A blog by Joel Barolsky of Barolsky Advisors

Stop trying so hard to be different

In Articles, Commentary on 6 May 2019 at 4:33 pm

Full text of op-ed that first appeared in The Australian Financial Review on 3 May 2019.

99% of Australia’s full-service law firms have a strategy based on seeking clear market differentiation. In my view, they’re largely wasting their time and money.

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AFR Legal Affairs op-ed

Conventional strategy thinking suggests there are two sources of sustainable competitive advantage: [1] having the lowest cost, or [2] differentiating from competitors on things that matter most to customers. The former strategy allows firms to win by having greater price-setting discretion. The latter strategy allows firms to extract a price premium for added benefits.

When it comes to the legal market, this theory starts to get a bit wobbly.

Research shows that while most law firm clients can distinguish firms between groups of firms, such as Tier 1 versus Tier 2 or domestic versus global, they really struggle to clearly discriminate between specific full-service firms within a group. To clients, many of these firms look and feel the same.

One of the reasons for this is market fragmentation. Unlike most industries with three or four dominant players (think airlines, grocery retail or banking), the Australian commercial legal market has nearly 30 firms claiming in some way to be leaders in legal expertise and client focus. Australia’s largest law firm by partner number, HWL Ebsworth, has less than 5% share of the total market. Carving out and keeping a unique and relevant market position in such a crowded market is next to impossible.

Another reason for a lack differentiation is a self-inflicted one. Most full-service firms present themselves as being all things to most people. Within the partnership model it’s political suicide not to give every partner a guernsey in describing what the firm is really good at.

So, what’s the solution?

The first part of the answer is to worry less about being known for being different and focus more on just being known. Strong brand awareness still counts in opening doors and staying top-of-mind.

The second part is to encourage more differentiation at the practice, partner and/or product level. With a more micro approach, differentiation usually come from legal specialisation combined with a focus on a particular market segment or industry. So, for example, a general commercial litigation team can distinguish themselves by positioning as class action defence specialists for ASX200 companies.

The third element is to concentrate firm strategy on how the firm competes. ‘The how’ refers to the resources, skills, standards and systems used to win. These are collectively called capabilities, or as Pier D’Angelo, Allens’ Chief Strategy Officer, calls them, the organisation’s “muscles”.

Most full-service law firms need work on these five muscle groups and the inter-play between them:

1.   Firm and team leadership – setting and aligning everyone around a clear direction; inspiring others to meet/exceed expectations; and providing support with accountability.

2.   Talent management – recruiting, developing, engaging and retaining the right workforce for the firm to flourish, both now and in the future.

3.   Winning work and capturing value – developing trusting relationships with clients and referrers; converting more of the right opportunities; and pricing profitably.

4.   Collaboration – shifting the mindset from ‘my’ to ‘our’ client and combining expertise from inside and outside the firm to solve clients’ wicked problems.

5.   Operating with discipline – having an efficient and effective operating platform; ensuring adherence to agreed policies; executing plans consistently; and optimising leverage and utilisation.

Spending more time at the law firm gym will, over time, create a form of cultural and operational distinctiveness. Paradoxically, this will most likely be reflected externally and create a firm that both top clients and top people will want to work with and for. They will be authentic points of difference not created by spin doctors but radiating from a firm truly fit for the future.

Why premium law firms are falling behind in a downward trajectory

In Articles, Commentary on 6 April 2019 at 4:54 pm

Full text of my op-ed that first appeared in The Australian Financial Review on 5 April 2019.

The recent Hayne sugar hit can’t hide the fact that the 10-year trend line for legal work done by Australia’s premium firms is on a downward trajectory.

AFR oped 5 April 2019 copy

AFR print edition

One conclusion to draw from this data is that the market for legal work is flat or declining. Another way to look at is that the total market for legal is booming, but the premium firms – those law firms selling their deep expertise and charging higher fees – are losing market share.

There are three key reasons to suggest the latter conclusion is more likely correct:

First is the growth of in-house lawyers. NSW Law Society data revealed a 59 per cent increase in corporate in-house lawyers across Australia from 2011 to 2016.

Second is the growth of  ‘alternative legal service providers’ (ALSPs). Thomson Reuters’ Legal Executive Institute recently reported that ALSPs recorded global revenues of $US10.7 billion ($15.04 billion) in 2017, with compound annual growth rate of 12.7 per cent. ALSPs include firms doing litigation and investigation support, legal research, document review, e-discovery and regulatory risk and compliance.

Third is the growth of regulatory risk and compliance. Over the past 10 years, the Commonwealth Government has introduced roughly 5500 pages of new legislation each year. For every major new regulation there is usually the need for strategic and legal advice; the design and implementation of new compliance systems; and support and investigations when there are breaches. It appears that the demand for legal-related regulatory work has mostly been satisfied by accountants and a range regulatory specialists and software providers.

Vacating low-margin segments

A kind interpretation of the premium law firms decline in market share is that firms have deliberately vacated the segments they’ve perceived to be dominated by low-margin commodity work. By focusing on specialist higher-priced work, firms have been able to maintain partner profits and keep the essence of their business models intact.

