Disillusioned with private practice? Want to get off the treadmill of having to record ever more chargeable hours?
Want a life? Then why not move in-house and leave all that frustration behind!
It’s a temptation that’s been luring law firms’ beleaguered masses for nearly a generation now.
Even though the grass is always proverbially greener in the other guy’s yard, you will need to appreciate, before you make the jump, that there is a huge “culture” gap between being in a professional partnership and being part of a corporate environment.
If, as a lawyer in a partnership, you still cannot accept being told what to do by those who manage the firm, how are you going to survive in a corporate hierarchy where everyone knows their position in the pecking order? To successfully make that transformation from law firm to law department, you will have to understand and accept the notion of accountability, and swallow a certain subservience, as the price of your progress up the slippery corporate ladder.
Be clear as to you goals before you make your move. Ask yourself, “What do I really want to be – a technical lawyer or a top decision-making manager?” In-house life is all about ambition and determination to get to the top because, as a mere technician, you are unlikely to get very far.
Do not be misled into thinking that life in-house will be easy. Many corporate counsel actually work longer and harder, and under more stress, than their counterparts in private practice because corporations are intensely value-driven organizations.
Due Diligence
Above all, carefully choose your company. Big is not necessarily beautiful. So:
·Given recent events in the corporate world, check out the company and, in particular, its auditors and accounting practices. As an in-house lawyer, you can all too easily become very close to the epicentre of the not-so-kosher action.
·Avoid new technology companies.
·Check out the fate of your predecessors in the law department.
·Find out how long the head of legal has to go before retirement. You could be waiting a very long time and with no guarantee that you will ever step into his or her shoes.
·Evaluate the career paths that exist for lawyers within the company. You will be hired to carry out a specific function and there may be no possibility of advancement. Find out if any lawyers have made it to senior management positions in the past. It could be a career dead end for you.
Adapt to Survive
Having decided that this is what you really want to do, and having then made the jump, you will quickly need to adapt to the particular culture of your company and become a fully integrated member of the corporate team. Do not allow yourself to remain aloof and to develop a reputation internally as “one of those lawyers who think they’re above it all.”
Corporations can be very political, so start by developing a political nose and take your time to ascertain where in the company the power really resides. Then make sure you keep close to it. Always look after the people who really matter and give them the service they demand, and more.
Take steps to make yourself nearly indispensable, and always the first person they call when they have a problem. In this way, you can become a part of the very hub of decision-making in the company.
Dealing with external lawyers
Take a hard look at the company’s external legal advisors and make sure you are getting best value out of them. Companies are performance-driven and value-driven, and you will be judged on how well you and they perform. So:
Do not favor your former firm out of emotional ties or friendships if they cannot perform to your exacting standards. Make sure your external lawyers never fail to perform because it is you who will be held responsible.
Carry out a review of your external lawyers from time to time to keep them on their toes. Only retain those firms that have shown they can consistently perform to your satisfaction. But be careful not to make enemies when dealing with those external firms who may have long-established relationships with, and the ear of, the people who matter in your company.
Demand open-book accounting and total transparency from your external law firms when it comes to fees and fee structures so you obtain best value every time.
Value for the company’s money
There is one additional area in which you should tread carefully. In this economic climate, many companies are looking to cut costs, and that includes reviewing the cost effectiveness of their internal legal resource. Make sure as an in-house counsel that you and your legal team provide the company value for its money. Otherwise, you’re on thin ice.
What companies look for
The in-house lawyers who are most likely to prove their worth in today’s corporate climate are the ones who add value, time and time again, by dispensing wisdom, experience, and common sense, particularly at the strategic level. This is what many companies are really looking for and those who succeed in this are usually the ones who rise to the top.
Editor’s Note: Peter Scott is a solicitor and a Director of Horwath Consulting in London. He advises law firms from the United States, United Kingdom, and elsewhere on strategic, management, and implementation issues. The article was adapted from his website: http://www.peterscottconsult.co.uk
The Rules Committee has made drastic proposals for constitutional and statutory amendments aimed at introducing case management and alternative dispute resolution in Kenya. The proposals for amendments, which affect section 77 of the Constitution, Civil Procedure Act, civil procedure rules and court of appeal rules, have now been compiled pending discussion by stakeholders.
The amendments aspire to facilitate 'just, expeditious and proportionate resolution of civil disputes'. This is proposed to be achieved by placing a constitutional duty on the courts and other adjudicating authorities to give cases fair hearing within reasonable time and to ensure that substantive justice always prevail over procedural justice.
