legal representation for a similar litigation matter in the future. In
connection with using the same legal representation in the future, respondents were asked about
DETERMINING INDUSTRY VALUES 37

behaviors relating to verbal or nonverbal behaviors, as well as the documentation for the matter.
Behaviors and documentation were requested for activities from the inception of the matter
through the initial trial date, then from the initial trial date through final resolution. Responses
relating to behaviors and documentation were ranked by the respondent in order of importance.
The survey is primarily qualitative with open-ended questions, and also has two questions that
have an agreement scale. Survey questions are attached as Attachment A, and their foundations
in research are described as follows:
1. What do in-house counsel of U.S. based national restaurant chains value when
working with outside counsel on litigation matters?
Research has sought to identify the relevant and necessary knowledge, skills and
behaviors exhibited by lawyers who are hired by companies to resolve a litigation
dispute. The most comprehensive approach originated with the MacCrate report
in 1993 (Munneke, 2003), and has continued with many additional articles.
Examples are: Bernhard (2010); Bird (2008); Carter and Corbin (2009); Chatain
(2010); Hodge and Reyes (2011); Polden (2012); Tallieu (2012) and Vischer
(2011). Responses to questions 2, 3, and 6-16 from in-house counsel who
participate in this study will help to discover what is found in research and further
contribute to the answer of this question.
2. How do the quality of relationships between in-house and outside counsel of U.S.
based national restaurant chains influence the likelihood of future business?
Interactions between in-house counsel and outside counsel can impact the
potential for outside counsel to be offered future opportunities to work with in-
house counsel. Research by Bagley (2010); Bird (2008); Garry and Harwood
DETERMINING INDUSTRY VALUES 38

(2009); Polden (2012); Schwartz (2007) Vischer (2011) address key aspects that
can impact a long-term relationship. Examples are trust and credibility.
Information from 2, 3, and 6-16 will help to discover what is found in research
and further contribute to the answer of this question.
3. How do in-house counsel of U.S. based national restaurant chains determine the
effectiveness of outside counsel?
Specific approaches for evaluating outside counsel were found within the Garry
and Harwood (2009), Hodge and Reyes (2011), Schwartz (2007) and the
Paulmann and Hackett (2009) articles. Questions 4-5 address the approaches and
techniques, if any, that are used by in-house counsel to determine the value of
work done by outside counsel in measureable terms. Value of work can be
thought of as benefits to the organization based on the results of work done on the
litigation matter by outside counsel.
Data Analysis Procedures
The results of the collected data should provide law firms with an insight into what is
valued by those who hire outside counsel to resolve a litigation matter. A qualitative approach
was used to analyze results in a way that answers the research questions. Analysis for the first
two research questions was holistic in nature, and was narrower for the third research question.
All respondents were given a code name that represented their NAICS category and a number to
represent the order in which they were interviewed within their NAICS category. For instance,
the first Full Service restaurant respondent was given the code name FS1. The substance of their
response was attributed to their code name rather than the respondents’ actual name or the name
of their company from that point forward.
DETERMINING INDUSTRY VALUES 39

Documenting the Responses
Original answers from the online survey or the notes taken during a phone interview were
placed together according to the NAICS categories and the order of being received. A complete
record of the responses received through a phone interview was typed into a word document.
Each response had a separate word document that showed their answers directly underneath each
survey question. Answers were recorded as objectively as possibly by the researcher.
Answers from each respondent were also placed on a matrix. Each respondent’s code
name was placed along the top columns of the matrix and an abbreviated reference to each
survey question was entered down the left column. Each question was placed in a separate row.
The answers to each survey are entered going down the column to correspond with the questions
shown on the left side of the matrix. This matrix shows the results for each respondent as they
are grouped within the NAICS classification, and allowed for the evaluation of responses as a
whole as they pertain to the survey questions as well as an individual answer.
Of the 12 received responses, a total of four general themes and 19 sub-categories were
found that represented different general values of in-house counsel. A total of 182 unique
comments were listed. The litigation matters being discussed included disputes pertaining to
personal injury (1), insurance (2), real estate (1), employment (3), contracts (3), lease (1), and
franchise (1) areas of law. Six of the matters being considered lasted between six and 12
months, four of the matters lasted between one and two years, and two of the matters lasted more
than two years.
Analysis Method for Research Question #1
The approach for analyzing the answers to the research question “What do in-house
counsel of U.S. based national restaurant chains value when working with outside counsel on
DETERMINING INDUSTRY VALUES 40

litigation matters?” was to review each individual response from questions three, five, and seven
through 16 from the matrix for unique statements. Each unique statement was placed in a
separate word document to allow for the integration of new unique statements from additional
responses. The respondent code was placed after their statement so that specific points could be
attributed to them later. Similar statements were grouped together so that common themes could
emerge. As additional responses were reviewed, unique statements from those responses were
integrated into the overall list of statements. Statements were further organized and general
themes were adjusted as necessary.
After all unique statements were identified and listed according to general themes; they
were grouped according to sub-categories within a theme. Statements within each of these
categories were assigned a unique color in Word, and the same color was applied to the exact
same statement in the matrix. This allowed a representation of themes to be seen within the
individual responses as well as with answers across questions. It also helped to ensure that all
points were represented. Calculations were also made as to the percentage of respondents who
commented about a certain general theme as well as a sub-category within the theme.
Additionally, these calculations were also placed in a chart that helped to illustrate the frequency
of comments within a category by each respondent and determined what was being discussed the
most. A four-quadrant graphical representation of the general themes and sub-categories was
also created to help clarify the relationship between general themes and their sub-categories.
Individual statements within a subcategory were then defined further according to almost
identical statement in order to help to provide additional structure when writing the results.

DETERMINING INDUSTRY VALUES 41

Analysis Method for Research Question #2
The approach for analyzing the answers to the research question “How do the quality of
relationships between in-house and outside counsel of U.S. based national restaurant chains
influence the likelihood of future business?” was holistic. Each response was reviewed and
summarized in terms of the relationship between in-house counsel and outside counsel. The
summaries were then grouped according to the combined ratings of satisfaction and likelihood
that in-house counsel would use the same representation for a similar matter in the future. Key
knowledge, skills, and behaviors were identified in association with the combined ratings in
order to determine which were present in a good relationship as opposed to being or not being
present in a less than good relationship. Items were checked off in the summary as they were
addressed so that completeness could be verified.
Analysis Method for Research Question #3
An overall sense of whether or not analysis was done for litigation matters was by
looking at answers to question four. The approach for answering the research question “How do
in-house counsel of U.S. based national restaurant chains determine the effectiveness of outside
counsel?” was to look at the analysis results from the two previous research questions. Question
five also provided some insight into utilized approaches. Various benefits to the organization
were seen through individual statement as well as the relationship between in-house and outside
counsel. A comparison to previous research was also made within this section of the results.
Advantages of Analysis Methods
The results from the survey can provide a general sense of who the law firm is dealing
with as it relates to the decision maker and the organization, and what factors result from that
perspective to conduct a business relationship and evaluate transactional outcomes. In addition
DETERMINING INDUSTRY VALUES 42

to general results from the survey, different components of the survey not emphasized in this
study can be evaluated to determine relationships. The strategic approach of the organization
can be reviewed to indicate their relationship to the aspects of selection criteria, relationship
factors, and measurement components. The different types of restaurant classifications could be
compared to determine if separate approaches are taken by each group. These methods could
indicate to a law firm what specific aspects they would need to have in their skill set and provide
to their clients within a particular industry.
Limitations
Since there is only one transaction being considered by one organization, the scope of
transactions and how they are handled between the law firm and client may not be fully
represented. In-house counsel is very busy, and the number of responses may be limited.
Additionally, there may be different people involved in the various stages of the transaction from
start to finish, and a single respondent may not be able to fully answer the survey questions. The
scope of choices may not cover the scope of possibilities, and other factors may contribute to the
perceived value of actions seen for a transaction.
Certain questions were developed based on the anticipation of a higher level of responses.
Because of the response rate, those methods were not able to be incorporated into the results.
The number of 12 respondents did not allow any correlations to be made between being satisfied
with the results and the likelihood of future use of the same legal representation. At least 25
responses would need to be received for a valid and reliable correlation and coefficient of
determination to be calculated. Additionally, a comparison between NAICS classification
groups was also not able to be conducted in light of the response rate.
DETERMINING INDUSTRY VALUES 43

A few of the questions meant to distinguish a priority with behaviors and the way
documentation was handled. Questions nine, 11, 13 and 15, which addressed ranking of
behaviors and documentation handling, often were not answered due to the respondents feeling
that either everything mentioned was equally relevant or that they did not want to rank the
mentioned items. Even those who did rank their responses, these rankings did not show a
consistent finding. All items within the ranking fields were incorporated within the results for
that answered the first two research questions. Distinguishing knowledge, skills and behaviors
within the different stages of litigation, namely the beginning of the matter through the start of
either trial or arbitration, then from trial or arbitration through final resolution was also not able
to be analyzed. Only one respondent provided information about arbitration, so those aspects
were also incorporated into the answers for the first two research questions.
Conceptual Framework
Perspectives of in-house counsel for an organization can help to determine what they
expect and how their future choices will be made. By identifying a defined population within an
industry, such as food services, and asking participants to comment about a single matter where
they had direct involvement, more details about specific values can be sought. The survey
instrument for this study provides a way to obtain those industry-specific attitudes and
preferences. Information from this study can provide outside counsel with insights into how they
can contribute to the business strategies of their clients in a cost-effective manner.
The results that follow provide a snapshot of how a few in-house counsel of U.S. based
restaurant chains views the behaviors and activities of their legal representatives. These insights
will strengthen what is known about their perceptions relating to: (1) the concept of value, (2)
performance expectations of outside counsel, (3) the relationship between in-house counsel and
DETERMINING INDUSTRY VALUES 44

outside counsel, and (4) the scope of evaluation approaches to determine what benefits outside
counsel can provide to their organization. This information and understanding can help outside
counsel tailor their services to align with in-house counsel’s expectations.

