Two senior Jones Day M&A lawyers have revealed that the Emperor has no clothes and suggest a plan to dress him. Their article raises thought-provoking questions about how deal lawyers practice law.
It’s Time To Rethink The Lawyer’s Role In Dealmaking: Start By Facing Up To The New Realities by Robert A. Profusek and Lyle G. Ganske of Jones Day in Metropolitan Corporate Counsel, December 2007, makes several key points:
- “Many lawyers no longer add real value to dealmaking.”
- Lawyers do deals the way they always have while business has moved on: “merger papers for public company deals have become the intellectual equivalents of deeds in a real estate deal.”
- “[D]eal document creation has become a decidedly commoditized process.”
- Lawyers must re-think their roles in deals. Lawyers add value “in mobilizing and managing multidisciplinary risk assessment teams, not in shuffling reams of paper.”
- “We are spearheading an initiative to rethink deal documentation fundamentally, and we intend to invite other leading firms to join our effort.”
- “[W]e will completely deconstruct what it is we do. We will reevaluate how we should staff our deals, what expertise our firms really need, how we serve our clients, and how we bill for our services.”
I have written about several ideas that support re-thinking law practice:
- Document assembly and expert systems (online interactive advisory systems) to address commoditized elements of law practice
- Developing by empirical methods best practice guidelines for how law is practiced and deals are conducted.
- Business intelligence to help assess staffing models and alternative billing.
- Formal risk assessment using decision trees. Granted, I’ve only discussed that tool for litigation, but perhaps it or other quantitative techniques can be developed to understand, discuss, and perhaps even measure deal risk.
- Knowledge management to capture and re-use documents and to tap the appropriate expertise.
- Outsourcing to offshore lawyers routine, higher volume work such as due diligence and contract drafting and review.
The authors’ initiative “to dress the Emperor” includes other law firms. I hope they include the broader community of legal professionals who have thought long and hard about improving law practice. If this initiative does not succeed, does the profession go back to pretending the Emperor has clothes?