In this article, I will focus on the portions of the amendments that cater for case management and court-annexed ADR with emphasis on mediation.
The proposed amendments to the constitution
The current section 77 (9) of the Constitution is proposed to be renamed as 77(9) (a) and 77(9)(b) and reworded so that 77(9)(a) incorporates the objective ofcivil procedure in Kenya as to facilitate fair hearing and give due regard to substantive justice as opposed to procedural technicalities.
The proposed section 77 (9) (b) of the Constitution enjoins courts and other adjudicating authorities to promote and encourage reconciliation, mediation, arbitration and other alternative dispute resolution methods in settlement of disputes.
An additional section 77(16) is proposed to provide constitutional basis for case management in civil and criminal matters. If passed into law, this subsection will compel courts and other adjudicating authorities to establish, implement and enforce a case management system both in criminal and civil case. This will help reduce unnecessary costs and delay and facilitate early and fair settlement. The overall aim is bring all court proceedings in Kenya to an expeditious and just determination.
Proposed Amendments to the Civil Procedure Act
The Civil Procedure Act is proposed to be amended by introducing section 1A to provide facilitation of just, expeditious and proportionate resolution of civil disputes in Kenya as the overriding objective of the Act. In effect, the court, the parties and their legal representatives are obliged to give effect to this object. Advocates and their clients are to aid in achieving this objective at pain of costs for non-compliance.
In furthering the overriding objective, a new section 1B of the Civil Procedure Code is proposed to incorporate case management. The aim is to, inter alia, achieve just determination of court proceedings, efficient disposal of cases, efficient use of judicial and administrative resources, reduction of costs of litigation and use of technology.
In order to introduce ADR, amendments have been proposed to the definition section and section 59 of the Civil Procedure Act. To be specific, amendments have been proposed on section 59 of the Civil Procedure Act by introducing four new sections that cater for reference to mediation, other dispute resolution methods.
The proposed section 59A requires reference of all suitable suits to mediation to be conducted in accordance with the proposed mediation rules annexed to the amendments. Section 59D gives the courts power to enforce private mediation agreements as long as they are in writing and facilitated by qualified mediators upon registration in the court registry.
An accreditation committee for approving mediators to be listed with the Mediation Registrar for undertaking mediation under the Act is to be established under the proposed section 59B. Such accreditation committee is to have the responsibility of supervising the regulation, training, certification, accreditation and disciplining of mediators listed with mediation registrar.
In addition, courts are given powers under section 59C, subject to agreement by parties, to refer suits before it to any other method of dispute resolution. Such referral and the method thereof is proposed to be governed by the procedure agreed to by the parties and/or as ordered by the court. In essence, this provision gives courts and parties the discretion to utilize ADR methods in expediting dispute resolution.
Case Management under the Proposed Amendments
The proposed Order 3 under the amendments proposes to introduce case tracking system by requiring Plaintiff, while instituting the suit, to indicate the choice track for the case. The amendments establish the following three track systems, namely "small claims", "fast track" or "multi-track".
Small claims are defined under the proposed amendments to refer to simple claims, involving not more than two parties and whose monetary value does not exceed Kshs. 50,000/-. The Fast Track denotes cases with straight forward facts and legal issues, relatively few parties and those which would likely be concluded within 180 days.The Multi-Tract is used to refer to cases with complex facts and legal issues or several parties and which would likely be concluded within 240 days.
In choosing the ideal track, the plaintiff is to have due regard to such considerations as, inter alia, complexity of the issues involved, the financial value of the claim, the likely expense to the parties and the importance of the issues of law and fact to the public. In addition, the plaintiff needs to consider the nature of remedy sought, number of parties and/or prospective parties involved in the suit and the time required for preparation for trial and hearing.
Where the plaintiff classes the suit under fast track and multi-track suits s/he is enjoined to file, in addition to the plaint, a verifying affidavit, a list of witnesses to be called at the trial, written statement on oath of the witnesses and copies of documents to be relied on at the trial including a demand letter.
Similarly, the defendant is also required ensure a defense to such suit is accompanied by a verifying affidavit, a list of witnesses, written statements on oath of witnesses and copies of documents to be relied on at the trial. These accompanying documents are to be used in case management. The time for filling reply to defense is proposed to be extended from the current 7 days to 14 days as proposed by stakeholders.