DETERMINING INDUSTRY VALUES 45

CHAPTER 4

Findings

The important characteristics of relationships between parties in a business transaction
may seem very subjective due to the varying nature of personalities, roles within the parties’
organizations, and the type of work being done. An examination of the survey data revealed the
specific behaviors that are valued by in-house counsel in relation to litigation matters. Behaviors
are also examined to determine how they guide the relationship between in-house and outside
counsel in either a positive or negative direction. Certain behaviors are present in quality
relationships where outcomes do not negatively impact the relationship, and the likelihood for
future business is strong.
First I present the findings in relation to each of the research questions. For the first
research question “What do in-house counsel of U.S. based national restaurant chains value
when working with outside counsel on litigation matters?” four elements emerged from the data.
These elements are professional skills, the benefits to in-house counsel’s organization,
knowledge, and relationships. Next, I present findings for research question two, “How do the
quality of relationships between in-house and outside counsel of U.S. based national restaurant
chains influence the likelihood of future business?” Here, the findings focus on the essential
components of positive and negative relationships between in-house and outside counsel that
contributed to shaping the length of relationships and the likelihood of a continued attorney-
client relationship. Lastly, findings relating to research question three “How do in-house counsel
of U.S. based national restaurant chains determine the effectiveness of outside counsel?” which
explores in-house counsels’ approach to analyzing litigation results, will be presented.

DETERMINING INDUSTRY VALUES 46

Research Question One: What do in-house counsel of U.S. based national restaurant chains
value when working with outside counsel on litigation matters?
Specific comments from in-house counsel were organized into groups with similar
comments to create themes. Four broad themes reflecting values were created, and then two
additional groupings were created within those broad themes to create three levels of detail.
Each level of detail is ranked so that it can be presented from the highest to lowest number of
respondents who spoke about a particular theme. The four broad themes are professional skills,
benefits to the organization, knowledge, and relationships. Professional skills and benefits to the
organization had comments from all 12 respondents showing that these are primary values of in-
house counsel. Knowledge and relationships were spoken about by 11 out of 12 of the
respondents, and are therefore considered secondary values as compared with professional skills
and benefits to the organization. Since one respondent provided a rather sparse online response,
it is possible that all 12 respondents would have commented on each of the four value categories.

Professional
Skills, 26%
Benefits to the
Organization,
26%
Knowledge,
24%
Relationships,
24%
Figure 1. General Categories of Value
Figure 1. These four elements represent broad categories of comments made by in-house counsel
about what they value when working with outside counsel on a specific litigation matter.
Percentages were calculated by dividing the number of respondents for a certain value by the
number of total respondents (46).

DETERMINING INDUSTRY VALUES 47

The connection that literature makes to values does not distinguish the importance of certain
skills over another, but rather seeks to identify what is of value to clients. Findings from this
study seek to identify which values are not only important to in-house counsel, but also
emphasized by in-house counsel. All four areas of value addressed in the literature review were
also present in the findings. Even though the broad categories are found within both literature
and findings, there are different specific aspects of value that may appear. Comparisons will be
made to show the similarities and differences between literature and the findings from this study
within each area.
Knowledge and skills are discussed together in the literature, but are separated in the
findings so that a greater scope of detail can be discussed. The literature addresses these
categories by discussing ideal competencies and common standards. In an effort to establish
performance standards, many articles, both empirical and non-empirical, have the purpose of
identifying the essential responsibilities of being a lawyer. The findings provide a wider scope
of details about what areas of knowledge and what specific skills are valued. Benefits to the
organization have the similar values of costs and social relationships between literature and the
findings, but differences exist between behaviors and emotions connected to being satisfied with
work performance. Lastly, relationships share common areas of communication, interactions
and accountability. Differences are seen with respect to business strategy. The literature
discusses the business strategy perspective of in-house counsel as opposed to how outside
counsel can meet their clients’ business strategy. Some aspects of value, such as business
strategy, are present among several of the broad categories.

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Professional Skills
All 12 respondents commented on the value of professional skills. Specifically, the
rankings of professional skills fell into four categories and in the order of: (1) the management of
resources and materials, (2) writing, (3) strategy development, and (4) analysis. Values within
the professional skills category show a connection on other broad areas of value, such as
knowledge and benefits to the organization in terms of efficiency and costs. Each of these
categories will be addressed separately from the highest to lowest proportional percentage.

Mgt. of Resources
& Materials,
35%
Writing,
26%
Strategy
Development,
26%
Analysis,
13%
Figure 2. Valued Behaviors Relating to Professional Skills
Figure 2. These four elements represent what is valued as it relates to professional skills.
Underlying details to support these categories of valued professional skills are explained
below from the highest to lowest proportional percentage. Percentages were calculated
by dividing the number of respondents for a certain professional skill value by the
number of total respondents who commented about professional skills (23).
DETERMINING INDUSTRY VALUES 49

Management of resources and materials. The skill that was most frequently mentioned
as valuable was that of managing resources. Eight of the 12 respondents indicated that they
believed this skill was important for outside counsel. Respondents valued the proper
maintenance, manageability, and accessibility from both in and out of the office. Most
comments with this category reflected an appreciation for the proper management and handling
of case materials. Respondent FS5 stated that preparation was a key element, and others
conveyed satisfaction with the organization and amount of documentation for their litigation
matter. Literature contributes to this aspect of value as well by both empirical and non-empirical
accounts. Through his study, Schwartz (2008) connects the reduction of costs to efficient case
management practices, which may be imposed by a close involvement by in-house counsel.
Munneke’s (2003) conference report states that case management and document management
skills are important for good technology related purchasing decisions, and references the original
1992 MacCrate Report skill of “Organization and Management of Legal Work” (pp. 617-618) as
a fundamental legal skill.
Another full service restaurant respondent explained that the lead outside counsel should
effectively communicate to more junior attorneys on a case, and used the analogy of seeing the
forest and the trees. They felt that the more junior attorneys keep their eye on the prize, which is
the represented by the trees, but did not know enough about the broader factors and company
strategy, which is represented by the forest. Polden (2012) supported this view by saying the
person in a leadership role needs to have integrity, and be knowledgeable about the relevant area
before others will follow their direction. Communicating the bigger picture can impact the
DETERMINING INDUSTRY VALUES 50

decisions made that lead to effectively handling materials and resources. These aspects also
support the value of being both efficient and productive.
Contrasting comments from four respondents regarding resource and material
management came up in relation to outside counsel’s productivity. For example, two respondents
noted that the outside counsel they had worked with on the matter being discussed in the survey
needed to improve in this area, and one respondent noted that outside counsel was efficient
during the discovery process. Another respondent offered that outside counsel should consider
how resources are being used given the overall dollar value of the claims. Tallieu (2012) also
suggested that a cost-benefit analysis be done to determine the overall case value. Thus, in-house
counsels’ responses demonstrate that there is a relationship between outside counsels’
management of resource and material and the way in which they are seen as efficient and by
extension, valuable.
Comments made within this section of professional skills ultimately play into in-house
counsel preferences, which are subjective. Three of the respondents discussed this in terms of
providing updates and the timing of when updates were provided, and one liked that outside
counsel emailed documents as a pdf file, then sent paper copies. Another liked that copies were
only provided when necessary, and yet another stated that materials were forwarded in a timely
manner. It is interesting that each of the three respondents had a different preference on how
they liked to receive materials, thus showing the highly subjective, but valued nature of this area.
Writing skills. Half of the respondents spoke about good writing quality, but in various
ways. Respondents from two different types of restaurants stated that quality work is needed to
have a successful outcome and be the basis for either valuable advice or decisions. High quality
writing was defined by respondent SBB1 as “concise, easily read, flows smoothly, clear, not
DETERMINING INDUSTRY VALUES 51