A less glowing view is that these law firms have been blindsided by the new entrants, in-house lawyers, the accountants and software providers – and that they are slowly losing the battle of being the most relevant legal advisers to companies and government organisations. They are become niche specialists called in only when there is a really complex legal issue or a dispute and/or where the client organisation wants to transfer risk.

At the recent Managing Partners Forum, Anthony Kearns of Herbert Smith Freehills stated the top concerns of many his firm’s general counsel (GC) clients were more managerial than strictly legal.

They included issues such as:

  • How can we enhance the value of legal to our business?
  • How can we enhance the performance of the legal supply chain?
  • How can we build a platform of influence within our organisation?
  • How can we meaningfully contribute to the development and delivery of our organisation’s strategy?
  • How do we do more for less?

Gap for Big 4

His thesis was that if law firms didn’t start to help their GC clients with these problems, then the Big 4 and other consultants would.

On the surface, it would seem law firms might not have the expertise to assist. But on closer examination most of the larger firms are full of highly specialised HR, IT and marketing and operations people that are highly skilled in dealing with lawyers. At the moment, they’re just facing inwards not outwards.

So, our premium law firms are facing another strategic choice whether to accept this opportunity to help their GC clients, or leave it to other advisers to fill the void?

My prediction is that a small number of premium firms will say “yes” and pursue these and other adjacent business opportunities with vigour. The majority will stick to their knitting and retreat to what they know best – being legal specialists.

There are some interesting times ahead.

Avoiding the Bermuda Triangle of law firm management

In Articles, Commentary on 2 March 2019 at 8:50 pm

Full text of my opinion piece first published by the Australian Finance Review on 1 March 2019.

Is your firm getting trapped in the Bermuda Triangle of law firm management? It might be and, worse still, you might not even be aware of it.

In the early 2000s, Professor Ashish Nanda of Harvard Business School commissioned a study to test whether the concept of economies of scale applied in commercial law firms?

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AFR print edition

He plotted profit per equity partner (PEP) against the number of fee earners for over 200 firms in the United States. The results disconfirmed the scale economy theory but revealed something even more interesting: PEP was relatively high for small boutique firms focused on specific market segments, and for very large firms who were able to compete for larger bet-the-company M&A transactions, projects and disputes. However, a majority of mid-sized firms had lower PEP relative to their much smaller and much larger peers. While the graph had dots everywhere, the best-fitting line looked like a large ‘U’.

Two theories were put forward to explain the U-shape. The first was that many of the mid-size firms found it hard to differentiate themselves and as a result were unable to secure a price premium. The proposition was these firms were in the ‘mushy middle’ losing out smaller and larger firms that were better positioned in the market. A deeper analysis of the data revealed high- and low-priced firms across all the three groups and therefore market differentiation was concluded to be a relevant factor but not the full story.

Growth pain zone

The second theory was that many law firm partnerships suffered heavily from growing pains. Small firms benefited from quick, informal decision-making and lean management processes. Large firms had the advantage of more mature and formal management practices and leadership capability. Problems emerged when shifting from small to large. Professor Nanda called this growth pain zone the ‘Bermuda Triangle of Law Firm Management’.

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The Triangle phenomenon can be explained as follows.

Growth in the number of fee-earners, office locations, service range and clients often results in more management complexity. There are more day-to-day decisions around who to hire, fire, promote, take leave, reward and sanction. There are more issues to deal with in regard to administrative processes, technology and systems. Marketing and business development decisions such as client pursuits, pricing and conflicts become trickier. At a strategic level, there’s more at stake when making major investment decisions and signing long leases for larger premises.

Many law firm partnership struggle with this increase in complexity. A common response is to allocate more partner time to deal with management issues. As decisions become more complex, more and more time is taken up in internal meetings and management conversations. Partners are drawn away from the things that matter most, that is their clients, prospective clients, referrers and people. Firms become internally-focused at the very time that an external market-orientation is most critical. This collective distraction has a material negative impact on firm performance and competitiveness.

With the noble pursuit of partner equality, fairness and sense of proprietorship many firms are reluctant to take away any decision rights from partners. With this approach, almost every decision, from the colour of sticky notes to staff parking policy needs consultation and consensus. This often results in extensive delays and lowest common denominator decision-making i.e. doing what all can agree on rather than on what’s right.

Major blind spots

In some growing firms, partners take on designated management role in key functional areas like HR, IT, Marketing and Finance. While this helps share the load very often the partners overseeing these functions have next to no training or experience in these areas. They have major blind spots and often make sub-optimal decisions that ultimately cost the firm. Even when firms hire specialist managers in these business support areas it is quite common for partners to second-guess these professionals and override their decisions.

The most critical element in navigating through the Triangle is effective leadership and followership. If the firm has a competent leader, they tend not to over-invest valuable partner time in governance roles, they make the right decisions quickly and implement them. Effective leadership builds trust amongst the partners who are happy to cede many of their low-level decision rights. Good leaders provide the right support and intolerance for partners to perform to their full potential. They facilitate a culture that is focused on delivering a superior client and employee experience. All these things matter.

A quick review of the high growth firms in Australia over the past decade confirms this hypothesis. Many have a strong, effective leader or a leadership group that have helped minimise growing pains and navigated through the Triangle. The words of the Bear Hunt, “they haven’t gone over it / they haven’t gone under it / they’ve gone through it.”

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