Elaborate Pre-Trial Procedures
The proposed amendments also make provisions for pre-trial procedures. Thus, 10 days after the close of pleadings, parties are required to complete, file and serve the pre-trial questionnaire which is provided in an Appendix to the amendments.Further, within 30 days of close of proceedings, the court is to convene case conference to, inter alia, identify contested and uncontested issues, explore methods of resolving the contested issues, secure parties' agreement on schedule of events of proceedings, create a timetable for the proceedings as well as narrow or resolve outstanding issues. On conclusion of the Case Conference, the court is required to issue a case conference order.
In order to create opportunity for settlement, the proposed amendments provide that courts, within 60 in case of fast tract case and 90 days in case of multi-track case, convene a Settlement Conference. The purpose of the settlement conference is to consider the settlement of the case and/or issues in the case and provide the parties an opportunity to settle and/or narrow down the issues in the case. In that connection, the parties are required to prepare and exchange a settlement conference brief outlining, in summary form, the facts of the case, summary of issues and law relied upon by each party, final list of witnesses and summary of their witness statements and expert reports and relevant excerpts of documents relied upon.
If parties fail to reach a settlement, a trial conference is convened within at least 30 days of the hearing date. The parties are also required, at least 10 days to the day scheduled for the trial conference to complete, file and exchange trial conference questionnaire.
The purpose of the trial conference is to plan the trial, explore expeditious ways of introducing evidence and defining issues and to consider the necessity of amending pleadings. Trial conference also offers an opportunity to court to make orders relating to expert evidence, receiving evidence by exhibit, making referral orders for ADR and ordering examination of witnesses by issue of commission outside court and/or allowing use of affidavit evidence. At the conclusion of trial conference, the parties and their advocates are to sign a memorandum setting out the results of the conference.
The proposed Amendments on Court-Annexed Mediation
The procedural aspects of the proposed court-annexed mediation are outlined in the proposed new order 45A whose aim is to incorporate mediation in the Civil Procedure in Kenya. The new order provides for the Mediation rules according to which any reference by the court to mediation is to be conducted.
Order 45 anticipates court-mandated mediation only after the filling of the suit and close of pleadings. The court is to hold a scheduling conference within 21 days of close of pleadings to give parties directions on referral to mediation. In such conference, the court has discretion to order that that it will conduct the mediation itself or refer the suit to the Meditation Registrar for allocation of a mediator.
The office of mediation Registrar has been created under the rules. S/he is supposed hold a scheduling conference within 30 days of reference for purpose of referring the case to mediation. At the conference, the parties are to appoint their mediator from the list of qualified mediators kept by the Registrar either by agreement of the parties failing which the registrar shall assign them one.
Upon appointment, the mediator is obligated to convene the first session within 14 days of the referral order. The mediation must take place within three (3) months after referral order subject to extension by the court. Whether or not an extension is granted depends on the complexity of the matter, number of the parties involved. A consent of the parties to the extension must first be filed in court.
In interest of time, the mediator is obliged to fix a mediation hearing as soon as possibleand serve every party with a notice indicating the venue, time and date of the mediation session. The notice, which is also to be filed with the court, must indicate that attendance of the parties to the first mediation session is mandatory. Subsequent to such notice, the parties are to provide the mediator, within at least seven days of the hearing, with a copy of statement identifying the factual and legal issues in dispute and their position and interests and attach statement of documents in support of the case.
Before commencement of the mediation, the mediator is to explain to the parties his/her role. After conclusion of the mediation, and within ten days thereof, the mediator should publish a report of the mediation stating whether or not the parties reached or failed to reach a settlement.Where the parties reach a settlement, it must be filed within ten days of conclusion of the mediation. If the agreement settles the suit, the mediator is obliged to file a notice to the effect. Subsequently, the court shall enter judgment in terms of the judgment.
Appeal against judgment pursuant to mediated agreements is forbidden under the amendments.Where no agreement is reached, the suit is to be set down for hearing. However, the court may order further mediation, with directions where necessary if parties consent to a further reference.
The amendments propose that communications and records in mediation be confidential and without prejudice. Further, it is proposed that matters discussed at mediation hearing be absolutely privileged to rule out its adduction in any legal proceeding as admissible evidence. In addition, the mediator and participants in the mediation may not be summoned, compelled or required to testify or produce records or notes relating to the mediation before any court of law.
