During May 2006, 162 readers of InsideCounsel responded to a survey by a law firm, Butler Rubin Saltarelli & Boyd. One question asked why alternative fee arrangements do not occur more frequently, with the results provided in InsideCounsel, Oct. 2006 at 53.
Two reasons were most commonly selected: “outside counsel hasn’t approached me about alternative fee arrangements” (49.2% selected this response) and “lack of experience to see if such arrangements work” (47.6%). It is disappointing that so many law departments are so passive; they should insist that their firms propose arrangements other than hourly billing. As to inexperience, just do it!
The remaining reasons were much less frequently chosen. “Under no pressure from management to control legal spending” (11.1%), “Not willing to take risks with my company’s case matters” (23.8%), and “Other” (30.2%). To the reason that “management” has not pushed cost saving, I am disappointed again; a good general counsel should seek cost efficiency whether or not the CEO and other peers press for that goal.
As to risk taking, that is not only a makeweight argument but also misconceives that litigation is the only arena in which law departments can pursue alternative billing arrangements. “Other” might include such notions as that “our spend is too small and irregular to embrace alternatives,” “the services we ask of outside counsel do not lend themselves to alternative arrangements,” or “our clients, to whom we pass on legal fees, do not support such an effort.” Only the diminutive fees point passes muster.