Today’s paralegals have more responsibilities in law firms and corporate offices than ever before as they are asked to perform many of the tasks previously done by lawyers.

The Dollars and Sense of Paralegal Utilization, Second Edition, is a vital resource that provides valuable tools for paralegals and lawyers who want to deliver more efficient, cost-effective legal services. This new edition includes descriptions of the newest corporate paralegal positions at DuPont, along with very detailed Task Guidelines  for paralegals in 18 practice areas.

Price: $50.00* plus shipping.

In this short video, he and others highlight many of the initiatives that are being undertaken by the Legal Department at DuPont and other organizations like the Minority Corporate Counsel Association (MCCA) to provide pathways into the legal profession for diverse young people.

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• applying business discipline to the practice of law,
• focusing resources and
• making strategic law firm partnering, information technology, metrics, diversity and other initiatives the cornerstones of that approach.

The DuPont Legal Model serves as a unifying framework that adjusts to change and new challenges. Through this model, DuPont has created a successful legal network of members with a common vision and unifying goal.

The 20-year history of the evolution of the DuPont Legal Model is told in this short retrospective video.

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Since 1992, the DuPont Legal Model has offered corporate law departments and the law firms that serve them a wide range of corporate law best practices.

By applying “business discipline” to the practice of corporate law, the Legal Model focuses resources and makes strategic law firm partnering, information technology, metrics, diversity and other initiatives the cornerstones of our approach.

The Legal Model also serves as a unifying framework that adjusts to change and new challenges. Through this model, we’ve created a successful legal network of members with a common vision and unifying goal.

The Legal Model helps:

Cut costs
Increase productivity
Improve the quality of our services
Create easier access to new opportunities
Solidify relationships among DuPont staff members, Primary Law Firms and Service Providers
Learn how the Legal Model can help your legal department or law firm become more successful. Here’s what you’ll find on our website:

• A comprehensive introduction to the Legal Model, “The New Reality: Turning Risk into Opportunity through the DuPont Legal Model.”
• More information on DuPont law firm partnering and the law firms and service providers with whom we work.
• Minority Job Fairs and other Diversity Initiatives.
• Information on Six Sigma, DuPont Legal’s Awards Programs, paralegal utilization, alternative fees and other initiatives.
• A library of recent articles on the Legal Model, its principles and processes.

Here’s a new resource for corporate legal departments looking for a better way to work with outside counsel — and conversely, those law firms that serve corporate clients, “The New Reality: Turning Risk into Opportunity through the DuPont Legal Model,” written and released by DuPont Legal. The 90-page book details the latest innovations of the renowned DuPont Legal Model, a partnering process that has increased efficiencies and saved the Company millions of dollars since its debut in 1992.

Price: $75.00* plus shipping.

How did you hear about this book?

The Corporate Counsel Technology Institute at Widener University School of Law is presenting the final webinar in the series that shares DuPont Legal’s 19 years of experiences in bringing business initiatives to the practice of law.

Lessons Learned:  Next Steps & Opportunities for Improvement -  Presented by Thomas L. Sager, DuPont Senior Vice President and General Counsel & Evelyn H. Brantley, DuPont Managing Counsel, Operations and Partnering.   They will share first hand observations on the ideas, methods and processes that have worked well for the DuPont Legal Model and what hasn’t worked.

The 75-minute webinar will begin with  a 30-minute presentation, 20-minutes of discussion, and the remaining time for open questions and answers and closing comments.

The cost for this final webinar is $79 each for an individual, or $159 each for an individual with a copy of the book. The cost for a group site is $149 or $229 for the webinar with one copy of the book. The cost to judges will be $50 for the webinar.

The webinar is designed for in-house counsel, outside counsel who work with corporate legal departments, corporate procurement personnel, judges and vendors that wish to learn more about strategic partnering. The webinar series , entitled “The New Reality: Turning Risk into Opportunity through the DuPont Legal Model,” is named after the recently published book with the same title.

Today’s paralegals have more responsibilities in law firms and corporate offices than ever before as they are asked to perform many of the tasks previously done by lawyers.

The Dollars and Sense of Paralegal Utilization, Second Edition, is a vital resource that provides valuable tools for paralegals and lawyers who want to deliver more efficient, cost-effective legal services. This new edition includes descriptions of the newest corporate paralegal positions at DuPont, along with very detailed Task Guidelines  for paralegals in 18 practice areas.

Price: $75.00* plus shipping.

Here’s a new resource for corporate legal departments looking for a better way to work with outside counsel — and conversely, those law firms that serve corporate clients, “The New Reality: Turning Risk into Opportunity through the DuPont Legal Model,” written and released by DuPont Legal. The 90-page book details the latest innovations of the renowned DuPont Legal Model, a partnering process that has increased efficiencies and saved the Company millions of dollars since its debut in 1992.

Price: $95.00* plus shipping.

How did you hear about this book?

The 2009 Corporate Leadership Award will be presented at a black tie dinner at Cipriani 42nd Street in New York City.  The event will draw approximately 500 attendees representing the top corporations, law firms, scholars, and public institutions in the country.  The funds raised by the Corporate Leadership Award Dinner support CPR Institute’s educational, research and public policy programs.  For more information about the Dinner or to reserve a table, visit www.cpradr.org.

Each year, the CPR Institute honors a corporation that has demonstrated leadership and commitment to the principles of conflict management and resolution and has institutionalized alternative dispute resolution principles into their corporate and industry culture. Previous honorees include Johnson & Johnson, General Electric, Ernst & Young, ConocoPhillips, and Microsoft.

As two of the founding members of the CPR Institute, DuPont and Pfizer have been pioneers in the corporate legal community’s commitment to conflict resolution practices and principles.  They have used alternative dispute resolution on a variety of litigation matters, as well as using preventive measures, and have been strong advocates for ADR use within their respective industries.

 “For their corporate leadership and commitment to principled conflict management and resolution, the CPR Institute is proud to honor DuPont and Pfizer,” said Kathleen A. Bryan, President and CEO of the CPR Institute.  “Under the superior leadership of Sager and Schulman, respectively, they have set a successful benchmark against which all companies’ legal departments should be measured.”

DuPont joined CPR in 1980 and was a leader in the use of the CPR Chemical Industry Dispute Resolution Commitment to consider ADR in intra-industry disputes. Notably, the DuPont Legal Model incorporates early case assessment and mediation as core strategies.  Mr. Sager currently serves as co-chair of CPR’s National Task Force on Diversity in ADR.  

A member of CPR since 1984, Pfizer has been a national ADR leader, spearheading initiatives resolving class actions with innovative settlements in the 1990’s, and, more recently, providing a forum for the National Task Force on Diversity in ADR to meet, develop, and advance its essential mission. A longstanding
- more -

champion of alternative dispute resolution, Ms. Schulman continues Pfizer’s dedication to the principles of ADR through her leadership. 

DuPont and Pfizer have been loyal sponsors of CPR’s public policy projects and its National Task Force on Diversity in ADR.  They have further demonstrated their leadership by sponsoring CPR’s international work in Europe and China. In 1984, both corporations signed CPR’s Corporate Policy Statement on Alternatives to Litigation^©. The “ADR Pledge” is a statement of policy aimed at encouraging greater use of flexible, creative and constructive approaches in resolving business-related disputes. It promotes systematic, early resolution and establishes a flexible framework for helping to resolve complex multi-party disputes

About DuPont
DuPont is a science-based products and services company. Founded in 1802, DuPont puts science to work by creating sustainable solutions essential to a better, safer, healthier life for people everywhere. Operating in more than 70 countries, DuPont offers a wide range of innovative products and services for markets including agriculture and food; building and construction; communications; and transportation. Learn more at www.dupont.com.

About Thomas Sager
Thomas Sager started his career with DuPont in August 1976 as an attorney in the labor and securities group. He helped pioneer the DuPont Convergence and Law Firm Partnering Program and continues to have oversight responsibility. Through his leadership, this program has become a benchmark in the industry and has received national acclaim for its innovative approach to the business of practicing law. He also was recently recognized as one of the 20 Most Influential General Counsel in America by The National Law Journal.

About Pfizer

At Pfizer, we apply science and our global resources to improve health and well-being at every stage of life.  We strive to set the standard for quality, safety and value in the discovery, development and manufacturing of medicines for people and animals.  Our diversified global health care portfolio includes human and animal biologic and small molecule medicines and vaccines, as well as nutritional products and many of the world’s best-known consumer products.  Every day, Pfizer colleagues work across developed and emerging markets to advance wellness, prevention, treatments and cures that challenge the most feared diseases of our time. Consistent with our responsibility as the world’s leading biopharmaceutical company, we also collaborate with health care providers, governments and local communities to support and expand access to reliable, affordable health care around the world.  For more than 150 years, Pfizer has worked to make a difference for all who rely on us.  To learn more about our commitments, please visit us at www.pfizer.com

About Amy Schulman
Amy W. Schulman leads Pfizer’s worldwide Legal Division and is responsible for a wide range of legal and regulatory areas, including intellectual property, litigation, regulatory law and compliance, global security, licensing and acquisitions. Before joining Pfizer in June 2008, Ms. Schulman was a partner at DLA Piper, an international business law firm, where she was a member of the firm’s Global Board and its Executive and Policy Committees. Ms. Schulman also was recognized as one of the 20 Most Influential General Counsel in America by The National Law Journal and was selected by Forbes magazine as one of The  World’s 100 Most Powerful Women in 2009.  

About the CPR Institute

As a think tank and educational not-for-profit organization, the CPR Institute provides thought leadership and innovation as the global resource for conflict management and resolution of complex business-related disputes.  Our wealth of intellectual property and published material has educated and motivated General Counsel and their law firms around the world toward an increased reliance on alternative forms of dispute resolution rather than litigation. CPR Institute’s membership is comprised of general counsel and senior lawyers of Fortune 1,000 organizations, partners in the top law firms around the world, as well as leading judges, government officials, neutrals, and academicians. Our proprietary panel of esteemed arbitrators and mediators has provided resolutions in thousands of cases, with billions of dollars at issue, worldwide. For more information, please visit www.cpradr.org.

WILMINGTON, Del., April 1, 2009 — DuPont Legal has added the law firm of Lewis, Rice & Fingersh, L.C. to its roster of Primary Law Firms (PLFs) – the network of outside law firms with which the Company has a strategic partnership.

In making the announcement, Andrew L. Schaeffer, DuPont Managing Counsel, Operations and Partnering, noted that Lewis, Rice & Fingersh already has been doing work for several DuPont affiliates and subsidiaries.  “We believe we can derive additional synergies with the firm by making them a PLF and including them in future work for other DuPont strategic business units and affiliates,” Schaeffer said.

