Chairman's Message - DD 12/03

Defense Digest

Chairman's Message

As I have espoused on countless occasions, our Firm prides itself on being innovative.  Our growth was fueled in large part because we had the ability to reinvent ourselves and to recognize that change is always an imperative.  If the management of our Firm was mentally mired in the past, we would still be a small defense firm struggling to survive. 

Thankfully, that is not the case.  Our Firm currently has over 325 lawyers serving five states from seventeen regional offices.  Our lawyers and support staff have state-of-the-art hardware and software programs, and our investment in cost efficiency and productivity by utilizing electronic document and information creation, storage, retrieval and transmission processes have been the envy of our peers.  Have the majority of our clients changed with the times as we believe we have?  Sometimes I doubt it. 

For instance, take alternative billing.  Everyone seems to talk about it, but the past seems to have applied a chokehold to efforts to innovate and experiment with true alternative billing.  In my opinion the problem is multifaceted, but has evolved primarily because clients view alternative billing simply as an expense cutting exercise.

It is my contention that to stay ahead of the curve, decision makers at the highest levels in the litigation process have to recognize that profound changes must be made in the utilization and monitoring of outside counsel representing parties in litigation.  Over the last decade, many superficial attempts to control expenses have not accomplished the desired result on any significant or long-term basis, have not improved indemnity results, and have impaired the attorney-client relationship.

Defense counsel in many instances lost sight of their objectives and many defected to the plaintiff's Bar.  Defense firms found it more difficult to attract and retain superior young lawyers as young lawyers observed more senior lawyers leaving the defense practice for other kinds of work and observed the frustration and dissatisfaction of senior lawyers who were forced to negotiate their way through a myriad of details in an effort to achieve superficial savings on legal expense with little or no focus on the outcome of the litigation.  The bottom line was that too much lawyer time was expended attempting to meet artificial administrative goals with inadequate attention being paid by the client to the quality of the lawyering being performed.  The bottom line is that defense lawyers were being asked to work harder to achieve administrative goals for less money and with less focus on the quality of the lawyering and on the success of the outcome.

Although many companies piously became advocates of alternative billing, very, very few had the courage of their convictions.

It is obvious that the most rational and workable paradigm for controlling legal expenses without compromising quality requires those services to be purchased on a contract basis.  Lawyers should be treated no differently than any other type of vendors, and those who deliver the best service and obtain the best results should be made exclusive or primary members of the team in partnering with company personnel.  The pricing is a matter of number crunching and trust and has worked successfully for those innovative companies that were willing to experiment, such as AIG and DaimlerChrysler.

Our Firm has always been entrepreneurial in its outlook and would welcome alternatives to hourly billing if it were on a broad based and contractual model that would focus on quality and competent representation without being overwhelmed by administrative niceties.

As Machiavelli observed:  "Whoever desires constant success must change his conduct with the times."

Your comments on this subject are welcome.  You can reach me by mail at 1845 Walnut St., Philadelphia, PA 19103; by direct dial telephone at 215-575-2614 or by e-mail at rcoleman@mdwcg.com and by fax at 215-575-0858.