overly technical, and reflects common sense.” Since emails and memos are so frequent, one
respondent from a full service restaurant felt that they were the most important type of
communication exchanged between in-house and outside counsel. Regarding the quality of
appearance, three respondents felt that documents should look professional, not have typos, and
should focus on information that can lead to decisions. The skill of writing is also referenced by
the non-empirical work of Bernhard (2010) and Munneke (2003) who comment that despite the
MacCrate Commission’s work from 1992 that identifies essential legal skills to be taught in law
school, newly graduated lawyers often lack the skills needed to write simple legal documents.
Writing is both a reflection of both in-house counsels’ company and outside counsel’s
knowledge and skills; therefore, it provides valuable insights into the professional writing skills
of outside counsel.
Strategy development. Half of the in-house counsel respondents appreciated their
outside counsel’s ability to consider strategies for the litigation matter. This skill involves the
positive aspect of knowing how to win, according to four respondents. Knowing how to win was
apparent by outside counsel’s demonstration of high-level strategy and their explanations of
nuances needed for success. Bagley (2010) supports the respondents’ comments by stating that
the more astute legal in-house counsel will involve their outside counsel in the development of
their overall corporate strategy rather than requesting advice when a legal matter arises. Strategy
development also involved ways to develop and articulate various approaches and nuances for
what was appropriate for the matter. Two full service restaurant respondents specifically noticed
their outside counsel’s ability to make adjustments as the case develops and do creative things to
handle any twists and turns. These skills showed that outside counsel had the skills needed to
DETERMINING INDUSTRY VALUES 52

win. Much needs to be known by outside counsel in order to have such flexibility and creativity,
thus making strategy development among a solidly valued professional skill.
Analysis. The professional skill of analysis was referred to as having good research
skills, having an effective approach to arguments in pleadings, and being very good at risk
assessment. Three in-house respondents out of 12 commented about analysis skills. One full
service respondent specifically liked that analysis of depositions were provided. As a
professional skill, analysis factual investigation, and research were mentioned by Munneke
(2003) as important. Hodge and Reyes (2011) report from a review of a Deloitte and Touche
survey that risk assessment is valued by in-house counsel. These valued skills stated by legal
practitioners represent a combination of a high level of knowledge and skills that can be applied
to more visible work product and advice given to in-house counsel.
Benefits to the Organization
All of the valued behaviors mentioned by in-house counsel so far can positively
contribute to benefit their organization. Benefits go beyond a simple financial gain. They not
only include financial benefits, but can also extend to more positive relationships with others or a
stronger competitive edge. Tyner (2012) expands on this by observing that clients look at how
outside counsel’s work on a matter can not only provide current benefits, but can also provide
benefits into the future. All twelve respondents commented on one way that the litigation matter
being considered could either contribute to or reduce a benefit to their organization. This is
perhaps an area that reflects what is of the highest value to in-house counsel. Benefits to the
organization are addressed through the categories of final resolution, financial results, reputation
and company relationships, behaviors that impact costs, and billing. These findings are presented
DETERMINING INDUSTRY VALUES 53

in the stated order, which is shown in Figure 3 in order from highest to lowest in terms of
proportional representation.

Final resolution. The most widely found comment within the overall category of
providing benefits to the organization came from 10 out of 12 respondents, and pertained to
reaching the desired outcome within a timely manner. Respondents were basically split between
two main thoughts: (1) six spoke of the value of achieving the desired result; and (2) five spoke
about the length of the matter, stating that they received good results in a timely or untimely
timeframe. Hodge and Reyes (2011) convey that being timely and achieving desirable outcomes
was also among the Deloitte and Touche survey findings relating to values of in-house counsel.
Given the number of respondents who addressed this topic in a unified manner, it is clearly an
important value to in-house counsel. This emphasis can influence whether other related
behaviors are incorporated into outside counsel’s practices.
Final Resolution,
32%
Financial Results,
26%
Reputation &
Relationships, 16%
Behaviors that
Impact Costs, 13%
Billing,
13%
Figure 3. Valued Behaviors Relating to
Benefits to the Organization
Figure 3. These five elements represent what is valued as it relates to benefits to the
organization. Underlying details to support these categories of valued benefits are
explained below from the highest to lowest proportional percentage. Percentages were
calculated by dividing the number of respondents for a certain benefit value by the number
of total respondents who commented about benefits to the organization (31).
DETERMINING INDUSTRY VALUES 54

Financial results. Fewer, but still a meaningful number of respondents, spoke of the importance
of financial results as a way of determining if outside counsels’ work was valued. Eight out of
12 described financial results in different ways. Some spoke highly of their outside counsel for
managing costs and staying within their budget throughout the litigation process. Others praised
their outside counsel for finding alternative ways to collect funds, or for obtaining a desirable
amount of funds as a result of resolving the dispute. Hodge and Reyes (2011) discuss very
similar findings, which were mentioned by practitioners through the Deloitte and Touche survey
results. From an empirically based perspective, law firms with a service oriented climate have a
greater likelihood of positively impacting performance outcomes (Hong, Hui, Hu & Jiang, 2013).
Getting the desired result seems to be widely valued, but getting a desired result within budget
may be seen as a different type, and perhaps a more sophisticated skill.
Company reputation and relationships. The greatest benefit to a relationship is that
positive contributions are made to the future of in-house counsel and their company. Five out of
12 respondents spoke about specific positive or negative effects of the work done by their
outside counsel. For example, a positive effect mentioned by in-house counsel from a limited
service restaurant was that her outside counsel provided advice that helped to “justify legal
strategies and outcomes to managers and franchisees.” Hodge and Reyes (2011) show the same
finding within the Deloitte and Touche survey. Some of the in-house counsel spoke about
strategy in terms of whether the matter would be beneficial or not for their company. They
commented that strategy can be analyzed in terms of whether or not it is precedential, or whether
the company strategy can be executed, despite bad facts. An additional thought was that
company strategy should be understood, and the partner should sign off on it in order to reduce
problems further into the litigation process. One in-house counsel felt that outside counsel can
DETERMINING INDUSTRY VALUES 55

have a negative impact on the company’s position when they take on too many cases, or when
they are too quick to compromise on smaller cases. While reputation is discussed by in-house
counsel in terms of results, literature focuses more on the impressions that outside counsel’s
reputation conveys on others. In an empirical study, Schwartz (2007) finds weak support for
outside lawyers serving as “reputational intermediaries” (p. 493), which carries the outside
counsel’s reputation as their client is represented and reflects the expectation of good outcomes,
because practitioners felt that skill was more important than reputation. Although they are
slightly different, each of these aspects show that various actions taken by outside counsel
throughout the litigation process impact the relationship they have with in-house counsel. The
impact of litigation on business is highly valued by in-house counsel.
Behaviors that impact costs. Although not spoken of by as many respondents, the
comments by four out of 12 respondents addressed working behaviors that are helpful to
determine how to achieve desired results in a cost-effective manner. Two respondents
commented on work product for a litigation matter, and two commented on outside counsel’s
judgment on the handling of work. In-house counsel observed that emails and phone calls were
brief and to the point, documents were written once to produce a nearly finished product without
being looked at by multiple people. One in-house counsel also noticed that the management of
more junior associates can translate into increased billing costs, and emphasized that charges
should not occur unless billing is tied to an action. Another in-house counsel felt that some
geography-based firms may tend to bill more if they think they are being selected only because
of their geographical location. Empirical literature speaks to this point through the idea of
embeddedness. Lancaster and Uzzi (2012) found that outside counsel can gain insights into what
practices can help to reduce costs by being board members for companies within a targeted
DETERMINING INDUSTRY VALUES 56

industry. This provides them with access to what performance behaviors can positively or
negatively impact costs. In a non-empirical article about assessing value, Paulmann and Hackett
(2009) suggest that a detailed plan be provided to clients by outside counsel to demonstrate the
behaviors and strategies they will use to keep costs low on a particular matter. The judgment of
how costs are incurred reflects the value behind what is being said about the decisions that
influence billing practices by outside counsel.
Billing. After work is done, the review of bills is completed by in-house counsel.
Comments were made by four of the 12 respondents. Overall, the work of outside counsel was
reasonably priced, and one respondent appreciated having an e-billing function that made billing
more efficient. Non-empirical articles propose many alternative billing models, and e-billing is a
tool that provides relevant information by which to create an approach to alternative billing
(Plummer, 2012). When evaluating the appropriateness of costs incurred, two in-house counsel
respondents provided some advice and suggestions. One respondent said that law firms should
be cost-effective and not bill too much. When outside counsel is called on a billing entry, they
should not defend their position when they have clearly billed too much. Furthermore, he said
outside counsel should consider the value of the task or case, and contain their billing amount so
that it does not exceed this amount. The other respondent thought it would be helpful if outside
counsel had an insight into how bills are processed and paid internally – meaning that the
charges billed by outside counsel may be paid from different departments or from a general
budget within the company. Yet another respondent stated that alternative billing arrangements
are needed in lieu of the billable hour paradigm. Non-empirical articles state recommendations of
in-house counsel as including detailed descriptions (ABA Report, 2012; Bernhard, 2010). These
DETERMINING INDUSTRY VALUES 57

suggestions stress the value of effective billing practices, which can be understood through a
dialogue with in-house counsel.
Knowledge
Of the four elements that surfaced from in-house counsel data as being valued, the
majority of respondents indicated that knowledge was important. More specifically, eight of the
12 respondents indicated that knowledge was a valued attribute for outside counsel. Knowledge
was discussed in terms of company knowledge (6 of 12), legal knowledge (6 of 12), and industry
knowledge (4 of 12). This section presents findings related to the scope of knowledge that is
valued by in-house counsel. Overall, respondents indicated that they valued outside counsel who
had company knowledge, relevant industry knowledge, and legal knowledge. Each of these
areas will be addressed in turn.