Lewis, Rice & Fingersh is headquartered in St. Louis, Missouri, maintains three other offices in the St. Louis area, two offices in the Kansas City, Missouri area, an office in Jefferson City, Missouri and an office in Belleville, Illinois.  For representation in the DuPont network, Andrew Rothschild will be the engagement partner and C. David Goerisch will be the account manager. 

“Members of our firm have worked with DuPont’s Solae Joint Venture in St. Louis and with DuPont’s subsidiary, Pioneer,” said Andrew Rothschild. “We are eager to assist DuPont and its other PLFs meet the corporation’s business and litigation challenges. We look forward to being considered a trusted partner in the DuPont Legal Network.”

With the addition of Lewis, Rice and Fingersh, DuPont Legal now has 41 outside law firms and 10 service providers in its network.  For more information on the network, its members and initiatives, visit www.dupontlegalmodel.com

DuPont is a science-based products and services company.  Founded in 1802, DuPont puts science to work by creating sustainable solutions essential to a better, safer, healthier life for people everywhere.  Operating in more than 70 countries, DuPont offers a wide range of innovative products and services for markets including agriculture and food; building and construction; communications; and transportation.

Contacts:
DuPont	Crosby Marketing	Lewis, Rice & Fingersh, L.C.
Mary Kate Campbell	Diane Nowak-Waring	Sharon Callahan
302-773-1005	410-626-0805	314-444-7760
mary-kate.campbell-1@usa.dupont.com	dnowak-waring@crosbymarketing.com	scallahan@lewisrice.com

As Chief Intellectual Property Counsel, Mr. Walker has global responsibility for legal policy matters related to DuPont patents, trademarks and other intellectual property.  Mr. Walker began his legal career in 1986 at a private law firm in Philadelphia, Pennsylvania, and joined DuPont in October 1990.
He received a B.S. degree in Chemical Engineering from Drexel University and his J.D. degree from Notre Dame Law School.  He is registered to practice before the United States Patent and Trademark Office.  In addition to his serving as President of the ACPC, Mr. Walker is on the board of the Intellectual Property Owners organization and is a trustee of the American Intellectual Property Law Education Foundation.  He is active in the American Corporate Counsel Association and the American Intellectual Property Association.

The Association of Corporate Patent Counsel (ACPC) is a membership association of Chief Intellectual Property Counsel of businesses operating in the United States.  ACPC was created in 1966 to promote high quality legal services in the field of intellectual property including patents and related fields.  The Association strives to facilitate and promote the study of problems of general interest to corporations in such fields, to share best practices, and to facilitate and promote the study of problems relating to the management and administration of corporate intellectual property departments. For more information, visitACPCNET.ORG

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The editor of The Metropolitan Corporate Counsel interviewed Ernest Tuckett, a DuPont Corporate Counsel for Labor & Employment about his role in DuPont Legal’s diversity initiatives. Mr. Tuckett described the Minority Counsel Network (MCN), for which he is the Chair this year, and detailed the benefits for all the attorneys of color at DuPont and within DuPont’s Primary Law Firms that participate in the MCN. He also discussed DuPont Legal’s various pipeline programs.

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In this article in The Metropolitan Corporate Counsel, Vincent M. Catanzaro, Discovery Counsel and Litigation Support Manager for DuPont and Mary Ann Kim, Director of Legal Solutions at RR Donnelley discuss the outsourcing services provided by what was OfficeTiger and is now part of RR Donnelley Global Services.

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Ramona Romero is currently President of the HNBA for the 2008-2009 term. As President, Romero is helping guide the national, non-profit membership organization that represents the interests of the more than 100,000 attorneys, judges, law professors, legal assistant and law students of Hispanic descent in the U.S. and Puerto Rico. 

In her role as Corporate Counsel, Logistics and Energy at DuPont, Romero is responsible for legal oversight of the acquisition of transportation, distribution, supply chain management and energy resources. Romero has been an advocate for diversity in the legal profession and was named as one of the 100 Most Influential Hispanics in the U.S. by Hispanic Business Magazine in 2007. 

Román Hernández has been elected President-Elect of HNBA and will work with Romero as the HNBA collaborates with other organizations to further the representation and involvement of Hispanics in the legal profession. 

Hernández is a shareholder with the law firm of Schwabe, Williamson and Wyatt, and focuses his practice in the areas of employment law and business litigation. He has been involved in international business matters and has conducted cross-border contract negotiations for many clients. His firm has been a Primary Law Firm in the DuPont Legal Network since 1994. In 2005, Hernandez was selected by the HNBA as “Regional President of the Year” out of 19 regional presidents across the country. 

“Both Ramona and Román are committed and experienced leaders who are dedicated to advancing the interest of Hispanic legal professionals and the Latino community; DuPont is very pleased to not only support their efforts, but also to have their insight as part of our legal network,” said Thomas L. Sager, Senior Vice President and General Counsel for DuPont. 

DuPont Legal is the legal function for DuPont. DuPont is a science-based products and services company. Founded in 1802, DuPont puts science to work by creating sustainable solutions essential to a better, safer, healthier life for people everywhere. Operating in more than 70 countries, DuPont offers a wide range of 

innovative products and services for markets including agriculture and food; building and construction; communications; and transportation.

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In this article in GC Mid-Atlantic, Hinton Lucas, vice president and assistant general counsel at DuPont, discusses why diversity, inclusion and multicultural thinking within the legal department and its outside counsel will produce the best work product.

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DuPont Legal sponsors the annual conference and award ceremony in support of its Minority Counsel Network (MCN), a collaborative group of the attorneys of color from the company’s legal department and its network of 40 primary law firms (PLFs) and 10 legal service providers. The J. Michael Brown Award is given to a member of the MCN who has shown a professional and personal commitment to diversity within and outside of his or her firm or department, and who has contributed to the diversity goals of this Network.

This year’s award recipient, Lisa Gilford, serves on the boards of several diversity-focused organizations. An officer of the National Association of Women Lawyers (NAWL), Gilford has successfully recruited other women attorneys of color to the NAWL executive board and helped institute award and mentoring programs to promote diversity within the organization– the oldest women’s bar association in the country. Gilford was recently named NAWL president-elect and will serve as its president starting in July 2009.

Gilford also serves on the Board of StepUP Women’s Network, a philanthropic organization that provides health, education and professional resources for women and girls in Los Angeles’ poorest neighborhoods. For the past three years, Gilford has volunteered and raised funds to sponsor college tours and esteem building activities for teen girls, professional development for young women, and cervical cancer awareness programs. She has also helped diversify the organization’s board by recruiting women of color to join and serve on committees.

Within the legal profession, Gilford participates on the Women’s Rainmaker Roundtable, which focuses on increasing referrals to diverse attorneys, and she is active in the Black Women Lawyer’s Association, the Langston Bar Association, Women Lawyers of Los Angeles, and the Los Angeles Urban League. Since joining the Weston Benshoof firm, she has organized and facilitated the DuPont minority job fair for the western region and has become a key member of both the DuPont Minority Counsel Network and DuPont’s Women Lawyers Network.

“Lisa is very deserving of this recognition,” said Deborah Yoon Jones, a partner in the Weston Benshoof firm. “Lisa has served as coordinator for our firm’s women’s initiative, Women of Weston, and actively mentors younger attorneys. She makes every effort to increase the recruitment of other minority lawyers to the firm. She works directly with women associates on her cases, and because of her leadership, her teams consist of the best and brightest diverse attorneys in our firm.”

“Lisa’s personal and professional commitment to advocating for women and minorities within the community, and at her own law firm, is exemplary,” said Thomas A. Warnock, DuPont Senior Counsel and 2008 Chair of the MCN. “Her role as a key partner in the DuPont Minority Counsel Network is helping us achieve our mission to advance DuPont, the DuPont Legal Model, the members of the MCN, and the legal profession.”

For more information on the DuPont Minority Counsel Network or the J. Michael Brown Award, visit the DuPont Legal website, www.dupontlegalmodel.com.

In an interview with Workforce Management, Andy Schaeffer, DuPont legal’s managing counsel, operations and partnering, along with other corporate legal leaders, discuss their departments’ commitment to and initiatives for increasing inclusion and diversity within the legal profession.

Appeal for Diversity (7/18/08)

Law Students Seek Diversity at Legal Firms (7/18/08)

Steering Minorities Toward Patent Law (7/18/08)

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NAWL gives this award to a company’s legal department that has demonstrated a major commitment, through policies and practices to advance women and minorities within the department and by aligning its outside law firms with values of diversity. DuPont Legal was chosen to receive this year’s award because it is seen as a trailblazer in this regard, evidenced by a myriad of programs, benchmarking, enforced standards and metrics that the department conducts.

“The Board at NAWL is extremely impressed with DuPont Legal’s advances in its initiatives for women and minorities,” said Holly English, NAWL President 2007-08. “We believe that DuPont Legal represents cutting-edge best practices with respect to the advancement of women and minorities.”

“DuPont Legal is very pleased to be recognized by NAWL,” said Stacey J. Mobley, Senior VP, Chief Administrative Officer and GC for DuPont. “Our department’s diversity initiatives are guided by The DuPont Company’s core value of ‘Respect for People’ and are successful because of the dedication and hard work of many people within the department and in the outside law firms and suppliers that adhere to the principles of the DuPont Legal Model.”

The DuPont Company is a science-based products and services company. Founded in 1802, DuPont puts science to work by creating sustainable solutions essential to a better, safer, healthier life for people everywhere. Operating in more than 70 countries, DuPont offers a wide range of innovative products and services for markets including agriculture and food; building and construction; communications; and transportation.

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In this article in The Metropolitan Corporate Counsel, DuPont’s Senior Vice President, General Counsel and Chief Administrative Officer, Stacey Mobley, outlines why Delaware’s legal, business and lifestyle attributes make it the country’s first state for corporations.

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Since 2002, the Minority Counsel Conference has highlighted the selection of the recipient of the J. Michael Brown Award. The award has five criteria in which the recipient must excel: personal public commitment; inspiring others to join the profession; recruiting and mentoring; participation in the minority counsel network; and professional and personal recognition. This year’s recipient was: Tina L. Harris, original Director of Strategic Diversity Initiatives, at Shook Hardy and Bacon. She was selected for not only excelling in each category, but for enthusiastically embodying each element to its fullest. 

Tina was the founding member of Shook Hardy’s Diversity Committee and has galvanized that firm’s commitment into a results-oriented program that focuses on three main areas: recruitment, retention/engagement, and promotion of attorneys of diverse backgrounds. Within Shook Hardy she initiated and implemented: Diversity Dialogues for each incoming associate class; mandatory diversity training for ALL attorneys; and a Diversity Checklist-50 activities that partners must complete throughout the year following the diversity training. The checklists are posted on the firm’s intranet. She has instituted a Diversity Lecture Series – covering such topics as Diversity on the Bench; Holocaust Remembrance; Sexual Orientation in the Workplace; and Generational Diversity; as well as Firm Diversity Summit for clients – a day-long program focused on diversity in the profession. 
In the legal community she has championed the ABA’s Judicial Opportunity Internship and Minority Supplier Program; conducted a diversity training program for the Wichita, Kansas Bar Association, which kicked off an association initiative designed to attract lawyers with racially and ethnically diverse backgrounds to Wichita, and has moderated a roundtable discussion on “Diversity in the Legal Profession.” Participants included approximately 40 Kansas City area law firm managing partners and diversity partners, regional law school deans, and leadership from the Kansas City Bar Association. Truly her personal and very public commitment to diversity is evident.

