Preparing for my upcoming webinar on September 30th about RFPs to law firms, I pulled together four recommendations that I have not written about.

1. Anticipate questions. Once your Request for Proposal (RFP) is in good shape, have two lawyers who were not involved in the type of matters covered by it or the drafting of it read the RFP carefully and critique it. They should scrutinize it not for writing style or typos but solely to spot ambiguities, missing information, and questions firm partners might want to ask. Then, do your best to answer those plausible questions or confront yourself as to why you can’t or won’t at least try to answer them. The more comfortable firms feel about the facts, the fewer explanations you will have to give later and the lower the fees they will propose.

2. Remove boilerplate (unless you are a government entity and required to include various provisions). Delete throat clearing at the beginning about “conscientious stewards of shareholder assets blah blah blah.” Firms know why you are seeking bids on work. They know you have no obligation to select a firm, that you can choose or withdraw as you will. Every firm knows they bear their own costs, their proposal remains your property of the issuer, and if they don’t follow your rules, you might disqualify them. What I do not consider to be boilerplate is the mandate that they not speak or write to anyone within the company about the RFP work except the named contacts.

3. Assuming you have outside counsel guidelines (See my post of July 7, 2008: guidelines for outside counsel with 16 references.), incorporate them by reference in your RFP. Doing so informs the bidding firms about your expectations, avoids clutter, and puts every firm on the same page.

4. Describe any measures of output and efficiency that you will use to monitor the work of the firm you select. These performance benchmarks are especially important in fixed-fee arrangements but even otherwise you want to have outcome and performance metrics to monitor and expect during the arrangement.

A thoughtful book, Susan Neiman’s Moral Clarity: A Guide for Grownup Idealists (Harcourt 2008), argues that the values of the Enlightenment thinkers – Voltaire, Rousseau, Hume, Kant and others in roughly the 18th century – still stand us in good stead. She condenses them into the importance of happiness and the right to enjoy it; the primacy of reason; reverence for nature; and hope for a better world.

Enlightenment thinkers claimed that the human capacity to reason could ensure steady progress. Science was its embodiment. Neiman contrasts those Enlightenment beliefs to views of humans as flawed, overpowered by animal passions, religious to the core, and locked into a spiral down.

A general counsel who practices and promotes Enlightenment values would try to raise employee morale. Careful thinking would be exalted and tools provided to enable it. Reverence – in a secular sense – might come from admiring the legal system through pro bono activities. A belief in progress and hope for betterment of the law department and its contributions would be manifest.

Enlightenment values occupy one part of the broad spectrum of philosophy (See my post of Sept. 22, 2005: our inabilities to comprehend complexity; Sept. 29, 2006: concepts from philosophy as they apply to law department management; Aug. 27, 2008: John Rawls’ original position; and May 23, 2008: values with 12 references; and Sept. 22, 2008: postmodernism.).

Many general counsel are invited to speak at retreats of their primary firms. Here are some topics that will bring value to the partners and derivative value to the law department.

1. Myths likely held by the law firm about the law department
2. How frequently and by what means the law department picks law firms
3. How many law firms the department retains, and what accounts for that number of firms
4. What goes through the mind of an inside attorney when reviewing bills
5. Sources of tension in billing (what irks us about law-firm billing practices)
6. Views on the relative strengths of outside counsel compared to inside counsel
7. Explicit examples of superior service and inferior service
8. Attitudes of company executives about outside counsel and spending on them
9. Data on outside counsel spending provided to the finance function and senior executives.

“Lawyers are generally not fond of images. Words are their trade. Attorneys’ antipathy toward visualization is confirmed in several psychological studies.” This quote comes from the J. of the Legal Writing Inst., Vol. 14, 2008 at 92, and the article footnotes two such studies described in an earlier article.

The blindness toward images among many in-house counsel makes it more difficult to present data visually, as many tools for data analysis draw on non-textual representations (See my post of May 7, 2008: methods to portray data with 9 references and 22 cited in one of them.).

The category images includes more than graphics produced by Excel, of course. Pictures and drawings and Venn diagrams are what most people think of when they use the term “images.” Representations other than text serve excellently to communicate and persuade; in-house counsel should learn to make effective use of images at appropriate times.

An RFP sent to ten or more law firms generates lengthy and detailed responses. If firms can reply as they see fit, your evaluation team will have a hard time picking out of the mass the comparable answers. Better, much better, to tell firms precisely how you want them to present their responses.

I have seen this done with spreadsheets. Every answer sought in the RFP had its place in the spreadsheet. The rigidity of that approach is apparent, but it certainly made the collation of answers dramatically easier. A less Prussian approach asks for the firms to complete tables in Word documents. The law department can easily copy and paste tables into Excel. At a minimum, instruct firms to follow the format of the RFP questions when they respond.

How long does an RFP process take? Here are some guidelines, but the bottom line is that three months should accomplish it. That means that this process doesn’t fit if you need to select a firm to represent you in a major lawsuit just filed against you. There are ways to streamline this for such a situation.

Two weeks to draft RFP. Once you decide to bid out some chunk of legal work, you should be able to draft a straightforward RFP in two weeks (See my post of Sept. 28, 2008: questions, boilerplate etc.).

Three weeks with the firms. Give firms a week to read and think about the RFP and formulate their questions. Answer the firms’ questions in a week and give them another week to prepare their proposal.

Two weeks for second round. Take two weeks to analyze the proposals, decide on a short list of firms, and feed back to them whatever additional data or responses to their assumptions you see fit.

Give the short-list firms one more week to cogitate further and sharpen their pencils.

Take another week to interview a firm or two and choose the winner.

Take two weeks to negotiate the agreement, which assumes you have included in the second round step a form of the agreement.