DETERMINING INDUSTRY VALUES 58

Company. The six respondents who spoke about knowledge of the company addressed it
as having an understanding the company. This understanding took a variety of forms.
Knowledge of the company ranged from knowing company policies and the role of in-house
counsel to understanding the significance of particular matters to the company. One respondent
stated that it was important for outside counsel to know about both the company policies and
their role as in-house counsel. He explained that it was helpful when outside counsel did not
have to repeatedly learn the company’s business and practices. Having existing knowledge
reduced outside counsel’s “learning curve.” This same respondent also said that the fact that
outside counsel was already aware of the company’s policies was beneficial when dealing
matters related to the same subject. For example, he offered that it was helpful when outside
counsel already knew the company’s HR policies when working on an employment related issue.
Company,
37%
Law,
38%
Industry,
25%
Figure 4. Valued Behaviors Relating to Knowledge
Figure 4. The value of knowledge is represented through Law, Company, and Industry.
Underlying details to support these categories of valued benefits are explained below from
the highest to lowest proportional percentage. Percentages were calculated by dividing the
number of respondents for a certain knowledge value by the number of total respondents
who commented about knowledge (16).
DETERMINING INDUSTRY VALUES 59

This finding is consistent with Tallieu (2012) who suggests that it is beneficial for counsel to
meet with clients early in the engagement to identify any similar previous matters and discuss
what was learned from previous experiences. Polden (2012) also asserts that outside attorneys
can benefit from an awareness of client needs because it can lead to more positive professional
engagement experiences. Through a review of literature, Bagley (2010) makes the point that
knowledge can have a competitive advantage. Respondent comments and relevant literature
shows that knowledge of the facts, theories, witnesses and jurisdiction of previous cases can help
to utilize previously successful strategies and reduce costs.
Additional comments from respondents both supported and extended this perspective.
One respondent suggested that outside counsel should understand the goals of the company. She
and another respondent believed that it was important for outside counsel to be aware of the
company’s internal culture. Other respondents also stated that it is important for outside counsel
to act in accordance with company direction and proceed through the litigation process in a way
that compliments the company’s business practices and perspectives. Three additional
respondents commented that as in-house counsel recognizes the significance of the matter, such
as its uniqueness, outside counsel can develop a more targeted business strategy that will
positively impact the client.
These comments demonstrate that having knowledge of the company can help outside
counsel better understand the perspectives of their client, and that in-house counsel see this
willingness on the part of outside counsel to learn more about their business. These findings are
consistent with advice offered by Chatain (2010) and Bagley (2010). Chatain (2010) encourages
outside counsel to have direct interactions with clients in order to learn about their business and
various preferences. Similarly, Bagley (2010) indicates that direct interactions can enable outside
DETERMINING INDUSTRY VALUES 60

counsel to gain knowledge that is tacit and not readily available, and enables them to know the
idiosyncrasies of the company. A non-empirical article with direct interviews with in-house
counsel also reflects that they want outside counsel to understand their business, what they’re
trying to accomplish, and how to build a partnership (ABA Report, 2012). As the respondents’
comments and research indicates, business knowledge – whether expressly stated or inferred -
helps to build efficient practices.
Six of the respondents also spoke about the way that outside counsel’s knowledge of the
company translated into their ability to represent their company in a more professional manner.
In-house counsel felt that knowledgeable outside counsel was better positioned to convey
company values and legal position. Three respondents indicated that verbal abilities involved the
way outside counsel interacted with and showed professional courtesy with opposing counsel
and other parties. Two respondents stated that professional behavior is beneficial because it
contributes to obtaining a good outcome, specifically enabling cooperation from other parties
and keeping an open dialogue between parties. Schwartz (2007) aligns with this result with his
findings that legal work can be compromised when outside counsel is not able to resolve
problems and maintain a good relationship with others. One respondent, FS4, stated that
professional representation also included outside counsel’s ability to articulate and argue the
company’s position effectively, and posture themselves well against opposing arguments. He
went on to suggest that good arguing style of outside counsel was noticed and valued.
Regarding the way outside counsel expanded upon their internal abilities to outwardly
represent in-house counsel and their company, two respondents commented that they were well-
prepared and organized. In addition, one of these two expressed his belief that it was important
for outside counsel to make a positive impression through his physical presence. Their
DETERMINING INDUSTRY VALUES 61

statements included descriptions of physical appearance, such as looking sharp physically in that
their clothes looked perfect, and having a commanding presence with non-wavering confidence
and skill. In-house counsel’s perception of professional representation further supports the value
of having company knowledge.
Law. While it is generally assumed that outside counsel will have the legal knowledge
necessary to serve their clients, this assumption might broader in scope than anticipated. Six out
of the 12 in-house counsels specifically stated that outside counsel needed to have the legal
knowledge necessary to represent them. However, data showed that legal knowledge included
knowledge of the issues and facts specific to a matter, the nuances of the law, and knowledge of
appropriate legal theories. For example, SBB1 stated that he expected his outside counsel to be
aware of the law all the way down to the technical details that might impact the case. Another
respondent mentioned that knowledge of appropriate theories and whether they are novel or
well-established was also expected. Literature from the practitioner perspective supports this and
suggests that lawyers have both knowledge of substantive and procedural law (Munneke, 2003),
which enhances outside counsel’s ability to competently represent their clients (Margolis,
2007/2008). Legal knowledge beyond statutes and procedures increases value in the eyes of in-
house counsel.
The legal knowledge of outside counsel is apparent if it is conveyed to in-house counsel.
Several respondents explained that conveyed knowledge can include the judgment needed for
filing critical pleadings critical to the case, the legal substance and content within written
documents, and the explanations of the law. A full service restaurant respondent felt that being
right regarding content within documents is a way for outside counsel to demonstrate a solid
DETERMINING INDUSTRY VALUES 62

knowledge of the law. Despite having a presumption that counsel has a good understanding of
the law, other specific aspects are recognized and valued.
Industry. In addition to knowing the company, 33% of respondents also indicated that it
was important to them that their outside counsel have knowledgeable about the industry. For
example, one respondent, LS3, mentioned that his outside counsel was competent because they
had a specific concentration and specialization for franchise and distribution matters. Lancaster
and Uzzi (2012) offer research supporting that it is helpful when outside counsel is embedded in
the industry, (e.g. by sitting on company boards). This enables them to learn about a particular
industry’s more private practices, such as costs sensitivities and evaluation methods. Both the
comments and research show that by knowing outside counsel’s background and history, in-
house counsel was able to translate their experiences into valued industry-specific knowledge.
Relationship between Outside and In-House Counsel
Even though the area of relationships did not have comments from one respondent, the
remaining 11 respondents out of 12 thought it was clearly important. Their responses will be
reviewed within the areas of interactions, expectations, and longevity. Despite the knowledge
and skills that outside counsel may possess, relationships can determine the success or failure of
repeated opportunities for outside counsel to obtain business from the same company.
DETERMINING INDUSTRY VALUES 63

Interactions between in-house and outside counsel. The frequency of communication
can be what establishes a positive interaction experience, as is reflected by comments from seven
out of 12 in-house counsel respondents. Three respondents said that frequent communication
with their outside counsel happens regularly by both phone and email. One in-house counsel
commented that they have a full-plate and it is important for outside counsel to know when to
spoon-feed them, indicating that good judgment on providing updates is valued. Two
respondents indicated that a lack of responsiveness or follow-through can hurt the relationship.
Literature reflects the importance of client preferences for responsiveness through the point made
by Schwartz (2008) that encourages outside counsel to pay more attention to being responsive.
These comments support the importance of knowing how much in-house counsel values
knowledge of their preferences.