With 100% attendance at the Minority Counsel Conference since its inception, Tina has always provided the same amount of dedication to the perpetuation of the Minority Counsel Network as evidenced by her lead role in the creation of the MCN Diversity Toolkit. 

She is also the recipient of the annual KCMBA President’s Award and has contributed to the Shook Hardy’s receipt of: Minority Corporate Counsel Association’s Thomas L. Sager Award – twice; and the Jackson County (Missouri) Pyramid of Diversity Award for excellence in recruiting, retaining and promoting attorneys of color in the Kansas City metro area. Her Diversity Checklist was recently recognized as the “Best Idea” of day two at the highly respected Kanter/Meyers “Race in Large Law Firms” Opus II program. 

On behalf of the MCN, we congratulate Tina and welcome her to the elite group of J. Michael Brown Award winners.

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Laura H. Huggett, Corporate Counsel at DuPont and current Chair of the DWLN, presented the award to Culley. Huggett said, “Mary personifies the true intent of the Themis Award by combining her focus on women’s issues in her work, her personal interests and her support of the DWLN.”

At her firm, Culley concentrates on estate planning, estate and trust administration and related tax matters for Delaware and Pennsylvania clients and trust and estate litigation. She also devotes a significant portion of her practice to planning for individuals with disabilities, guardianship and conservatorship proceedings and elder law. Culley is a member of the Delaware, Pennsylvania and American Bar Associations, as well as the National Academy of Elder Law Attorneys. She also chairs the firm’s Pro Bono Committee.

In addition to her dedication to women’s issues in her professional life, Culley also gives of her time to her community. Just two examples of her community activities focused on women’s issues include her service to the Girl Scouts of the Chesapeake Bay Council as a member of the Board of Directors and as one of the Founders and member of the Advisory Committee of the Fund for Women, which raises funds and awards grants to nonprofit organizations that address critical needs of women and girls in Delaware.

“At Morris James, Mary has actively encouraged female attorneys and served formally as a mentor to encourage them to cultivate habits that will lead to success,” said Lewis Lazarus, partner at Morris James. “She takes a very active role in associate reviews within the firm to ensure a positive and bias-free environment. “

Amy Cuthrell Hudson, an associate at Morris James who has been mentored by Culley said, “Mary has helped and encouraged me to develop my practice as a tax, estates and trusts attorney. She has provided me with a fair and honest view of what it takes to succeed as a woman in the profession of law, particularly with respect to our area of practice and as a woman with a family. She has been an invaluable mentor, resource and friend to me during my career at Morris James.

The Themis Award, established in 2002, is named for the goddess of justice in Greek mythology. It is presented annually to recognize a woman in the Network who embodies the mission of the DWLN, which is to positively impact the business of DuPont by promoting legal excellence through the success, development and professional advancement of the women lawyers representing DuPont. The DWLN is comprised of the women attorneys from DuPont Legal and its Primary Law Firms and women leaders from its Legal Service Providers.

To learn more about the DuPont Womens Lawyers Network click here

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Ms. Romero has been with DuPont Legal for six years. Prior to her current assignment, she managed complex commercial and antitrust litigation and DuPont Legal’s Diverse Supplier Program, which identifies and retains law firms owned by minorities and women to represent DuPont. She also chaired Legal’s Minority Counsel Conference and Network, an affiliation of lawyers of color at DuPont and at the majority-owned firms that represent the Company.

Before joining DuPont, Ms. Romero practiced at a law firm for ten years. There, she represented companies facing criminal investigations, civil fraud litigation, and complex commercial and antitrust actions. She received her J.D. from Harvard Law School and her B.A. from Barnard College, Columbia University. Active in civic and professional organizations, Ms. Romero serves on the boards of directors of the Hispanic National Bar Association and of the American Red Cross of the Delmarva Peninsula.

Click here to view a photo of Romona E. Romero.

“The DuPont Legal Model takes a business-focused and results-oriented approach to law, thereby helping law firms and corporate law departments improve the quality, cost and efficiency of their legal services,” said chief editor of the book Thomas L. Sager, Esq., Vice President and Assistant General Counsel of DuPont Legal. Stacey J. Mobley, Senior Vice President, General Counsel and Chief Administrative Officer of DuPont Legal, wrote the introduction.

“The Model was created in the early ‘90s and guided us through a period of tremendous change,” said Sager. “And, as new challenges have tested the Model, we have refined it, particularly to respond to the advances of technology and the emergence of the global economy.”

The book provides the latest examples of successful partnering methods that can be applied to any legal department or firm. It is divided into 14 chapters and covers a wide range of topics, including:

• An overview of the DuPont Legal Model
• The benefits of strategic partnering
• Efficiencies realized from using information technology
• Using early case assessment to determine strategic direction
• Negotiating alternative fee arrangements
• The rewards of having a diverse legal team
• Maximizing paralegal talent
• Establishing metrics to measure success

The book is an updated and expanded edition of a 2001 version called “Leaps & Bounds: Moving Ahead with the DuPont Legal Model.” Copies of the new book, which contains full-color charts and graphs, are available for $75. To order a copy go to the Product Catalogue pages of this site, or for more information call Diane Nowak-Waring at (410) 626-0805.

Click here to download the article.

“The DuPont Legal Model takes a business-focused and results-oriented approach to law, thereby helping law firms and corporate law departments improve the quality, cost and efficiency of their legal services,” said chief editor of the book Thomas L. Sager, Esq., Vice President and Assistant General Counsel of DuPont Legal. Stacey J. Mobley, Senior Vice President, General Counsel and Chief Administrative Officer of DuPont Legal, wrote the introduction.

“The Model was created in the early ‘90s and guided us through a period of tremendous change,” said Sager. “And, as new challenges have tested the Model, we have refined it, particularly to respond to the advances of technology and the emergence of the global economy.”

The book provides the latest examples of successful partnering methods that can be applied to any legal department or firm. It is divided into 14 chapters and covers a wide range of topics, including:

• An overview of the DuPont Legal Model
• The benefits of strategic partnering
• Efficiencies realized from using information technology
• Using early case assessment to determine strategic direction
• Negotiating alternative fee arrangements
• The rewards of having a diverse legal team
• Maximizing paralegal talent
• Establishing metrics to measure success

The book is an updated and expanded edition of a 2001 version called “Leaps & Bounds: Moving Ahead with the DuPont Legal Model.” Copies of the new book, which contains full-color charts and graphs, are available for $75. To order a copy go to the Product Catalogue pages of this site, or for more information call Diane Nowak-Waring at (410) 626-0805.

Click here to download the article.

Laura H. Huggett, Corporate Counsel at DuPont and current Chair of the DWLN, presented the award to Stone. Huggett said, “Jackie really stood out this year as the recipient of this year’s Themis Award. For years, she has been actively involved in leadership roles in the DuPont Women Lawyers’ Network and has continually proven to be an inspiration to women in her firm.”

At her firm, Stone concentrates on general business matters on behalf of corporate clients, legislative matters before the Virginia General Assembly, and regulatory issues before state and federal agencies. She also advises corporate clients on a wide range of immigration matters.

Stone currently chairs McGuireWoods’ Recruiting Committee where she has worked to recruit some outstanding women lawyers to her firm. She also serves as the firmwide hiring partner and sits on the McGuireWoods’ Board of Directors. Stone helps mentor young women within the firm, encouraging them to take on leadership roles.

“At McGuireWoods, we are particularly proud of Jackie’s efforts to encourage not only women, but people of all colors to enter and thrive in the legal profession,” said Robert L. Burrus, Jr., Chairman at McGuireWoods. “Jackie has worked hard to challenge the status quo in the legal profession and create opportunities for lawyers, regardless of gender or race, to grow into highly compensated, leadership roles.”

The Themis Award, established in 2002, is named for the goddess of justice in Greek mythology. It is presented annually to recognize a woman in the Network who embodies the mission of the DWLN, which is to positively impact the business of DuPont by promoting legal excellence through the success, development and professional advancement of the women lawyers representing DuPont. Previous recipients have been Lisa Passante, Corporate Counsel at DuPont, Dara D. Mann, partner at the firm of Faegre & Benson LLP in Minnesota and Lois H. Goodman, partner at the firm of McElroy Deutsch Mulvaney & Carpenter LLP in New Jersey.

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While many large U.S. corporations stress a commitment to diversity, these goals sometimes take a back seat to financial considerations during economic challenges. But for DuPont, which began implementing diversity initiatives in the 1970s, the need to cut costs and achieve diversity was not mutually exclusive. 

In the 10 years since, DuPont was challenged to shed more than $1 billion in operating costs, DuPont Legal has achieved high-quality, reduced-cost legal services from firms that represent the company’s global reach. This new, streamlined way of doing business became known as the DuPont Legal Model, and it has had a positive impact on the recruitment, hiring, and retention of minorities and women by DuPont’s legal department and its primary law firms (PLFs). Today, it is a model for every corporate law department committed to a diverse workforce. 

Building a Diverse Workforce 
Effecting change in terms of diversity first takes a commitment by legal department management. So how could DuPont Legal, with few women and attorneys of color in senior level positions, conceivably make significant changes? This dilemma was the challenge that faced Thomas Sager, vice president and assistant general counsel. While not a minority, Sager has a vision for achieving diversity in the workplace. “Diversity shouldn’t be just a minority-owned issue,” says Sager. “To be effective, it has to be important to everyone. And that’s a philosophy that has been stressed for years within DuPont.”

Partners for Change
DuPont Legal’s objective, however, was aimed well beyond boosting diversity within its own ranks. It was a broader mission to build a team of PLFs with people from many cultures and backgrounds. Championed by Sager, this new legal model consisted of a significantly smaller team of some 40 outside law firms and service providers that promote diversity in their own organizations. Historically, “DuPont Legal viewed this commitment to diversity as not just a fair hiring practice, but as a means to become increasingly effective and successful in the legal arena,” says Stacey J. Mobely, senior vice president, general counsel and chief administrative officer. To bring this tea together, DuPont focused on educating its PLFs of the reality that juries, customers and policy-makers impacting DuPont were of increasingly diverse backgrounds. In doing so, DuPont Legal made its position clear: Diversity is more than the right thing to do. It is a business imperative. 