Applications to enforce mediation agreements are required to be filed and served to the opposite party within seven days thereof. If no opposition is lodged within seven days of service, the agreement is to proceed to be registered as judgment of the court. If the application is opposed, the hearing thereof is to be concluded within a maximum of three weeks.
Conclusion
There is no doubt that if ever these amendments find their way into statutes books, civil litigation and disputes resolution in Kenya shall never be the same again. In any case, case management and court-annexed ADR has already been successfully adopted in other jurisdictions including England, Australia and Uganda.
It is for this reason that the proposed amendments are lauded as timely and deserving of support by all stakeholders in administration of justice in Kenya including lawyers. That is not, at all, to say that amendments are perfect and should be adopted wholesale. Rather, it is urged that stakeholder consultation geared at their fine-tuning be undertaken in order to ensure that they achieve the desired effect upon enactment. Most importantly, we need to lobby our legislators to give the amendments a chance.
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Paul Musyimi is a freelance Legal Research Consultant in Kenya. He may be contacted via email at pmusyimi@gmail.com and/or on his cellphone +254-724-634198.
By Paul Musyimi, A Freelance Legal Research Consultant.
There is no question that many lawyers in Kenya hate being seen as selling his services to potential clients. Many a lawyer would rather live with the misery of a deteriorating practice than degrade themselves by selling!
Here is the classic defense. Lawyers are noble professionals. Lawyers are all equal. Selling our services brings disrepute to the profession as it involves making oneself appear superior to his colleagues. As such, the quality of services to the client should be left to recommend us to our next brief!
Others argue that to sell oneself as lawyer is to give in to the possibility of being compromised by the client. That is, it is to elevate the client to the position of control and let her call the shots. Lawyers will then degenerate to mere automatons at the command of their clients and our independence will go out the window!
There is no denying that the above arguments hold some logic. However, they are all based on the wrong premise. Selling is not about painting competitor as the bad guy. Selling is not undercutting. Selling is not compromising your professional integrity. Selling is not advertising. Selling, unlike advertising, touting and undercutting, is not prohibited under the Advocates Act, Cap. 16 of Laws of Kenya.
As Chuck Newton puts it, all lawyers sell their services. Why many of them do not know whether they play salesmen everyday is because they have no idea what selling, indeed, is. And that is the main reason why lawyers are still selling themselves short. Because they sell without knowing they are selling!
So, what is selling for lawyers? Should lawyers in Kenya sell their services? If yes, how can lawyers sell their services to achieve maximum returns/
Simply put, selling is about persuading another to do what you want him/her to do at your terms. A toddler who cries for food until his father gives him the feeding bottle is a successful salesperson. It has successfully made its pitch for the father's attention. A teenager who gets herself reprimanded by the mother for rudely asking for pocket money is just a poor salesman. She simply put the mother over the edge with her pitch for pocket money!
We all need attention. To use an analogy given in the Bible, you cannot light a lamb and put it under the bed and expect it to be appreciated. Clients will need to know you exist to appreciate the quality of your services. That can happen if you capture the interest and attention of the clients. Inevitably, seeking attention involves selling yourself to clients.
If seeking the attention one need is what selling is about, lawyers sell all the time. Lawyers sell to judges all the time they make an effort to persuade the bench to favour their clients' position in litigation. Lawyers sell to fellow lawyers when they seek indulgences. Similarly, lawyers sell to clients when they impress them with their presentations and get hired.
Lawyers use all imaginable medium to sell including submissions, teleconference, presentations, case reports, emails, websites, letters, premium cards, thank you notes, business cards et cetera. Some even turn to relationships to sell themselves e.g. by giving speeches in events, joining social chats like face book, engaging in community events, giving to charity, attending church service, requesting for referrals, keeping constant contacts with current clients etc. Needless to say, at times lawyers like teenagers do make the wrong pitch as well.
Now that we know what selling is, we cannot rationally deny that selling is an essential for all lawyers. Selling should not be the preserve of partners. Even associates should also make effort to sell. For instance, they need to sell themselves to the partners for promotion. Associates also have a duty to sell the overall image of the firm to the outside world. Indeed, even pupils have business selling themselves and the law firm! Every lawyer would be well advised to involve his paralegal staff in selling the firm by ensuring they project the right image and competence to the target market.
It is hard to see why selling would be prohibited by the law. And, thank God, Kenyan lawyers are not, at all, forbidden to sell their services! However, there are regulations to ensure that lawyers conduct themselves with decorum while selling their services to clients. And that is a good thing!