Interactions,
50%
Stated
Expectations,
35%
Longevity,
15%
Figure 5. Valued Behaviors Relating to Relationships
Figure 5. These three elements represent what is valued as it relates to
relationship between in-house and outside counsel. Underlying details to
support these categories of relationships are explained below from the highest to
lowest proportional percentage. Percentages were calculated by dividing the
number of respondents for a certain component of relationship by the number of
total respondents who commented about aspects of relationship values (20).
DETERMINING INDUSTRY VALUES 64

A positive engagement experience with outside counsel was defined by six out of 12 in-
house counsels as being simply fun to work with, cooperative, open to suggestions, showing
collegiality, and being able to work together as though they were part of the same team. By
having an enjoyable experience, in-house counsel expressed appreciation for aspects that they
perceived as beneficial. According to one respondent from a cafeteria/buffet restaurant, they
were able to establish trust, which enabled them to raise and openly discuss billing issues, as well
as help outside counsel to look beyond the current case. Polden (2012) contributes to these
comments by stating that a relationship “is one established and built on trust, veracity, and
credibility” (p. 903). Another respondent also commented that they gain confidence and feel that
they are in good hands as a result of a positive engagement experience. In establishing suggested
standards based on the MacCrate Report, Munneke (2003) lists both oral and written
communication, as well as interpersonal skills as important for practicing lawyers. An empirical
approach by Pinnington (2011) also supports communication as an important skill. The literature
identifies communication in a broad sense, and the findings from this study focus on the specific
ways that in-house counsel enjoys communicating and interacting with outside counsel.
Professional behavior helps outside counsel provide valuable advice, according to one in-
house counsel, although he feels it is always necessary for them to maintain a detached and
critical perspective on the case. Polden (2012) makes the same point by saying it is beneficial
for outside counsel to be credible before in-house counsel will feel confident with their
professional judgment and expertise. The personality characteristics that emerge are outside
counsels’ attitude regarding the eagerness to take on the challenge, and confidence in being able
to obtain a positive outcome. The data shows that these types of valued positive engagement
DETERMINING INDUSTRY VALUES 65

experiences, as well as a calm demeanor and outstanding customer service, support a more
positive relationship between in-house and outside counsel.
Stated expectations. To be successful at meeting in-house counsel’s expectations, they
value knowledge about preferences with respect to their preferred manner of communication.
For instance, they may have a preference for phone calls rather than emails. Six out of 12
respondents commented about preferences and style of communication. It was noted when
outside counsel had good communication, and comparisons were made between different outside
counsel on other matters. Regarding style, two respondents valued clear and concise
communication that they could act upon, and that would reduce uncertainty regarding facts
pertaining to all parties of the litigation matter. Others strongly disliked when outside counsel
argued when a decision was made and when they were too aggressive about defending their
advice. These preferences regarding the manner of communication show that in-house counsel is
aware of how communication occurs and has a higher opinion of communication that is aligned
with their preferences.
Another aspect that strengthens or weakens a relationship between in-house and outside
counsel is the way dedication to the matter is conveyed. Four out of 12 respondents made
comments about their outside counsel’s diligence and enthusiasm. These respondents valued
actions by outside counsel that showed that the matter was one of their top priorities and they
were happy to put in the time and effort needed to succeed. Conversely, respondents strongly
disliked actions that showed a lack of urgency or passion about the facts of the case. A focus on
the resolution to a problem is conveyed through dedication, and is valued by in-house counsel.
Interestingly, only three of 12 respondents expressed expectations relating to the work
product produced by outside counsel. All three said that the work produced met their
DETERMINING INDUSTRY VALUES 66

expectations. One respondent mentioned that outside counsel should know the preferences for
what in-house counsel wants to review – speaking again to the importance of knowing in-house
counsel. Being accountable for actions was also mentioned by two of the three respondents.
One felt that outside counsel did not think things through, they had a desire to look effective and
they avoided giving bad news to in-house counsel. The other felt that the geographic location
was the benefit to their selected outside counsel, and they did not meet the expectations of in-
house counsel in other areas. The value of meeting expectations depends on knowing what in-
house counsel prefers, which can be identified through good communication.
The establishment of accountability is also documented in literature. Hentschke and
Wohlsetter (2004) speak to the importance of each party in a relationship, meaning those who
achieve objectives (the providers) and those who enforce the achievement of the objectives (the
directors). It is beneficial for expectations and preferences to be exchanged in order for
accountability to be present (Burke, 2004). Each has values based on their expectations. For
instance, Hentschke and Wohlsetter (2004) explain that the directors expect the providers to have
the necessary knowledge and skills to produce desired results and the providers expect
challenging work and compensation. When work is complete, achievements are reviewed and
parties accept the consequences of their actions (Goldberg & Morrison, 2003).
Longevity. Looking at all the aspects of what is valued in the relationship between in-
house and outside counsel, the values that contribute to a longer-term relationship become more
apparent. Three out of 12 respondents specifically spoke about the longevity of their
relationships with in-house counsel. Although that is not many responses, the three respondents
all had a long-term or existing relationship with the partner on the litigation matter they
considered. One respondent further explained that their outside counsel has a longer-term view
DETERMINING INDUSTRY VALUES 67

of their relationship and invites them to meetings to discuss their relationship. They make an
effort to learn about in-house counsel’s preferences, and learn how they can support interests that
go beyond representation, such as charity work and diversity. This insight helps to support the
importance and valued benefits of having a longer-term view that is focused on company goals
rather than solely focused on legal goals.
Summary
The responses by in-house counsel were reviewed to identify their valued behaviors with
work done by outside counsel on a litigation matter that lasted a minimum of six months. By
looking at which behaviors surfaced within a particular matter, and combining similar responses
given by each respondent, many key values of in-house counsel were determined. Not only are
important characteristics that surfaced from in-house counsel’s responses helpful, but it is also
helpful to look at what was provided by the respondents by analyzing what was said in terms of
their relationship with outside counsel. The presence of these values in literature and research
demonstrate their importance to the relationship between in-house and outside counsel.
Research Question 2: How do the Quality of Relationships between In-House and Outside
Counsel of U.S. Based National Restaurant Chains influence the Likelihood of Future
Business?
Data collected from the survey show that in-house counsel formed impressions of outside
counsel as a result of their interactions around a particular legal matter. These impressions are
the product of the behaviors exhibited by outside counsel in response to in-house counsel and the
matter at hand. The findings reflect that when outside counsel engaged in behaviors that were
valued by in-house counsel, a stronger relationship existed between the two, and this relationship
had an impact on whether in-house counsel was likely to retain outside counsel for similar
DETERMINING INDUSTRY VALUES 68

matters in the future. Conversely, when outside counsel failed to engage in behaviors that were
valued by in-house counsel, a weaker relationship existed and in-house counsel was not likely to
retain outside counsel for similar matters in the future.
Two key ideas about relationships between in-house and outside counsel come through
the data – outside counsels’ knowledge as expressed by their verbal and non-verbal work
product, and their personal interactions with in-house counsel and others. Even though outside
and in-house counsels’ work is grounded in their professional relationship, the data demonstrated
that their interactions fell within a personal to professional continuum. The picture that emerged
from the data was that where there was a more positive personal or professional relationship
between in-house and outside counsel, there was also less of an impact on whether in-house
counsel expected to continue to retain outside counsel for future work when an unfavorable
outcome took place. This section will demonstrate how the quality of the relationship between
in-house and outside counsel influenced in-house counsel’s perceptions of outside counsel’s
value. Value is captured by in-house counsels’ level of satisfaction with a litigation matter and
the likelihood that in-house counsel would use the same outside counsel in a similar litigation
matters in the future.
The ratings that represent the strongest relationships are presented first, followed by the
ratings that reflect a more limited relationship. The ratings about results of the litigation matter
are incorporated into the context of benefits to the organization. Results of litigation ultimately
reflect upon the benefits or loss to the represented company, which can also be influenced by the
stronger or weaker knowledge and skills abilities of outside counsel. This portion of the study
results will help to see the most valued behaviors in that they will be praised within successful
relationships, and criticized within more limited relationships. Figure 6 illustrates these ideas.
DETERMINING INDUSTRY VALUES 69

Figure 6. Partial List of Valued Behaviors with a Positive or Negative
Impact on the Relationship between In-house and Outside Counsel

Valued
Behaviors
Weak K&S
(Verbal /
Non-Verbal
Work
Product)
Benefits
to the
Organization
Loss
to the
Organization
Personal
Interactions
Professional
Interactions
Strong K&S
(Verbal /
Non-verbal
Work
Product

Best
Relationships

Limited
Relationships
Figure 6. This figure represents key behaviors that are represented on a continuum of
positive and negative aspects of a relationship between in-house and outside counsel.
Survey and interview results created these findings.
> Doing only
what is
expected re:
costs & time.
> Poor mgt of
associates.
> Lacked co.
knowledge
& cultural
understanding.
> Focused on
legal rather
than business
goal.
> Less urgent /
efficient than
expected.
> Lack of attn.
to matter.
> Lack of
passion re facts
of case.
> Good Risk
Assessment.
> Apply/Adj.
law to create
strategy
connected
w/org. goals.
> Teamwork.
> Calm Demeanor.
>Courteous.
> Enjoyable/fun
interactions.
>Explanations re
how issues/facts
lead to success
minimize
uncertainty.