“If the judges, juries, and politicians we face, the clients we serve, and business contacts we interface with are becoming increasingly diverse, then clearly our legal team should be as well,” says Sager. “And besides that, diversity generates better and more creative thinking. With varying perspectives brought to the table, better bottom-line results are achieved. ”

But how do you convince 40 law firms and service providers? Many of these firms were already committed to diversity at various levels. That’s why they were chosen to be part of the network. The firms that did not have diversity initiatives in place were eager to comply because of the importance of the DuPont account. 

Instead of simply pushing PLFs to meet mandates and quotas, DuPont wanted these firms to take ownership of creative solutions to improve diversity in the workplace. The person currently responsible for helping PLFs meet their diversity goals is Julie Mazza, the first woman to be manager of law firm partnering. 

“Just as knowledge-sharing has worked to reduce redundancy and inefficiencies in the legal model, sharing ideas with regard to diversity helps primary law firms create a more balanced workforce,” says Mazza. “And as a personal goal of mine, I continuously am looking for opportunities to involve women and minority attorneys in DuPont matters.”

All PLFs were asked to prepare a diversity plan, outlining action plans and goals. Recognizing that opportunities for diversity can vary according to geographic areas, the PLF action plans were geared toward establishing and maintaining efforts to achieve a diverse staff.

“The law firms that work with DuPont must be true believers and take action,” says Charisse R. Lillie, partner, Ballard Spahr Andrews & Ingersoll, LLP. “Our firm has had a long-standing commitment to diversity, but the directive from DuPont has given us an extra push.”

Creating an Environment for Diversity
Through the years, DuPont’s legal department has sponsored many job fairs, as well as networking and professional development events to begin to change the face of its own workplace and that of its providers. DuPont Legal also established two networks to further its mission of diversity: the DuPont Women Lawyers Network and the DuPont Minority Counsel Network. Both organizations allow women and minority lawyers at DuPont Legal and its PLFs to come together to network, market, mentor, and advance their careers. 

Dara D. Mann, an associate with Faegre & Benson, LLP, is on the core team of the Women Lawyers Network, and is one of five women attorneys from her firm who attend the Women Lawyers Network Conferences. “As a young attorney,” she explains, “these annual conferences offer great opportunities for women lawyers to network with others who are facing similar issues and challenges. They teach you about mentoring, excelling in your current position, and achieving career goals.”

The Minority Counsel Network offers similar opportunities for the exchange of ideas among minorities in the PLF network. “Through its annual Minority Counsel Conference, DuPont Legal brings together all the minority lawyers in the firms and at DuPont—to share knowledge, network, and build commitment to work effectively and efficiently for their clients,” says Dennis Archer, chairman, Dickinson Wright PPLC, who is also the former mayor of Detroit.

Both networks and their conferences are important to Sandra L. Phillips, partner, Shook, Hardy & Bacon, L.L.P. “They have empowered me. We use what we learn at both conferences about networking and rainmaking. And we go back to our firms better than how we came,” she said.

DuPont’s PLFs are also actively pursuing networking opportunities that support a diverse workforce, specifically in the area of minority recruitment. All PLFs were encouraged to attend DuPont’s first Minority Job Fair in 1994, where minority students were given the opportunity to be interviewed on-site for summer internships and full-time positions. Over the years, this annual fair has grown to a multi-city event, with more than 500 resumes received for fairs in Wilmington, Del.; Chicago; Los Angeles; and Houston.

Ballard Spahr Andrews & Ingersoll, LLP is one of the firms recognized for its leadership in these job fairs. Members of this firm help organize and coordinate these fairs across the country, and, for their efforts, were given a DuPont Challenge Award, a monetary award for fulfilling principles of the DuPont Legal Model. According to firm partner Mark Stewart, the fairs his firm produces all have a seminar component to them with presentations or panel discussions. “This way, students have people who they can talk to, and they walk away feeling that they can actually get a job.” And many do. Stewart says that his firm alone hires one or two students every year as a result of these job fairs.

Measuring the Results
Tracking the improvements made by a diversity program is a complex process. What began as an informal questioning of PLFs on diversity practices has evolved into a detailed self-critical analysis of progress made on this front. In 1996, the “benchmark survey” was introduced as an element of a complete metrics program to evaluate the success of the legal model as a whole.

The benchmark survey evaluates performance in six key areas, including diversity. This annual survey requires PLFs to report on the number of women and minorities working on DuPont cases. It also addresses how many women and minorities are in decision-making positions with regard to DuPont casework, as well as hold senior-level positions in the firm.

As the surveys show, the efforts by DuPont Legal and its PLFs have made a significant impact on diversity in the network. The PLFs, many of which would be viewed as competitors in the real world, have banded together to help each other and their common client achieve goals for diversity. As an example, 10 years ago, only 15 percent of the law firm leadership representatives to the network were women or minorities. Today, women and minorities make up 39 percent of the leadership representatives.

“While these numbers are pleasing to see, they don’t reflect how PLFs are reaching out to women and minorities in new and different ways,” says Sager. “When you look at the creativity that these firms are using to improve diversity in the network, it is quite impressive,” Sager continues. Sager also cites the job fairs, internships, sponsorships of various law school receptions, pipeline initiatives and scholarship programs as examples as to how the PLFs are trying to increase diversity. 

“So far, we have given scholarships to 400 minority students. And, we are actively involved in mentoring programs for children from elementary school through high school, and we sponsor co-op programs with our clients to help minority students get funding as well as work experience while they go to school. This type of outreach has really made a difference in our firm and in the community,” says Gardner Courson, a partner at McGuire Woods.

Over the past 10 years, the number of minority attorneys working at DuPont Legal has grown from 10 to 21. In the past three years, of the 22 lawyers hired at DuPont, 8 were women, and 5 were minorities, a total of 58 percent. Perhaps the most visible change at DuPont Legal occurred at the top. In 1999, Stacey Mobley was appointed to senior vice president, chief administrative officer and general counsel. This appointment was a strong affirmation of the opportunities available to minorities at every level of the organization.

“I’m living proof that talent worth nurturing exists not just in the Ivy League schools, but also in historically black colleges and universities, such as Howard University, ” Mobley says. And when asked about his legal department’s efforts to boost diversity, he adds, “I am proud of what our company has accomplished, and I am proud of the people in our company. I am particularly proud of my colleague Tom Sager, who has played a key role in our diversity effort.” Sager’s commitment to diversity, as Mobley points out, has been recognized by many organizations—including MCCA, which named its annual awards for diversity achievement after Sager. 

Spanning over 30 years, Mobley’s career at DuPont includes management responsibility for staff services such as legal, governmental affairs and public affairs, and company operations in Mexico. He also has responsibility for the strategic direction and operations of all the company’s businesses.

Mapping the Future of Diversity
DuPont Legal and its PLFs face two challenges in the future: retaining minority lawyers and attracting young minorities to the profession. It appeared that progress was made in attracting minorities to entry-level positions; however, success in keeping talented minorities and in providing meaningful career paths seemed elusive. Further, given the lack of a sustained effort by some firms who were new to this effort, there was simply a lack of role models for these young lawyers to emulate. As a result, many minority attorneys left the PLFs in search of other opportunities. 

This trend began to surface a few years ago in the benchmark surveys. To address these concerns, DuPont Legal is now working with its PLFs to develop more programs that encourage personal growth and career advancement. “It’s important to have mentors within the firms to help women and minorities develop their careers,” says Sager. “It’s also critical that they are able to identify with their firm and its leaders—that there is a diverse group of professionals at all levels of the organization. When critical mass is achieved, retention results.” 

Another issue threatening the future of diversity in the profession is the lack of students in high school and below with an interest in the law. Simply stated, law firms cannot hire minority attorneys if minority students are not going to law school. To help remedy this problem, DuPont Legal created a “pipeline committee” and educational kit. The committee has developed programs to reach children as early as elementary school, to assist with placing them on the right track to get into college. The goal is to interest minority children by exposing them to positive role models in the legal profession, and to provide them with the tools they need to help them succeed in college. 

Currently, DuPont Legal attorneys are coaching a team of children from a predominantly-minority high school in the Delaware State Mock Trial competition. DuPont is also working with Kingswood Community Services to teach computer skills to an after-school class of minority middle-school children. 

“The pipeline program is going wonderfully,” says Hinton Lucas, associate general counsel, DuPont Legal, who is spearheading the program. “We are exposing these kids to various activities within the legal field, such as mock trials and debates. We let them see what paralegals do versus what attorneys do.”

In addition to the efforts at DuPont Legal, the PLFs are also participating in pipeline programs. Collectively, the best practices of DuPont Legal, the PLFs and other organizations have been published in a DuPont-sponsored “Pipeline Kit” that is being distributed by the American Corporate Counsel Association to help other corporate law departments and firms initiate their own pipeline programs. 

By setting an example for other corporations and law firms, DuPont Legal hopes to make a favorable impact not only upon the lives of many young, talented minorities, but also on the legal profession itself, which will only benefit from a far more diverse bench and bar.

Ralph Crosby heads up an award-winning integrated marketing communications firm in Annapolis, Maryland, that provides advertising, public relations, interactive development and graphic design services, and is a primary service provider to DuPont Legal.

Sidebar One
DuPont Women Lawyers Network 

At the first Annual Conference on Women and the Practice of Law for DuPont in 1998, participants asked for a network that would help women advance their careers within the DuPont Legal Model. The DuPont Women Lawyers Network was born.
Today, the network has myriad objectives, such as creating growth and leadership opportunities for women lawyers, assisting women working for PLFs in business development, and increasing the visibility of the women in the network. The group is also committed to eliminating bias by creating equal opportunities for leadership positions, access to clients, assignments and training. Since women attorneys often have unique issues, the network seeks to educate lawyers about communication differences, ensure credit for ideas and objective criteria for evaluation, and inspire women to challenge the status quo. 

For additional information on the DuPont Women Lawyers Network, contact Tamera Fair, Senior Counsel at 302-892-7948 or tamera.l.fair@usa.dupont.com

Sidebar Two
The DuPont Legal Minority Counsel Network

Founded in 1997, the DuPont Legal Minority Counsel Network is a collaborative, cohesive body of attorneys of color. These members share the mission of advancing DuPont, the DuPont Legal Model, the members of the network, and the profession. 

The network works to build relationships between attorneys of color, to promote each other as professional resources, to enhance each other’s experience, to support promotions and generally empower network members. By working together, the network proves the value of a diverse legal team, increases profitability, fosters positive workplace environments, supports minority recruitment and mentoring, and ensures a critical mass of attorneys of color.

Over the past four years, network members have convened for the DuPont-Primary Law Firm Minority Counsel Conference in Wilmington, Delaware, headquarters of E.I. du Pont de Nemours and Company, or in a home city of one of its primary law firms. In late June 2002, the network met at the Hotel duPont in Wilmington, Del., to commemorate its fifth anniversary. 