A profile of Anne Chwat, the general counsel for Burger King Holdings, in Corp. Counsel, Vol. 15, Sept. 2008 at 71, mentions she hosted a summit in 2008 for her company’s primary external law firms. The summit’s purpose was “to explore ways in which we could work together to keep costs down while ensuring that our outside counsel are fairly compensated for the great work they do for us."

Who bears the costs? I believe the law firms should pay their way and absorb their time. They are investing in the long-term relationship.

Will partners speak candidly? That depends on whether their firms are competing for work. I suspect that many partners will censor their most potent comments.

Are you likely to benefit from the effort? Yes, because it is an efficient way to convey your policies, explain the pressures you are under, and gather some ideas for cost management.

If you convene such a gathering, ask each partner to present a two minute, detailed example of something his or her firm did recently to reduce the costs of the client. That will put them on the spot and might elicit some useful ideas for all the firms to adopt or vary.

General counsel, of the species homo lex riskus aversus, instinctively want to clothe their request for proposal in the chain mail of a non-disclosure agreement (See my post of May 3, 2007: NDA’s and confidentiality commitments.). “Upon penalty of legal annihilation, you must preserve the confidentiality of this document, selection process, and its conclusion.”

To a slight degree, the general counsel may want to thwart a deluge of solicitations from law firms. That worry is misplaced. The firms that have been included will not want to open the gates for other competitors, so they won’t talk. Other firms that manage to find out will recognize that you have already invited a set of firms and that they face an uphill struggle to be included. A more important objection is that you want to choose a good firm, so why not let hopefuls present their favors?

A general counsel might impose silence on recipients of the RFP because of some belief that the methodology of the process is more clever than others have achieved, and its disclosure would fritter away a trade secret. Unlikely, I submit, as many big companies have opened the kimono afterwards to spell out every step of their process (See my post of Sept. 12, 2008: detailed article on Pfizer’s RFP process; Aug. 21, 2005: publicity and competitive secrecy.).

The strongest argument for confidentiality is the proprietary information in the RFP about the company and its legal affairs, such as the number of product liability cases pending, the sub-leasing activity of the company in the Northeast, the anticipated acquisitions of privately-held companies for less than $10 million in the next two years, or the EEOC charges filed against the company during the previous three years. This information deserves to be protected, although the more aggregated the data is the less the need (See my post of Sept. 13, 2006: aggregate outside counsel spend need not be protected.).

Even if the RFP issuer has studded the RFP with complete historical information, what risks do you incur if that information were published on the front page of a newspaper? Little, I suspect, except perhaps mild embarrassment. Forward-looking estimates have more legitimate sensitivity.

In the end, the bother, time and logistics to obtain an executed confidentiality agreement from each firm amounts to overkill. State clearly in the RFP that all information in it – even the document itself and the process it is part of – are confidential and may not be disclosed and leave it at that.

Publicly-traded companies periodically ask their Directors to complete a questionnaire about their independence. One use for the information is to maintain Directors & Officers insurance coverage. Some companies perform the check up more than once a year. For this post, the question is whether the general counsel should be responsible for this corporate governance, primarily administrative task.

No doubt a lawyer should review the results if there is any Director involvement that deserves scrutiny. No doubt a lawyer should make sure that the information gathered from Directors complies with whatever statutes and regulations require. Big doubts, however, whether this quasi-legal task ought to land on the plate of the law department (See my post of April 9, 2008: quasi-legal tasks with 14 references.).

Preparing to write something about Cisco, I rummaged through my past posts. Amazed, I found 30 that cite the company’s law department (See my post of June 30, 2006: much publicity about Cisco’s law department.). That is 25 percent more than the references I collected for General Electric (See my post of Nov. 19, 2007: collects 24 posts about GE’s legal department.).

Many posts have to do with techniques of outside-counsel cost control (See my post of Sept. 14, 2005: fixed fees at Cisco; May 26, 2007: multi-year terms of fixed fees; March 9, 2007: competitively bids patent work; Nov. 5, 2007: Cisco and Fenwick & West; Nov. 24, 2007: service level agreements with firms that work on fixed fees; Dec. 5, 2005: virtual law firms; Jan. 6, 2006: “corporate captive” for LPO services; Nov. 5, 2007: cash incentive for a firm to reduce costs; and May 4, 2007: Brad Blickstein and Cisco saving fees of outside counsel.).

The software tools available in Cisco’s legal department are many (See my post of Feb. 6, 2007: document assembly; April 8, 2007: rules-based drafting tools; June 20, 2007: document management system; June 27, 2006: internal law-department blog; June 17, 2008: Cisco’s High Tech Policy Blog; June 27, 2006: portal for its applications; June 16, 2006: online contracts and e-signatures; and Aug. 28, 2008: telepresence rooms.).

Cisco’s general counsel, Mark Chandler, is an outspoken, thoughtful legal manager (See my post of March 8, 2007: Chandler’s thoughts about the plummeting cost of legal information; March 9, 2007: technology is driving down cost of legal services and information; Oct. 26, 2007: distinction between automation and technology; and May 24, 2005: divides work into “business development” or “transactions, litigation and general corporate support.).

Chandler has been eager to explore and promote all kinds of innovation (See my post of Sept. 14, 2005: Cisco’s self-service model; July 21, 2005: collective action with 8 major law departments; March 9, 2007: creation of Legal OnRamp; Dec. 11, 2007: shared with other law departments some of its technology; Sept. 21, 2005: building its own e-discovery “discovery lab”; Nov. 24, 2005: in-house litigation document infrastructure; May 3, 2007: Brad Blickstein on Cisco’s mining of documents; June 4, 2007: knowledge management directors; Nov. 28, 2007: staff structure of 75 in-house attorneys and 37 non-lawyers; and March 26, 2008: knowledge management systems and technology.).