> Lack of
communication.
> Lack of
follow-through.
> Concerned
w/personal
interests over
client interests.
> Advice was personable,
but detached.
> Adhered to preferences.
> Demonstrated being on
top of matter.
>Represents in confident &
commanding manner.
>Cooperative, open to
suggestions.
> Advice was not
thought out.
> Too few written
updates.
> Does not show
confidence in positive
outcome.
> Argues with I-H
Counsel after decision is
made.
>Technical
mastery.
>Accurate
arguments.
>Document
content leads
to decisions.
>Research.
> Good
writing
quality.
>Mgt. of case
activities.
>Looks good.
>Well-
prepared.

DETERMINING INDUSTRY VALUES 70

Characteristics of Strong Satisfaction and Future Business Ratings
Respondents who expressed they were very likely (a rating of 4) to use the same outside
counsel on a similar matter in the future also had the highest rating (a rating of 3 of 4) for the
results they felt they received in the current matter. This section focuses and explores what these
eight respondents identified as important characteristics or behaviors exhibited by outside
counsel. Respondents who had stronger personal or professional relationships with their outside
counsel consistently expressed that their outside counsel had the requisite knowledge and skills
and professional and personal behaviors that made working with them productive. I present the
behaviors related to knowledge and skills first, and then turn my attention to the personal and
professional behaviors exhibited by outside counsel.
Behaviors reflecting knowledge and skills. Respondents with a stronger personal or
professional relationship with outside counsel consistently noted that their outside counsel had
technical mastery of the law and could apply law to develop and create a creative and relevant
legal strategy, which was adjusted as litigation progresses. They also were right with the
arguments made in documents, and the content within the documents contained information that
led to a decision rather than extensive lengthy analysis. Additionally, good research skills and
the management of case activities were mentioned. Some outside counsel appreciated that their
outside counsel’s writing quality was clear, concise, easily read, and reflected common sense.
Knowledge of in-house counsel, their company and culture, and the industry in which
they operated was also very important. This knowledge enabled outside counsel to incorporate
organizational goals into strategy, even if they were working with bad facts. It also provided
what was needed for good risk-assessment. When working with opposing counsel or a key
decision-maker, outside counsel could articulate in-house counsel’s position well and effectively
DETERMINING INDUSTRY VALUES 71

refute arguments. In-house counsel felt that outside counsel knew where they stood and could
represent them in a confident and commanding manner. Industry experience also contributed to
being able to represent in-house counsel and their company’s interest’s well.
Behaviors regarding relationships. A continuum ranging from professional to personal
behaviors can exist based on what in-house counsel observes about outside counsel. Simply
looking good and being well-prepared demonstrates a more professional behavior within the
relationship. Communication exists to varying degrees, but explanations about how the issues
and facts of the case can be integrated into different approaches needed for success helped to
minimize uncertainty for one of the in-house counsel respondents. Similarly, another respondent
felt that their outside counsel’s advice was personable, yet detached in order to provide a critical
perspective. Although these behaviors reflect interactions between in-house and outside counsel,
they represent examples of the more mechanical aspects of a good relationship.
Comments within this set of respondents pertained to more personal behaviors. By a
more frequent and thorough level of communication, outside counsel was able to learn and
understand the expectations of in-house counsel. In-house counsel was also able to acquire
perceptions and impressions about the knowledge and skills of outside counsel. One respondent
stated that the best firms formally meet with in-house counsel to discuss specific preferences and
get to know the company and its culture well. One in-house counsel stated that detailed
knowledge of a company could include its policies and procedures. Specific preferences that
were mentioned were how often and in what method should updates be provided, how
documents should be received or made available, how expenses should be handled or reduced,
and how quickly a response is needed to a request. These working relationships are focused on
working together long-term rather than obtaining short-term success or completion of a matter.
DETERMINING INDUSTRY VALUES 72

The more personal aspects of the relationship also involved working as a team, and
perhaps being on calls together. Good customer service was provided. In-house counsel felt that
they worked well with outside counsel because their interactions were enjoyable. Outside
counsel was fun. Another good characteristic is that outside counsel was cooperative and open
to suggestions. They had a calm demeanor and were courteous. In-house counsel greatly
appreciated when their preferences were adhered to well and when outside counsel demonstrated
that they were on top of the matter. As a basis for addressing components of good service
practices, the empirical article of Douglas, et al (2003) also references previous work stating that
personal interactions, such as communication and attentiveness, are important for the perceptions
of high-quality service. Vischer (2011) emphasizes trust in his non-empirical analysis of
relationships within a global law firm setting. Personal aspects may vary, but the connection
between the findings of this study and the ideas of others through literature are an indication of
its importance in a relationship.
Indicators of Characteristics that Weaken Relationships
Responses with lower ratings relating to results of the litigation matter and the likelihood
of outside counsel’s future use on another similar litigation matter were more varied. One
respondent was very satisfied with results, and three others were a little less satisfied with their
results. The greatest variations relate to relationships between in-house and outside counsel.
One respondent was very satisfied with results, but did not feel that they would likely use the
same outside counsel in the future. Two respondents were only somewhat satisfied with the
results of the matter, but were less likely to use the same outside counsel in the future. Another
respondent was also somewhat satisfied with the results, but also felt that they would not likely
use the same outside counsel in the future. Rather than conveying only negative comments,
DETERMINING INDUSTRY VALUES 73

some in-house counsel described the more ideal behaviors that the outside counsel did not
exhibit. These will be described as a lack of desired behavior. Additionally, a couple of the
respondents from the group who were highly satisfied with the results of the matter and the
performance of their outside counsel spoke to their experiences with outside counsel who did not
perform well for them for previous litigation matters. These supplemental comments will be
incorporated into this section as well, and will follow the same approach of addressing
knowledge and skills, and then the behaviors of outside counsel.
Behaviors reflecting knowledge and skills. Whereas the highly satisfied respondents
spoke about observed behaviors with respect to knowledge and skills, the respondents who were
less satisfied with their relationship addressed the lack of desired behaviors. Some comments
were also made about blatantly undesirable behaviors. Simply doing what is expected was a
behavior described by one in-house counsel that spoke to the knowledge and skills of one outside
counsel. They did things on time and did not exceed the given budget for this particular matter.
Rather than speak to effective strategies, in-house counsel in this group mentioned that they’re
outside counsel was less urgent or efficient than they should have been. Results from the
Schwartz (2007) study supports this sentiment by finding that outside counsel’s work on tasks
relating to more complex legal work may be done more efficiently by other legal staff. Another
in-house counsel’s comment about poor management of associates reflected possible activities
that resulted in increased costs. A comment stating that alternative billing arrangements were
also needed.
A desire for communication was expressed, especially written communication, with the
wish for it to be clear, concise, and easy to understand. A lack of communication made several
respondents feel that outside counsel had a lack of company knowledge and cultural
DETERMINING INDUSTRY VALUES 74

understanding. The negative impact of this was that outside counsel only focused on the legal
goal rather than the business goal. A lack of knowledge and communication skills can also
inhibit the ability to convey the right signals to decision-makers, such as an arbitrator. These
aspects may not squarely reflect a lack of substantive legal or management knowledge, but their
knowledge was not made apparent to in-house counsel. Specific knowledge and skills, such as
research and industry experience, were not mentioned by in-house counsel. This may be because
they were not known due to a lack of communication.
Behaviors regarding relationships. Within the continuum of a professional to a more
personal relationship, fewer comments and accolades were received when compared to what was
said by in-house counsel who was happier with their outside counsel’s performance. There were
also more suggested behaviors rather than accounts of actual behaviors. Professional-related
behaviors of relationships pertained to the preparation of materials. One in-house counsel felt
that the preparation of materials was important because they are the most frequently provided
forms of communication. A response from another in-house counsel addressed the issue of
advice. When conveyed, it didn’t appear to be very well thought out, and in-house counsel was
left with the impression that outside counsel was more concerned with their own interests rather
than those of the company they represented.
Most comments pertained to personal behaviors. Outside counsel’s orientation towards
the attention they gave the matter and communication with in-house counsel were the primary
aspects raised. Orientation towards the matter was described by two respondents in an ideal
way. They said that their outside counsels’ attitude should show confidence in a positive
outcome, and eagerness and interest in taking on the challenge of the matter. A lack of passion
about the facts of the case negatively impacted their relationship. Behaviors relating to
DETERMINING INDUSTRY VALUES 75