For additional information on the DuPont Minority Counsel Network, contact Chyrrea Sebree, Senior Counsel, at 302-992-3407 or chyrrea.j.sebree@usa.dupont.com

Crosby, Ralph. “A Decade of Diversity: The Dupont Legal Model.” Diversity & the Bar, Vol. 4, No.3, September 2002.

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Ten years ago there was little formal guidance for how inside and outside trial lawyers might proceed when faced with impending litigation. In 1992, that changed when the DuPont Legal Model was designed and implemented throughout the United States. The Model imposed an obligation on in-house and outside counsel to develop clear methods and procedures to save time and money on DuPont lawsuits, while maintaining or improving the quality of legal services. Both inside and outside counsel were closely monitored as they sought to meet these obligations.

Seeking to further improve the cost and quality of its litigation efforts, in 1994, DuPont’s in-house litigation function—with significant support from Thomas L. Sager, vice president and general counsel for litigation—began to emphasize a litigation-management process known as early case assessment. ECA methodology has been a cornerstone of DuPont’s success in reducing its docket, its legal defense budget and in reaching faster and better resolution of lawsuits. 

“The key to successful litigation management is increased business discipline applied to legal matters,” Sager explains. “As the Six Sigma study shows, ECA is a lynchpin to that business discipline.”

ECA in a Nutshell 
Within 120 days of the first defensive pleading, ECA requires outside trial counsel, DuPont in-house counsel and the designated DuPont business representative to produce a detailed analysis of the lawsuit. The details and procedures needed to meet the Model’s express guidelines have evolved over the past decade and have forced both DuPont corporate lawyers and outside trial counsel to rethink how to handle the first segment of defending a lawsuit. It has taken enormous effort on all sides, but the positive results have been recently confirmed by an independent study using the Six Sigma quality initiative at DuPont, which was verified by the national accounting firm of Deloitte & Touche. The result? The DuPont cases where ECA was rigorously followed resulted in higher satisfaction from the business unit, faster cycle times and an average of 28 percent less cost.

The Deloitte study analyzed 18 litigated labor-and-employment cases to determine two things. First, it studied the correlation, if any, between the quality of the early case assessment and the quality of the results. The second focus was the potential savings to DuPont when defects in the early case assessment process were eliminated. The elements used to measure ECA quality included whether the assessment was timely and comprehensive; whether the strategy and the budget were expressed; and whether the whole process was well documented. The quality of litigation results was determined on the basis of client satisfaction, the size of outside counsel fees, the case cycle time, and the size of the plaintiff payout.

By carefully quantifying the elements and assigning point values to the client ratings, the Deloitte study found that high ECA quality generally resulted in lower indemnity/plaintiff payouts and higher client satisfaction. On top of that, the potential savings in outside counsel fees in the 18 cases were dramatic: $852,802—more than a third of the total fees of $2.3 million. Over the seven years covered by the study, the average potential annual savings came to $121,829.

The Stakeholders 
ECA is applied to a variety of cases, including litigation of employment, intellectual property, commercial, personal injury and toxic torts, but the stakeholders are the same: the business client, the in-house counsel and the outside trial lawyer. The fourth and fifth stakeholders, whose expectations must be understood and managed, are the plaintiff and his or her lawyer. 

For all of these stakeholders, the tension points are basic: money, time and control of litigation. As the Six Sigma analysis confirms, using the ECA process on a consistent basis results in a more involved and happier business client. In addition, it lowers the cost of litigation, both in terms of legal fees expended and resolutions reached. Finally, the business and the in-house legal staff spend less time away from the proper focus of growing DuPont’s business.

In the Beginning…
At the outset, the tools and methodology to achieve this change barely existed. There was enormous pressure. Some missteps and floundering occurred. There was a good deal of pushback, both inside and outside, to this novel but structured approach. 

During this early period, many brainstorming and “what if we do things this way. . .” conversations occurred. One of DuPont’s outside lawyers, who handled a large volume of employment litigation, developed a work-process flowchart that essentially mapped the required steps needed to accomplish a case assessment quickly and efficiently. The ECA workflow chart for employment litigation provides a clear, systematic 21-step process to guide the inside and outside lawyers for each individual plaintiff’s lawsuit (log on to www.lawexec.com to review this flowchart).

ECA Workflow Process Map
This process has been refined over time at DuPont, during practice group working sessions and at the Atlanta Knowledge Management conference in 1997. From the service of the complaint through the decision to litigate or settle the matter, the workflow process chart poses questions that must be answered and suggests decisions that must be made within the 120-day time frame. The issues include essential items such as Freedom of Information Act queries, the need for local counsel, analysis of local rules and venue, information from the plaintiff’s medical records and background, strategies for handling the depositions, and the need for possible other services, from databases to private investigators. It concludes by analyzing the client’s vulnerability and the potential for success, should the litigation proceed to trial. Time management is implicit in this structured process, but the judgment of experienced lawyers is the backbone of the ECA analysis.

Why is ECA a Good Idea?
“Time and money have always been the standard measures for any company evaluating the impact of defending litigation, regardless of the type of lawsuit or the jurisdiction where the case is filed,” Sager says. “What we have accomplished at DuPont, with the help of our partnering law firms, is a focus on a business approach to evaluating our lawsuits early and often.

“The results, as established through the recent Six Sigma analysis, are very impressive. Eighteen employment caseswere analyzed under the scrutiny of Six Sigma. Those that followed the ECA process faithfully resulted in a 28 percent savings to DuPont in total transaction costs and a much more satisfied business client as a result.”

Like most corporations with a large litigation dockets, DuPont was concerned about how much time lawsuits took away from managers who were responsible for growing DuPont’s business. It was also concerned about how much money it was spending on outside lawyers who tried cases and in-house counsel who managed large dockets of litigation.

As the Six Sigma study conducted by Deloitte & Touche established, using the methodology and discipline of ECA reduces business managers’ time away from their business goals, improves the corporate perception of the value of the law department and decreases the total cost of defending litigation per case. Among the various items captured in the ECA process are those actions, tasks, procedures and customs that drive litigation costs. 

ECA focuses on such items as cycle time, paper touches, whether the lowest cost, most capable person is handling the task (paralegals versus young associates, for instance) and whether a case is being given the proper attention by a first-chair trial lawyer. 

Another ECA requirement is that the trial lawyer responsible for the case, as opposed to less experienced members of a defense team, must articulate a theme to the jury early on, before discovery commences. This, of course, requires all evidence to be assessed and evaluated around a jury theme, central to the ability of the company to convince a jury that the plaintiff has not been wronged. 

An unspoken advantage of the Early Case Assessment, according to Sager, is cases, which have been properly assessed with ECA methodology, usually have lower discovery costs, since only pertinent documents and evidence are collected and analyzed. In other words, when you have a plan to build a house before you drive the nails, the house goes up faster, at less cost, and the end result is likely to be close to the blueprint you developed. When the ECA process comes together, the best talent focuses on the most relevant information. The usual result is better decisions by all involved, made in less time and at a lower cost.

Holding managers accountable at DuPont is a long-cherished business tradition. Following the establishment of the DuPont Primary Law Firm Network, DuPont in-house counsel and their law firm counterparts are being held accountable in a way in which they can truly contribute to the success of the process without sacrificing their professional judgment and sense of accomplishment. 

Gardner G. Courson is a partner at McGuire Woods LLP.
gcourson@lawexec.com

Thomas L. Sager is vice president and associate general counsel of E.I. duPont de Nemours & Company.
tsager@lawexec.com

Courson, Gardner and Sager, Thomas. “Metrics for Success in DuPont’s Legal Risk Analysis.” Chief Legal Officer, Vol. 1, No. 3, Summer 2002, p. 29-31.

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July 1, 2002 — Stacey J. Mobley, DuPont Senior Vice President, General Counsel and Chief Administrative Officer is the July 2002 recipient of the Distinguished Legal Services Award, sponsored by LexisNexis™ and Corporate Legal Times magazine. This award is given in recognition of outstanding legal performance and services in corporate America. A panel of editors selects the award recipients from peer nominations.

In making the selection, the editors commented, “Mobley has been an outspoken advocate and critical to the ongoing success of the famed DuPont Legal Model that has simultaneously increased efficiency within DuPont while helping shape the face of corporate law around the world.”

Mobley responded, “This Legal Services Award is a salute to all in our Network who have had a hand in the Legal Model’s development and play a role in its continuing evolution.”

To find out more about the Distinguished Legal Services Award and Stacey Mobley’s recognition for the award visit the Corporate Legal Times Web site atwww.cltmag.com.

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At DuPont alone, this new way of doing business has helped save more than $50 million in the last ten years. And it has trimmed the number of primary law firms and service providers from more than 350 to 48.

Now celebrating its 10th anniversary, the DuPont Legal Model has its own Web site, with thousands of visitors from all over the world learning how to provide high-quality, economical legal services. At the heart of the Legal Model are five core elements:

Strategic partnering—These relationships with outside counsel and service providers free inside counsel from micro-management so they can focus on strategic decision-making.

Early case assessment—By applying basic business principles, this cost/benefit analysis helps reduce risk, cycle time and costs of litigation.

Use of technology—With knowledge management, inside and outside counsel work in a virtual law firm environment that fosters communication, collaboration and coordination—while eliminating redundancies and duplication of databases.

Alternative fee arrangements—Innovative billing structures focus on value for the client, incentives for outside law firms and an equitable allocation of risks and rewards between the two.

Strategic budgeting—This fluid system of budgeting focuses on value and cost of litigation, identifying deviations, making adjustments and forecasting the cost-outcomes.

Under the leadership of Thomas L. Sager, Vice President & Assistant General Counsel, the Legal Model continues to evolve with an ongoing commitment to incorporating diversity within the legal field. Sager is also spearheading other innovative practices, like Six Sigma, a quality improvement program that uses statistical methodologies to reduce costs and improve process. And with the implementation of Proactive and Preventive Legal CareSM, the Legal Model now has a program in place to help capture opportunities, anticipate and avoid risks, and utilize best practices for managing current liabilities in the most cost-effective manner.

“The uniqueness of the DuPont Legal Model lies in its inherent capacity to instill a spirit of continuous improvement, which drives every in-house and network professional to find better, more efficient and cost-effective ways of delivering legal services to the company,” says Stacey J. Mobley, Senior Vice President, General Counsel and Chief Administrative Officer. He also attributes much of the Legal Model’s success to the fact that it adheres to the core values of the corporation: people, ethics, innovation, safety, health and the environment.

To learn more about the DuPont Legal Model, visitwww.dupontlegalmodel.com. Copies of “Leaps & Bounds,” a book that explains the Legal Model, may also be ordered from the Web site.

