All practice groups are not created equal when it comes to benchmark metrics. Most notably, metrics abound for litigators. They can count cases, elapsed time, outside counsel costs, pages of discovery, motions filed, resolution amounts and more. Likewise, transactional attorneys who spend much of their time on agreements can count contracts: their type, dollars involved, elapsed time from start to finish, which clients requested them and more. The fertile fields of these lawyers grow benchmarks all over.
Take pity on the poor souls who primarily counsel clients, who give advice over the telephone or by e-mail or in meetings. They struggle in a desert of benchmarks. It’s unclear sometimes when the guidance they gave begins, or how long they were involved. Early on, the dollar value of their guidance may be wholly speculative. Sometimes a proposed action of a client makes no sense or is abandoned and it is unclear about the “closing” date of some advisory matters. When you work through an antitrust problem, there may be nothing put in writing, no milestones and no outside counsel invoices.
In-house counsel, who take client facts and render legal judgments, simply do not have as many discrete things to count. If they don’t track their time – and most corporate lawyers do not – they have days filled with meetings and telephone calls and Outlook messages that range from many quick interactions to a few very long lasting and knotty problems.
Somewhere between these two camps toil patent lawyers. Wearing their patent prosecution hats, they spawn many numbers such as applications filed, annuities paid, claims permitted, countries covered and office actions responded to. But switch hats and patent lawyers give guidance to inventors as to what research fits within freedom to operate or evaluate the patent landscape for possible infringements, so they don’t practice a kind of law that lends itself to tally sheets or benchmarks.
Here is an analogy. Lawyers in counseling mode are analog as compared to litigators, contract specialists and patent prosecutors who are digital. For many in-house lawyers, in terms of countable, benchmarkable activities, part of their life is digital; their counseling role is squishy and analog.
With few metrics to offer, counselors are at a disadvantage to litigators and the other number-rich lawyers. Counselors can’t attach numbers to the guidance they dispense whereas others have all kinds of things they can count and put on fancy charts and show percentage changes year over year. Benchmarks are the friends of digital practitioners but the foe of counselors. Counselors lack the tools to show their productivity and value.
A second analogy draws on the long-running schism between the humanities and the sciences. The humanities deal in emotions, ambitions, the psychology and sociology of complicated people: hardly measurable. The sciences are permeated by numbers and measurements. Science is digital whereas the humanities are analog. To a similar degree, in legal departments, not all practices are created equal in terms of the availability of solid, countable benchmarks.