communication came across as a lack of follow-through, and too few written updates about
progress and events that occurred. This reflects upon outside counsel’s communication
practices. In-house counsel feels that their preferences should be known and respected. Two
respondents specifically suggested that outside counsel should not argue with them about their
decisions or defend mistakes when in-house counsel tries to discuss it with them. Another
respondent stated that their expectations about responsiveness should be known as well. These
behaviors indicate that that outside counsel can have a better relationship from increased
attention and communication in order to make their knowledge and skills better known to in-
house counsel.
Research Question 3: How do in-house counsel of U.S. based national restaurant chains
determine the effectiveness of outside counsel?
Analysis of litigation results explains the positive and negative impact that behaviors
have in terms of benefits to the organization. Each respondent was specifically asked about
whether or not he or she analyzed the results of the litigation matter. Of the 12 respondents, only
two responded affirmatively. One respondent stated he was interested at whether the victory was
cost-effective. The other respondent examined the extent to which the matter was unique,
whether the legal theories had been used previously, and the length of time to obtain results, the
resources devoted to the matter against the dollar amount of the claims, and whether outside
counsel spent wisely to get the positive results. Even though other respondents stated they did
not use any specific evaluation techniques, they mentioned general gauges of success, such as
experience and comparisons with results from other similar matters.
There is not a universally accepted approach within literature analyzing the results of
work performed by outside counsel. On the other hand, there are suggestions. Hodge and Reyes
DETERMINING INDUSTRY VALUES 76

(2011) suggest the use of a balanced scorecard with established criteria and expectations. They
suggest comparing the results to the items on the scorecard. They argue that items on the
scorecard should align with business strategies. Alternatively, Paulmann and Hackett (2009)
suggest that experience, expertise, reputation, responsiveness, confidence level, and/or trust can
be on the scorecard. Vischer (2011) emphasizes that various items that are not necessarily based
on a cost-benefit analysis, such as trust, should be included. As the results from the survey
show, there are many valued items that can be included on a scorecard when evaluating the
performance of outside counsel.
The most salient benefits to the organizations seemed to depend on the strength of the
relationship between in-house and outside counsel. The best relationships facilitated results that
also benefitted the relationships with others connected to in-house counsel, such as their
managers or customers. Work was done in a way that supported the business interests of in-
house counsel’s organization, such as costs and strategies. Because more is known about in-
house counsel due to a longer-term relationship and increased communication, results were
obtained in a reasonable amount of time for an amount that was deemed favorable to in–house
counsel. Some aspects of success depend on what in-house counsel can control, such as length
to conclusion. The better the rapport and relationship is between in-house and outside counsel,
the greater the chance there is for more control, more effective strategies, and a more satisfactory
result for a litigation matter. As a limited services respondent stated “Finding a win/win
[solution] is always positive.”
Conceptual Framework
The knowledge and skills of outside counsel can surface and become known to in-house
counsel if there is a longer-term relationship or frequent communication. Trust, confidence and
DETERMINING INDUSTRY VALUES 77

respect are established and form a very positive working relationship that can be both
professional and personal in nature. These and other positive behaviors that result in a broader
and more personal connection between outside and in-house counsel help to obtain a result that
translates into financial, interpersonal, or other benefits that support the strategy of the
organization being represented. Positive results and experiences based on numerous factors
increase the likelihood of outside counsel obtaining the future business of the same organization.
The values identified in this chapter have provided me as the researcher with an eye opening
experience, and they can have positive implications for both practice and future research.

DETERMINING INDUSTRY VALUES 78

CHAPTER 5

Implications

Identifying the values of existing or potential clients within an industry in terms of
knowledge, skills and behaviors should allow attorneys within law firms to align their actions to
their clients’ expectations and business strategies. Outside counsel or firm relationships with in-
house attorneys that are sustained over time and/or have frequent communication have the ability
to develop thorough insights into their expectations and preferences. Literature suggests that
certain knowledge, skills, and behaviors are critical to outside counsel’s performance, which is
also seen from the results of the twelve respondents who participated in this study. Client values
could be integrated into existing job responsibilities. Bernhard (2010) writes that the training of
lawyers would include the development of a variety of skills obtained through different
educational techniques.
Through formal training of their attorneys, law firms also have the ability to infuse their
approaches to client service into employee performance expectations so that the loss of future
business with clients is prevented (Bird, 2008). This chapter suggests ideas that outside counsel
can use to bring client values into their formal attorney training programs, and also proposes
areas for further research. Through a more direct alignment with client values, outside counsel
can work towards efficient practices that compliment specific client expectations. A law firm can
manage their knowledge and resources to facilitate their employees’ progression to expertise by
identifying and building upon what employees already know. This creates an ability to provide
increased value over time to clients. Law firms who demonstrate valued performance at an
acceptable cost will likely have the trust and recurring business of clients, resulting in a greater
share of the marketplace. Otherwise, they may see a loss of business and more stressed or
unsatisfied employees.
DETERMINING INDUSTRY VALUES 79

Valuable Personal Insights
Given my personal background in a law firm setting for many years, this study greatly
expanded upon my understanding of the mindset of clients and what serving them well entails. It
is sometimes difficult to separate a personal orientation from a client orientation when the two
are not aligned. With the expectation of billing a certain number of hours being dependant on
bonuses or remaining in good standing, a delicate balance between personal interests and client
interests exists every day. The presence of client values in every day practices are especially
important for the many law firm employees who do not necessarily interact with clients on a
regular basis, yet bill time to their matters. Profitability is important, but can be compromised
when clients are dissatisfied with the services provided by attorneys, staff, and the vendors they
manage. Client values can help to guide decisions if they are aligned with organizational goals
and cultural norms, and can increase the potential for future business.
My interest in training to help others who were new to the paralegal profession evolved
into an interest in having the ability to see whether training efforts positively impacted
performance. Without clearly established or consistent performance expectations, a measureable
impact of training is very difficult to determine. This study not only provides details about what
is important to clients, but it also provides an emphasis as to what values are more highly
regarded than others. What is understood about client values from being in a law firm
environment is different from the details provided in literature, and even more different from the
information provided by the clients themselves. There is a much greater scope of detail about
client values from this study that can be integrated into training practices, but more importantly
into the culture and expectations of law firms. Training can have a greater ability of impacting
performance when expectations are not only clearly defined, but also aligned with client values.
DETERMINING INDUSTRY VALUES 80

Implications for Practice
Resources, time, and commitment to long-term mastery performance standards are
necessary for the development of competency models. By identifying areas where it would be
beneficial for their employees to improve performance, a law firm can provide the training
support that meets organizational expectations, aligns with overall organizational goals, and
provides value to clients who seek legal services. Valid and reliable competency assessments
can also greatly compliment the more subjective or impersonal indicators of performance to
provide a more comprehensive view of an employees’ capabilities and potential contributions to
the organization. This can ensure that they are able to met client needs, or identify areas that
need improvement. Specific performance expectations can also be a part of the annual review
process where competency standards are connected to an employees’ evaluation. The absence of
connecting client values to performance may cause employees to be more oriented to their own
self-interests, which may not be in the best interests of the clients they serve.
Alignment with client values can also be beneficial for establishing consistent
performance approaches throughout the firm. Although empirical research by Winter (2011)
shows that lawyers need “autonomy, flexibility, and responsibility” (p. 302), consistent practices
for tasks that are more simple and commonly performed across more than one office can increase
efficiency and reduce costs for clients. Internal formal training programs can incorporate client
values that are relevant to routine tasks, such as filing practices with courts or agencies, the use
of software programs, or internal document management storage and retrieval methods. These
training programs can also address soft skills, such as best practices for communication with
clients. The more complex valued skills, such as strategy development or problem solving
techniques, are more relevant to the autonomy and flexibility that Winter (2011) mentions, and
DETERMINING INDUSTRY VALUES 81

an emphasis on consistency would not be as beneficial for these more advanced skills.
Regardless of the responsibilities complexity, client values can be integrated into a broad area of
training that supports a law firm’s competencies and performance expectations.
Implications for Future Research
This approach to identifying how clients felt about their outside counsel’s performance
on a specific litigation matter is only one of an array of possible approaches. Interpreting and
analyzing data was highly subjective and the comments received may very well have been
categorized differently if done by another person or more than one person. Different approaches
to determine a synthesis of values for litigation, or other types of matters, could be useful for
those who work in a given practice area.
Literature provides very general ideas about what is valued by in-house counsel. Details
about values of in-house counsel for various industries, or details about the behaviors that define
a particular value could be useful for law firm practices and formal training programs. Only one
industry was chosen for this study, but research into the values of in-house counsel from other
industries could be interesting as well. A comparison of values from other industries to the food
services industry could determine whether there are consistent values across industries.
Research about the details of a certain general value, such as which behaviors have the greatest
impact on costs, could also be useful. This aspect of research could determine which behaviors
are most valuable to clients, and may be different from what law firms expect to be valuable.
These nuances could help law firms to tailor their training practices to a specific practice area in
order to better support their clients, or train employees about key values within the industries
they support.
DETERMINING INDUSTRY VALUES 82