About DuPont
During 2002, DuPont is celebrating its 200th year of scientific achievement and innovation – providing products and services that improve the lives of people everywhere. Based in Wilmington, Del., DuPont delivers science-based solutions for markets that make a difference in people’s lives in food and nutrition; health care; apparel; home and construction; electronics; and transportation. For information on DuPont, log on to www.dupont.com.

In 1996 DuPont Legal formalized the rewards and incentives process by implementing the “Challenge Awards” — monetary awards that recognize Primary Law Firms (PLFs) and Service Providers for extraordinary contributions and accomplishments that have advanced the objectives of the DuPont Legal Model.

Over the years, PLFs and Service Providers have received Challenge Awards for a variety of accomplishments, including:

• Diligently and successfully pursuing DuPont’s legal rights as a plaintiff;
• Collaborating with other PLFs and Service Providers;
• Volunteering time and resources to develop and maintain core programs of the Legal Model;
• Referring non-DuPont matters to other PLFs and Service Providers; and
• Incorporating technology into the practice of law.

In 2001, we gave out 18 Challenge Awards — 17 to PLFs and one to a Service Provider. But perhaps best of all, five awards were given to first-time winners — proof that the spirit of continuous improvement is spreading throughout the DuPont Legal Network. Below are the Challenge Award winners for 2001.

2001 Abbott, Simses, Knister & Kuchler Archer & Greiner, P.C. Bartlit Beck Herman Palenchar & Scott Clifford Chance Rogers & Wells LLP Crowell & Moring LLP Dickinson Wright P.L.L.C. Fasken Martineau DuMoulin Hornblower, Manning & Ward Kelly Law Registry Kirkpatrick & Lockhart McGuire Woods Battle & Boothe Mehaffy & Weber Morris James Hitchens & Williams Murtha, Cullina Richter & Pinney Potter Anderson & Corroon LLP Shook Hardy & Bacon Spilman, Thomas & Battle, PLLC Squire, Sanders & Dempsey

Special Projects & Events

Primary Law Firms & Suppliers

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BTI interviewed more than 185 individual top corporate counsel at Fortune 1000 companies; from their responses, 93 individual attorneys were identified as All Star performers. The DuPont Primary Law Firms listed among the BTI Client Service All Stars are:

Faegre & Benson, LLP (2 BTI Client Service All Stars)
Lightfoot, Franklin & White, LLC
McGuireWoods LLP
Squire Sanders & Dempsey
Wildman Harrold Allen & Dixon (2 BTI Client Service All Stars)

Additionally, Faegre & Benson and Squire Sanders were identified as BTI Client Service All Star MVPs, for having delivered superior client service for two years in a row. For a complimentary copy of the full report, log on tohttp://www.bticonsulting.com/allstar_frame.htm.

In selecting the members of the Client Service A-Team,BTI asked General Counsel clients to rank the performance of more than 200 law firms based on the activities that drive their law firm relationships. Firms that made it into the BTI Client Service 30 — the BTI Client Service A-Team — were identified as performing two-to-eight times better than other law firms. The DuPont Primary Law Firms on the BTI Client Service A-Team are:

Faegre & Benson, LLP
McGuireWoods LLP
Squire Sanders & Dempsey

For a complete list, log on tohttp://www.bticonsulting.com/publications_frame.htm.

A number of other DuPont Primary Law Firms received “honorable mentions” in the report, noted for their considerable strengths in customer service but not included in the elite “BTI Client Service 30.”

]]> http://www.dupontlegalmodel.com/dupont-primary-law-firms-and-lawyers-rank-high-on-bti-client-service-surveys/feed/ 0 http://www.dupontlegalmodel.com/creating-from-competitive-law-firms-a-supportive-client-oriented-team-that-collaboratively-pursues-diversity-goals-%e2%80%93-part-i/ http://www.dupontlegalmodel.com/creating-from-competitive-law-firms-a-supportive-client-oriented-team-that-collaboratively-pursues-diversity-goals-%e2%80%93-part-i/#comments Wed, 06 Feb 2002 19:10:43 +0000 diane http://dupont.crosbydev.com/?p=550 The Editor interviews Tom Sager, Vice President and Assistant General Counsel, DuPont.

Editor: We spoke last year about DuPont Legal’s pipeline initiative to interest high school students, particularly minority students, in the legal profession as a career. Have there been any further developments?

Sager: The pipeline initiative was borne of the realization that the number of the minorities applying to law schools has dropped. The percentage of members of various bars around the country who are minority is very small.

DuPont Legal wanted to address not only the number of minorities and women who represent DuPont and hold significant leadership roles within law firms; we also wanted to provide a better and stronger pipeline of new minority attorneys.

We worked to develop a pipeline kit containing basic instructions for starting a similar initiative. We then developed an alliance with the American Corporate Counsel Association (ACCA). We expect that ACCA will share the toolkit with the law departments, large and small, of its members. We hope the toolkit will motivate corporate legal departments around the country, that might be sitting on the fence, to initiate similar pipeline efforts.

We provided the kit to ACCA which in turn, to its credit, has promoted the kit at its annual meetings and over its website. I believe ACCA has distributed more than one hundred kits to legal departments around the country. As part of our commitment to ACCA and those law departments, we are available to speak with members of those departments around the country who are trying to emulate our pipeline efforts by using the toolkit.

In addition to developing the toolkit, we initiated efforts within the Wilmington community to prime the pipeline. Our efforts are in three areas.

First, DuPont in-house lawyers are coaching and counseling high school mock court teams. One such team is from Howard High School, a predominantly black, inner-city high school. They were able to field a team again (after a period of inactivity) because of the support of two of our attorneys. Another team is from The Charter School, which was also supported by a DuPont attorney.

The second initiative is the Louis Redding Foundation at the University of Delaware. The establishment of that foundation recognizes Louis Redding, the first black admitted to the Delaware bar. He was active in the Supreme Court cases called Brown v. Board of Education, which outlawed school segregation. That foundation runs programs in which high school students with an interest in the law can gain exposure to corporate and private firm and public legal offices, such as the state attorney general’s office. We work with them and talk about the practice of law and about our own experiences, in the hope that we can stimulate their interest in the legal profession and their confidence in their ability to go to college and beyond.

The third effort is with the Boys and Girls Club. We have focused our efforts locally on the Wilmington Boys and Girls Club. We help children in the seventh and eighth grades by exposing them to people in the legal profession, not necessarily lawyers. The lawyers help them with their reading and writing skills and their ability to communicate. They also work with the students to build their computer skills. We hope not only to get them interested in the profession, but also to build their confidence that they can succeed. These efforts should improve their confidence.

We also work with the Delaware Law-Related Education Center, a non-profit chaired by Delaware Attorney General Jane Brady. With that organization, we try to instill respect for the Constitution and create interest in the legal profession. The Center underwrites the high school mock court competitions. Through our funding, it provides tutorial help to kids in the Ferris School for Boys, a detention center. We hope this will help those boys to turn their lives around.

These are anecdotal, project-specific successes, but they illustrate that DuPont Legal’s initiatives are multi-faceted. We are active and involved in a variety of diversity-related efforts.

Editor: DuPont has been urging law firms to increase the number of women and minorities within their ranks. What is the current status of those efforts?

Sager: The effort is ongoing at a fairly high level. It started with our vision. When we selected the primary law firms (PLFs), we tried to articulate how we wanted to work with them differently in four respects: the attorney/client relationship, fees, technology and minorities and women.

Next, we explored how to make that vision meaningful. We explained to the PLFs what we expected of them in terms of hiring and retaining people. We asked them to critique themselves in a benchmark survey.

In terms of hiring minority lawyers, most of the PLFs that need more lawyers have been very aggressive. They try to do the right thing. They attend the DuPont minority job fairs. They go to regional minority job fairs. They use word of mouth. They are trying to reach out in ways that they had not before, such as supporting events that promote minorities in the profession. They have underwritten receptions at various law schools that showcase their law firms. They have funded scholarships for law students, such as at Rutgers in New Jersey and elsewhere.

The PLFs are beginning to do things that will distinguish them in the minds of minority youth. In West Virginia the PLF is writing to minority students who have been accepted to law school, before the students even practiced one day or have gone to law school, to get them to visit the firm and to expose them to the practice of law. Many of them are trying to think of creative ways to get a jump on the competition for minority law students and to excel among their law firm competition. That competitive spirit has triggered the greatest advances.

The PLFs are also calling on us to help in those efforts beyond the job fairs. For instance, I will call, write a note or speak with someone who is being recruited by one of our firms. These communications may make that candidate more disposed to join one of our firms.

DuPont’s PLFs are doing reasonably well at attracting minority candidates. Where they have less success is in the area of retention, which I think is true for the profession generally. After three to four years, minorities tend to leave the firms for another job or profession. No one seems able to come to grips with that. We have tried to address this problem in DuPont Legal with some success, but I do know that is an ongoing problem in law firms. I think the keys will be role models, a supportive environment and opportunities to lead and to have client interface. I believe that the PLFs are trying, but it is tough.

We encourage the PLFs to use minority lawyers on our matters. Due to the strength of DuPont’s relationships with the PLFs, they are very responsive to our desire that they provide minority lawyers opportunities to play leadership roles in handling our matters. We do not hesitate to ask them why we have not had more women or minorities assigned to our matters, particularly in leadership roles. Our concerns are generally well-received by the firms.

We are seeing incremental gains in this area. Women and minorities are being assigned leadership roles, primarily as account managers and engagement partners. They often play important roles in deals or in litigation. The firms are very aware of our desire to have these folks engaged in our work. We are not sitting in judgement of the firms, but we work with them to improve the situation.

To further support the firms’ efforts, we underwrite and actively support two networks: the Minority Counsel Network and the Women’s Network. Each allows talented young people from the PLFs to exchange ideas, identify career challenges and bounce creative approaches off one another. They candidly discuss subjects that they may not have the confidence to raise within their firms. They also can refer business to each other.

Like most companies, the lawyers at DuPont are trying hard to do the right thing, but we face an increasingly difficult environment. We are trying to make money, avoid major lawsuits as best we can and be seen as good corporate citizens. State attorneys general are more active, cities and local governments are more demanding and the trial bar is joining hands with them in some instances. We created an advisory group of very senior, very accomplished African American lawyers around the country that serves us as a sounding board for issues confronting DuPont. What better way to get a perspective different from the one to which you are accustomed than to continually reach out to people beyond your customary circle who, due to their different backgrounds and insights, are uniquely positioned to provide that?

Editor: DuPont’s PLF network is about to achieve a significant milestone — its tenth anniversary.

Sager: Yes, and it is very exciting. The strong relationships that we have developed with the PLFs will prove very useful to us in reaching our goals in terms of cost control and other issues. We are proud of the accomplishments of the PLFs in all respects and particularly in respect of diversity. Of the PLFs, I would say that Dickinson Wright has really distinguished itself in that regard among our network of law firms. Dennis Archer, the former Mayor of Detroit, has rejoined that firm as chairman, which is a very significant development.