The question, thus, becomes how lawyers should sell their services to achieve maximum results. The answer is simple. Sell solutions not practice areas.
As Chuck Newton in the title of his illuminating article asserts, stop selling your practice area and start selling results! Whenever the opportunity presents itself to explain what you do to a prospective client, focus on what your services deliver to clients rather than explaining the dry process that is entailed in a given practice area.
Here is the difference. A lawyer selling practice areas focuses on his specialization. Chuck in the above article gives the following example of a pitch by a family lawyer erroneously selling his services "Hi, I'm Joe and I'm a family lawyer. I handle divorces for clients." Rightly, Chuck asserts:
"The problem is that people generally do not want to file bankruptcy, or pay for a will, or file for divorce, or sue an insurance company. Most people think of a lawyer like a mortician. A mortician maybe a necessary evil, but you do not want to hire one. That is what you do when your emphasis is focused on the selling the label of your practice area."
In contrast to the above, a lawyer selling the results of his services to clients explains how his services make a difference to the client's life. In so doing, he subtly helps justifies why it is necessary for the client to hire him. Such a lawyer also avoids confusing the client. A conversation about results is possible in ordinary language.
For example, a real estate lawyer selling results will avoid focusing her conversation with a prospective client on what she does e.g. drawing land sale agreements and transfers. Rather, she will highlight how her services help the clients attain the dream of acquiring their own homes.
It is just like the story of the stone masons. A lawyer selling practice areas is like the mason who saw his work as just joining stones together to make a wall. The truth is you joined the legal profession to make a difference in people's lives and not to merely file suit papers. A lawyer selling his results is like the mason who beamed with a smile and declared that his job entailed helping put up cathedrals.
Selling results for lawyers is, simply, focusing on the life solutions you deliver to your clients. Start selling your legal services the right way without further ado!
In the information age, the newsletter is a must have for law firms wishing to keep in touch with their clients. Essentially, a newsletter is a marketing tool that helps the firm to raise and spread awareness about the services it offers. Newsletters are usually distributed free to a mailing list made of clients.
However, more often than not, even lawyers who appreciate the value of a newsletter as a marketing tool fail to publish one. Such lawyers often claim to lack idea of what content is fit for a newsletter and where to get it. But what they fail to understand is the audience of newsletters and their information needs. If they did, it would not be hard to see that their claims are unfounded.
Law firm newsletters are not targeted at fellow lawyers. Rather, they have for audience clients and prospects who are laymen and whose understanding of the law is limited.
All you need to do is offer information and tips on the law relevant to their situation and business. To be able to do that well, you need to have an in-depth understanding of your target clients, their personal concerns and businesses. It will help if you have a narrow niche market as, then, it is easy to collect and utilize information on them.
According to the law firm Marketing Coach Krista Baker, the content of a law firm newsletter should entail a mix of tips and explanation of the law plus comments on how recent legal developments affect the clients' life and business. In the article 10 Ideas on Newsletter Content, Krista gives the following incisive ideas on what to include in newsletter content:
The content of your law firm newsletter should be dictated by your clients needs.
The newsletter should have a section dedicated to dissecting legal industry news and what they mean to your clients' business.
Have a section giving your opinion on recent legal issues of concern to your clients.
Consider giving the newsletter an international focus especially where your clients are involved in foreign trade.
Include explanatory articles on different legal topics and keep to simple English while at it.
Consider tackling case histories by hypothesizing a current client problem and explaining how to solve it.
A newsletter may, also, be used to raise awareness of educational activities the lawyer is involved in that may benefit the client e.g. to promote seminars where you have been invited to present a paper.
Inform the client about any useful publications e.g. articles, books etc whether authored by your law firm, government agencies or even other lawyers.
Use the newsletter to promotelawfirm events e.g. entry into a regional law firm alliance and highlight how they boost the firm's services to its clients.
Lastly, spotlight community events the law firm's lawyers are involved in e.g. public interest campaign.
There is no doubt that the above ideas are enough to get you started on a law firm newsletter. In a word, be generous and relevant in giving information in the newsletter. Indeed, even if one decides to outsource preparation of the newsletter to a professional writer, the above tips are useful in giving instructions and assessing the work done.
Authored by Paul Musyimi, the Lead Researcher at the Kenyan legal research firm, Practical Research.