Incorporating the received industry-specific client values into the organizational goals
and practices of attorneys within a law firm may not necessarily be applicable to a given law
firm. Research to connect values of the client with the internal competency models, training
programs, and knowledge management practices of the law firm would be interesting. The
competency model approaches in this paper are theoretical because access to internal practices of
a particular law firm was not feasible. Actual application of industry standards to law firm
practices could help to determine the relevance and perceptions of client values to the business
restrictions within a given law firm.
Chapter Conclusion
Establishing client-oriented goals and connecting them with the knowledge and skills
needed to reach these goals can greatly prepare law firm attorneys and staff to better serve their
clients. The data obtained from this research study contains the thoughts of 12 in-house
attorneys who were gracious enough to share their time and talk about experiences with outside
counsel on a specific litigation matter. These 12 experiences provided more information about
what clients’ value than what would have been obtained if information was only gathered from a
single attorney/client relationship. However, not all aggregated information may be applicable to
a particular law firm.
It is possible that this knowledge about client values within a particular industry could
prompt law firm attorneys to have productive conversations with their clients to see how their
particular needs can be met as fully as possible. Increased conversation can help to strengthen
relationships and provide benefits to the client’s organization that extend beyond the result of a
litigation matter. The law firm may also benefit from longer and more profitable relationships
DETERMINING INDUSTRY VALUES 83

with in-house counsel and their organization. Competencies are a way to formally analyze what
is expected, and see what is missing once client values are determined.
Detailed data about client values can help law firms to develop approaches that
continually enhance their formal training programs and maximize employee performance. An
awareness of behaviors associated with what clients perceive as good customer service by
outside counsel can also help to reconcile clients’ dissatisfaction between rising costs and work
performance, and help to strengthen relationships that can increase future business potential for
outside counsel.

DETERMINING INDUSTRY VALUES 84

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DETERMINING INDUSTRY VALUES 89

ATTACHMENT A
University of Southern California
Rossier School of Education
3470 Trousdale Parkway
Waite Phillips Hall 501
Los Angeles, CA 90089-4035
MEASUREMENT INSTRUMENT FOR NON-MEDICAL RESEARCH
Integrating Client Values into Professional Development Practices:
Determining Industry Preferences and Expectations to Strengthen Performance

QUALIFICATION OF THE PARTICIPANT
A. Are you the person who determines whether the overall work done by outside counsel for
litigation matters is or is not acceptable? [YES or NO]

B. Did you manage the work of outside counsel for at least one recently completed litigation
matter that lasted a minimum of six months? [YES or NO]

C. Were you in-house counsel through the duration of the litigation matter? [YES or NO]

D. If answers to A-C above are “Yes,” please provide your name and the company you represent.
[OPEN TEXT ANSWER]

SURVEY CONTENT
For the following questions, please consider a recently completed litigation matter
where you had legal representation for a minimum of six months.

1. Please describe the matter being considered in terms of:
a) the nature of the matter [OPEN TEXT ANSWER]
b) the length of the matter [OPEN TEXT ANSWER]
c) the entity type [Radio Button Choice]
* Full Service Restaurant
* Limited Service Restaurant
* Cafeteria/Buffet
* Snack/Nonalcoholic Beverage Bar

DETERMINING INDUSTRY VALUES 90

2. Please indicate your agreement with the statement “I was satisfied with the result of the
litigation.”
1 2 3 4
Strongly
Disagree
Somewhat
Disagree
Somewhat
Agree
Strongly
Agree

3. What were the factors that contributed to your chosen level of satisfaction for this litigation
matter? [OPEN TEXT ANSWER]

4. Were the results for this matter analyzed against a certain standard approach used to evaluate
all other litigation results? [YES or NO]

5. If a standard approach for all litigation results was used, please describe the approach.
[OPEN TEXT ANSWER]
6. Please indicate your agreement with the statement “I would consider using the same legal
representation for a similar litigation matter if needed in the future.”
1 2 3 4
Strongly
Disagree
Somewhat
Disagree
Somewhat
Agree
Strongly
Agree
7. Describe why you chose the level of agreement above. [OPEN TEXT ANSWER]
From the beginning of the matter through the initial trial or arbitration date:
8. In what ways did outside counsel portray verbal or nonverbal behaviors that support your level
of consideration regarding future legal representation for your company?
[OPEN TEXT ANSWER]

9. Of the behaviors you provided, please state which ones you feel are more important than
others, and describe why. [OPEN TEXT ANSWER]

10. In what ways did outside counsel handle their documentation for this matter that supports
your level of consideration regarding future legal representation for your company?
[OPEN TEXT ANSWER]

11. Of the ways that documentation was handled, please state which ones you feel are more
important than others, and describe why. [OPEN TEXT ANSWER]

DETERMINING INDUSTRY VALUES 91

If applicable, from the initial trial or arbitration date through the final resolution:
12. In what ways did outside counsel portray verbal or nonverbal behaviors that support your
level of consideration regarding future legal representation for your company?
[OPEN TEXT ANSWER]

13. Of the behaviors you provided, please state which ones you feel are more important than
others, and describe why. [OPEN TEXT ANSWER]

14. In what ways did outside counsel handle their documentation for this matter that supports
your level of consideration regarding future legal representation for your company?
[OPEN TEXT ANSWER]

15. Of the ways that documentation was handled, please state which ones you feel are more
important than others, and describe why. [OPEN TEXT ANSWER]

16. Please provide any other comments or information that was not covered in this questionnaire.
Also, if all of the questions were answered, please indicate where you would like your Charity
Choice gift card to be sent. [OPEN TEXT ANSWER]

Abstract (if available)

Abstract An increasing demand by corporations for alternative billing arrangements, as reported by the Association of Corporate Counsel in 2009, indicates that the expectations and responsibilities of lawyers need to complement their client’s business strategy in a cost-effective manner. The purpose of this study is to examine the client’s perspective on value received from outside counsel in terms of cost and performance for work on a litigation matter within the food services industry. Additionally, the overall relationship between the client and outside counsel is connected to aspects of value and business strategy. ❧ The population consisted of 150 members of the National Restaurant Association as of July, 2012. Contact information for 50 in-house counsels for these restaurants was obtained from Wolters Kluwer Corporate Counsel Profiler, www.martindale.com, or The Directory of Corporate Counsel 2011-2012. Through a maximum of four attempts, 12 in-house counsels completed either an online survey or a phone interview. The client’s views of being satisfied with outside counsel’s handling of the matter, the client’s evaluation of the matter, and the likelihood of the client using the same counsel in the future are key components of the survey. ❧ Results showed that in-house counsel valued a wide variety of behaviors that fell into the categories of knowledge, professional skills, relationship between in-house and outside counsel, and benefits to the organization. Results also identified behaviors not necessarily associated with the outcome of the matter that strengthen or weaken a relationship. These insights contribute to how law firms can align their resources to client work so that is advantageous over their similarly sized competitors. Additionally, law firms can identify the essential values needed to sustain a longer-term relationship with these clients and earn their future business. These aspects can be incorporated into their competency models and cultural norms.

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Asset Metadata

Creator Friedman, Susan L. (author)

Core Title Determining industry values to strengthen attorney-client relationships and performance

School Rossier School of Education

Degree Doctor of Education

Degree Program Education (Leadership)

Publication Date 07/30/2013

Defense Date 05/15/2013

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag attorney-client,business development,competencies,customer service,food services industry,formal training,OAI-PMH Harvest,performance,Relationships,Restaurants,Value

Format application/pdf (imt)

Language English

Contributor Electronically uploaded by the author (provenance)

Advisor Hentschke, Guilbert C. (committee chair), Slayton, Julie M. (committee member), Yates, Kenneth A. (committee member)

Creator Email susanlfriedman@outlook.com

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c3-306281

Unique identifier UC11294039

Identifier etd-FriedmanSu-1895.pdf (filename),usctheses-c3-306281 (legacy record id)

Legacy Identifier etd-FriedmanSu-1895.pdf

Dmrecord 306281

Document Type Dissertation

Format application/pdf (imt)

Rights Friedman, Susan L.

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Access Conditions The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the a...

Repository Name University of Southern California Digital Library

Repository Location USC Digital Library, University of Southern California, University Park Campus MC 2810, 3434 South Grand Avenue, 2nd Floor, Los Angeles, California 90089-2810, USA