[Editor’s note: an interview of Mr. Archer will appear in Part II of this Special Report.]

I believe that, out of necessity, corporate legal departments eventually will reach the same point that we have. Most senior corporate managers are not enamored of the legal system. Many feel that the civil justice system is hard to understand and costly and time-consuming. They seek attorneys who can not only navigate its complexities, but who reflect the increasing diversity of our society.

We are working to achieve that understanding among the law firms. We have thirty-nine PLFs and nine legal service suppliers in the network. The big news is that we have added our first minority owned law firm in San Antonio.

Our biggest achievement in respect of the PLF network is that we have managed to get forty-nine organizations to work with us in unison and to actively collaborate in the best interests of DuPont. Some do it better than others, but they are all making an effort and their performance has steadily improved.

Driver, Al “Creating From Competitive Law Firms A Supportive, Client-Oriented Team That Collaboratively Pursues Diversity Goals – Part I.” The Metropolitan Corporate Counsel, February 2002, pp. 29-33.

“I noticed Shell was the only company that was soliciting resumes,” she says. “I was one of the few students who was already contemplating going in-house out of law school, if I could. I have a B.A. in economics and I’ve always been interested in business. I thought it would be ideal to practice law in a business environment.”

She jumped at the chance to see what a legal department was all about. She liked the work, and the people, and came back again after her second year. As it turned out, her ideal stood up to reality quite well.

“After the clerkship I thought, ‘This is the type of career that I want,’” she says. “As a law school student, your conception is that your only options are to work for a firm or the government. One hardly thinks you can work for a corporation when you get out.”

Not many can. Most legal departments follow convention and hire lawyers after they have worked at law firms for three or four years. But a handful of corporations, such as Houston-based Shell Oil Co., recruit newly minted lawyers straight out of law school.

It’s a given that most law school graduates know next to nothing about the day-to-day practice of law. The majority of companies are content to let law firms take on, and pay for, the training of new attorneys. There is a certain poetry to the process, especially for the fee-wary corporate counsel. But for some companies, hiring lawyers out of school makes more sense. It requires more commitment and training, but ultimately pays dividends in retention and job satisfaction.

Shell swears by the practice. It worked out for Maung-she was hired upon graduation three years ago-and it’s worked for scores more, including the company’s general counsel.

An In-House Clerkship

“I interviewed both with law firms and corporations, and received offers from both,” says Catherine Lamboley, Shell’s vice president, general counsel and corporate secretary.

“Ultimately, I decided I wanted to go in-house because I did not want to be a rainmaker. I knew I didn’t want to be a litigator and that I wanted to do a business practice. I went to work for Shell because the law firms I interviewed with told me Shell had a good reputation for their in-house counsel. I thought that was a very good recommendation.”

It certainly turned out to be. She joined Shell in 1979, and over the next two decades rose to the company’s highest ranks.

Lamboley, like Maung, is a product of Shell’s recruiting program. About half of the company’s 70 attorneys were hired out of school. Associate General Counsel Sue Jean White runs the program today.

“I’m not sure anybody knows how we started, or why we started,” says White. “It predates me. But starting in the fall of 2000, we re-examined our recruiting process. We looked at the success factor of people who have come to Shell and how many people are still here. We have retained those people, and they are our best and brightest.

“You can’t argue with success, and it’s been a very successful way to have good, competent lawyers who want to stay with the company.”

Shell’s recruiting system functions much like a law firm summer associate program. The company recruits at law schools across the South, holding interviews and informational meetings. Shell takes on six to 10 clerks per year and makes offers to about half of them to come on board after graduation.

Most clerks come for one summer after their second year, but a few start after their first.

“When people come for two summers we really get to know them, they get to know us and we’re really pleased with the results,” says White.

“We try to be pretty formal about it. We have rotations through different departments. We try to have a mix of written assignments, an oral presentation. It’s a good time for them to understand our business, what we do and the diversity we have in our practice.”

And vice versa. A clerkship is the only time in an attorney’s career that a job interview lasts for a matter of months. The company never again has the opportunity for such insight into a candidate’s ability, potential and personality.

Have It Your Way

“At Aetna we did a lot of hiring out of law school,” says Jack Campbell. “In fact, we did a majority of our hiring out of law school. We had a large legal department. Therefore, we had an infrastructure that enabled us to bring in new lawyers, train them and develop them. We preferred to develop our own lawyers rather than inherit someone else’s training and bad habits.”

Campbell himself joined Aetna Inc. out of law school in 1972, rising to division general counsel before leaving the company in 1997.

Today he is a partner at Epstein Becker & Green in Washington, D.C., where he serves as outside general counsel to Coventry Health Care Inc.

“At the time I began my career in the early 1970s, joining a law firm meant signing onto an apprenticeship that was very structured. It started off with very low levels of responsibility and stepped up over a four- to 10-year period. I wanted immediate client contact. I wanted responsibility right away.”

Campbell says companies are in a better position to train new lawyers than they may believe.

“Historically, at least, corporations have been better equipped to train their personnel than law firms were. Corporations have human resources departments that focus primarily on training and development.”

On this point it seems that large companies and large departments have an advantage. With more attorneys, more practice areas and more work, the large department has the resources to accommodate less-experienced attorneys. If a company has that luxury, it can train the lawyer in its image.

“Hiring from law school, you’re in a far better position to mold, if you will, and develop lawyers as you’d like them to function,” says Thomas L. Sager, vice president and assistant general counsel of E.I. du Pont de Nemours and Co. in Wilmington, Del.

“Whereas when you get laterals, sometimes they’re fairly fixed in their ways, and you’re not able to glean that from an interview. That can lead to conflicts on issues from hierarchical views to firm and definitive approaches to litigation management, which are tough to break or redefine.

“Sometimes that most attractive candidate has been out there for five, six, seven, eight years and might be very much locked into a certain way of practicing.”

Sager graduated from Wake Forest University School of Law in 1976 and immediately joined DuPont’s legal department. DuPont hired out of law school from the mid-1970s to the mid-1980s.

“The impetus to keep the program alive was primarily for diversity, and our ability to attract and retain talented minorities out of law school,” says Sager. “Now we’re able to find some pretty attractive candidates who have practiced in firms.”

Still, he had mixed feelings about closing the avenue by which he entered the company, and his experience bears out the high retention rate of law school hires.

“In my case, DuPont hired a class of six. Three of us are left. I suppose that’s a pretty good rate of retention. That was 25 years ago.”

The Road Less Traveled

Although career paths that lead directly from law school to a corporate legal department remain uncommon, they are perhaps more viable than ever. As norms such as the traditional education schedule break down, students bring more varied experience and expectations to law school.

“People today don’t go directly from college to law school as they used to,” says Campbell.

“They may go work for a couple of years, perhaps as a paralegal or to get some other related experience. If you’re interested in healthcare law, you may go through a joint degree program. You may work for an HMO or a hospital. You get practical, on-the-ground experience. Then you go to law school and get your professional degree-somewhat akin to what MBA candidates have been doing for a long time.”

That kind of experience has law students more interested in corporate practice than ever before. In years past, beginning a career in a law department would have foreclosed other options for the young lawyer. But that’s no longer the case.

“People are going back and forth now more frequently between corporate practice and the private firm,” says Sager. “In the past it was all one way, from the private to the corporate. Today people who have gotten their stripes here or elsewhere can find employment with major firms.”

With just as many career options as most young law firm lawyers and a challenging but not overwhelming work life, Maung says her experience at Shell stacks up more than favorably to that of her contemporaries.

“I’m the only person I know from my class who hasn’t moved once yet. I’m the only one who hasn’t changed jobs in the last three years,” she says.

“In terms of the opportunities for growth and quality of work, I’ve found that even though I’m a very junior attorney I get a lot of responsibility. Leadership here is very interested in developing talent, and when I talk to my friends, they don’t feel the same way.”

Andersen, Steven “New Blood: The Case for Hiring From Law Schools.” Corporate Legal Times, January 2002, p. 1.

Age: 55

Organization: Founded in 1802, Wilmington Del.-based E.I. du Pont de Nemours & Co. is a Fortune 500 global science company with 94,000 employees worldwide, and in 1999 had revenues of $26.9 billion and a net income of $7.7 billion. Operating in some 70 counties, with exports from the United States at about $3.9 billion, the company is one of the largest U.S. exporters. Last year, DuPont expanded its biotechnology arm by completing a cash and stock acquisition of Iowa-based Pioneer Hi-Bred International Inc., the world’s largest seed company. Others of its well-known brands include Teflon resins, Lycra spandex, Stainmaster stain-resistant carpet, and Mylar polyester films. 

Rise To The Top: Nearly all of Mr. Mobley’s career has been at DuPont. After earning his B.S. in pharmacy at Howard University, Mr. Mobley stayed another three years to complete law school. Upon graduation in 1971, he took a fellowship working for a legal service organization as a community lawyer in his hometown, Chester, Pa. When his fellowship ended, he joined DuPont, a company where he knew he could meld his dual interest in pharmaceuticals and corporate law. 

Mr. Mobley spent his first four years as a commercial lawyer in Wilmington in the company’s biochemical department; then he left for Washington D.C., when he took an interest in governmental affairs. He was a DuPont lobbyist there for 10 years, working on amendments to the Federal Insecticide Fungicide and Rodenticide Act, the law that governs the sale manufacture and regulation of pesticides. In 1983 he became head of the D.C. office, which by then had spun off from legal to external affairs. So when he returned to Wilmington in 1992, it was as senior vice president of external affairs. Mr. Mobley succeeded Howard Rudge as general counsel in January. But because of his circuitous route to the top legal post, he maintains duties in governmental and public affairs, as well as regional responsibilities for DuPont’s operations in Mexico and South America. 

Legal Department: Mr. Mobley says that the only way he can handle DuPont’s legal affairs is to rely on three vice presidents and deputy general counsel: Roger W. Arrington, who handles intellectual property; Vernon R. Rice, in charge of commercial law; and Thomas L. Sager, who oversees litigation. Below them are the five associate general counsel who work directly with the company’s business units. In its entirety, the legal department consists of 124 attorney and 55 legal assistants in the United States, with another 100 lawyers mainly in Geneva; London; Brussels; Tokyo; Hong Kong; Singapore; Sao Paulo, Brazil; Mexico City; and suburban Toronto. “My value add is the strategic piece in really making legal align with the business direction of the company in general,” Mr. Mobley says of his role. As a member of the management committee, he says he is in the position to make sure legal helps the business end plant a good foundation for the future. 

“DuPont is really seeking sustainable growth,” he says. “Our corporate thrust is to really reduce our footprint but get more value out of the offerings that we have. Consistent with that, I think intellectual property is going to be a more dominant component of business going forward. I think it’s our responsibility along with the technical folks in the company to make certain our intellectual property fate is adequately protected in that we execute our intellectual property estate in a fashion that enhances shareholder value.” As for the commercial end, he says, “I think it’s important for our lawyers to be on the forefront of the electronic commerce area by partnering with the business folks to help them accomplish their goals and make the company succeed.” 

Litigation: In an average month, DuPont’s docket is saddled with some 1,800 claims. From a strategic standpoint, the volume is what concerns Mr. Mobley the most. And while DuPont’s “burden of litigation,” particularly in the products liability arena, may no longer be different from that of other companies, he says he is seeing a “disturbing trend” involving asbestos litigation.

“We’ve seen this thing go in waves where the product manufacturers have all but been exhausted,” he says, speaking specifically about Owens Corning’s recent bankruptcy filling. “Now the tactic is to really go for premises claims, and every manufacturer, irrespective of what business they’re in, is really subject to claims that basically say these workers were exposed to asbestos in your workplace even though they worked for somebody else,” he says. “So we’ve seen an increase in litigation there…and that’s going to be a burden as we go forward.”

Mr. Mobley recognizes that just being named as a defendant in such litigation increases costs for DuPont as its in-house counsel, primarily Mr. Sager along with outside counsel, analyze and defend each action, and determine whether to settle the matter. “It’s just a distraction,” Mr. Mobley says, adding that Mr. Sager is “looking at this with our primary law firm network to see how to get ahead of this and find a way to protect DuPont.”

Outside Counsel: DuPont has a well-recognized network of outside counsel, which the company has reduced from about 350 law firms and legal-services suppliers to about 35 primary U.S. law firms; three law firms based in Canada, Mexico and the United Kingdom; and seven primary service providers, which handle court reporting, document management, jury research, copying, temporary staffing and accounting consulting. DuPont maintains this network at reduced rates, but almost exclusively goes to in-network counsel for legal work. So the company saves money on legal services while the law firms pick up more work from DuPont. The only reason DuPont would step outside would be to tap into a legal specialty not available in the network. Some of the major firms in the network include Philadelphia’s Ballard Spahr Andrews & Ingersoll and Palo Alto, Calif.’s Gary Cary Ware & Freidenrich. The network, begun in the early 1990′s, “provides us with extended resources that we don’t have to duplicate in house,” Mr. Mobley says. 

Pet Peeve: Mr. Mobley’s comments about outside counsel relate to his early days in the legal department, pre-network, when he says outside counsel often failed to understand what the company needed to reach its goals. That isn’t much of a problem with DuPont’s network, because the outside lawyers are familiar with DuPont and are more invested in keeping abreast of the company’s business as well as legal matters. “I feel our folks really want to know about our business,” he says. And while he sees how continually educating high-dollar outside counsel can be a problem for other GCs, he says, the lawyers at DuPont “don’t have that trouble with its network.”

Hobbies: Mr. Mobley enjoys listening to his favorite jazz CDs, playing golf and, when he has time, driving his Porsche.

Family: Mr. Mobley and his wife, Joan C. Thompson, a pathologist, have a daughter, Michele, 21.

Last Book Read: Business on Trial: The Civil Jury and Corporate Responsibility by Valerie P. Hans

McDonough, Molly. “Better litigating through a network.” The National Law Journal, December 25, 2000-January 1, 2001 p. 2-3.

The virtual law firm connects lawyers electronically and culturally. Through the use of applied technology, such as extranets, integrated case management software, computerized databases, electronic invoicing software, document imaging, cell phones, personal digital assistants, and trial presentation software, team members in different geographical locations can perform legal work efficiently and cost-effectively in a shared environment. But this technology still depends on the human element and on the willingness of committed participants to implement and use it constructively in furtherance of an articulated vision and clear goals. In a virtual law firm, participants must share a common culture. 

This article discusses how DuPont’s law department is using technology to create a virtual law firm, by fostering collaboration among its in-house staff, its outside law firms, and its service providers. Although the intricacies of technology are key to this endeavor, we will focus here on the soft-and, for the most part, unstudied and often ignored-side of technology. We will look at how companies can use technology to increase coordination, teamwork, and, ultimately, collaboration by independent firms in support of their common client. We will offer a roadmap for corporate counsel who would like to travel this path and describe the factors that in our experience have driven greater collaboration among corporate law departments and their outside firms. 

Although DuPont designed its virtual law firm to meet the needs of a Fortune 500 corporation, the principles employed apply with equal force to smaller companies, and the processes we describe are highly scalable. 

The DuPont Primary Law Firm Network

Since the early 1990s, DuPont Legal has moved vigorously forward to create a network of law firms and service providers to assist in-house counsel in meeting the company’s legal service needs. A wide-area computer network facilitates work processes among the firms and providers through instantaneous communication of information, document-sharing, and database access. 

Over the years, the DuPont law firms and service providers have formed a virtual law firm from which they can build collaborative work teams to deploy on cases or legal projects. The DuPont Primary Law Firm Network (“Network”) is not a partnership. Each member of the Network is a separate entity that performs its own work independently for its clients and is solely responsible for the quality of its work. No Network member represents that it relies on any other member in performing its legal work or any other services. No Network member accepts legal responsibility for any other Network member’s work. In this article, we use the terms “partner,” “partnering,” “network,” and “virtual law firm” to convey an attitude and approach among DuPont’s law department and the members of its law firms and source providers: specifically, a desire to work together and be competitive. 

The Goal: Creating a Virtual Law Firm

Why did DuPont Legal create a virtual law firm? What is the payoff? We believe that significant competitive advantages flow to a company that can build a team consisting of inside counsel and members of outside law firms and various service providers, such as accountants, jury consultants, and document management specialists, who have the skill sets required by a legal matter and who are capable of working smoothly and effectively together. Such a team would be dedicated to the company’s interests and knowledgeable about the company’s business and case-handling processes. Through shared technology, members of such a team could easily communicate. 

The building of collaborative work teams, integral to the virtual law firm, stems from an understanding that the type of expertise required to handle complex litigation and commercial transactions often comes in several forms: (1) context expertise or knowledge of the local jurisdiction, law, and personalities of the participants, (2) substantive law expertise or knowledge of the field of law involved in the matter, and (3) technical expertise or knowledge of the particular technology or subject matter involved in the matter (see fig. 1, Dimensions of Expertise). The law department’s objective in addressing complex legal problems is to build a team that places the company as far out on this three-axis system as possible. 

Put another way, a team that scores high in context, substantive law, and technical expertise is more likely to gain a winning result for the company, all other things being equal. 

But all other things are seldom equal. A number of significant barriers exist to building teams that consist of members from different firms. Interfirm competition can lead to sharp elbows among team members and can detract from team performance. Lack of communication about client goals or group objectives can lead to a lack of focus and can reduce team effectiveness. Team members may resist sharing intellectual capital gathered in other cases, such as research and forms, with other team members whom they view as competitors. Incompatible technology, such as different word processing and database management software, can also pose a barrier to the sharing of work product. 

And these items are just the short list. Even the most highly qualified team of experts will produce less than optimal results if the individuals do not function collaboratively. 

Evolution: Winning through Collaboration

After DuPont had begun its convergence program, it rapidly built an initial network of law firms and service providers. The Network now consists of 37 U.S. law firms, three foreign law firms, and eight service providers.3 The DuPont program placed a premium on collaboration and teamwork. The inside counsel is no longer a gatekeeper between the business client and outside counsel. Inside and outside counsel receive rewards for their collaborative efforts, and task duplication does not occur in most cases. How did DuPont get started? 

Building the Network

In 1992, DuPont announced a program to cut more than $1 billion in operating costs. For its contribution, DuPont Legal launched a campaign to achieve high-quality legal services at reduced costs. A legal department team conducted an analysis of escalating expenses and developed strategies and approaches based on established business techniques to accomplish the objectives of the program. The team made litigation the initial focus of a new DuPont Legal Model and established objectives to reduce costs, to increase productivity, and to inject business discipline into its delivery of legal services. 

The team next critically examined work processes. DuPont Legal was spending time researching every legal issue, finding, analyzing, and indexing every potentially relevant document, and taking every conceivable deposition. It was conducting thorough preparation in the interest of risk avoidance, treating every lawsuit as though it were a bet-your-company case. 

To address this problem, DuPont Legal instituted several initiatives designed to streamline work processes so that only appropriate and necessary work was done. These initiatives, which included a disciplined early case assessment program, a strategic budgeting process, alternative billing under which DuPont shared risks and rewards with its outside firms, and, more recently, the implementation of Six Sigma discipline,4 provided a strategic or systems approach to certain types of legal work. 

The legal department team then began the task of selecting Primary Law Firms (“PLFs”) and service providers. A convergence process lasting three and a half years had already significantly reduced the number of outside law firms and suppliers with which DuPont Legal did business. The DuPont Legal Model, therefore, established its new network of PLFs and service providers based on true partnering relationships, not on the old client-vendor paradigm. Each side made a long-term commitment to the relationship, sharing a common vision and goals and enjoying mutual benefits. 

The team also evaluated DuPont’s use of services, such as document management, photocopying, court reporting, temporary lawyers and legal assistants, financial analysis, management consulting, jury research, and demonstrative evidence. In the past, DuPont’s outside law firms had directly retained many of the providers of these services, leading to a highly varied level of quality and cost-effectiveness. By centralizing the retention of key service providers and forging strategic relationships with them, the team sought to achieve the same goals of efficiency and quality that it hoped to attain with the PLFs. 

In the end, the convergence process reduced the number of DuPont’s outside law firms in the United States from more than 350 to 37. In addition, it selected eight service providers as strategic partners. Later, it added three foreign law firms (in the United Kingdom, Canada, and Mexico) to bring to 40 the total number of PLFs. By virtue of its design, the convergence process provided the foundation to solidify relationships among the PLFs, the suppliers, and DuPont Legal.5 

Employing Technology

The potential of technology to advance the overriding goals of the DuPont Legal Model was clear from the outset. In fact, use of the latest technology became a core element of the DuPont Legal Model, along with strategic partnering, early case assessment, alternative fee arrangements, and strategic budgeting. The law department team used these elements to create (1) a business focus on DuPont’s legal issues, (2) an ongoing work-process reengineering, (3) a commitment to cutting-edge technology, and (4) a shared culture of efficiency and cost control. 

Without the benefit of sophisticated technology, neither the concept of the virtual law firm nor the DuPont Legal Model could exist. Described below are the general types of technology systems used by DuPont Legal and its PLF Network to further their collaborative efforts. As you will see, these tools allow for both synchronous, such as videoconferencing, and asynchronous, such as discussion forums and email, interactions among team members. Although DuPont Legal also employs other technologies, these are the key components. Much of this technology is readily available, affordable, and easily tailored to law departments of any size or type (see sidebar for collaboration tools and services). 

The DuPont Legal Knowledge Base 

DuPont Legal and its PLFs invested heavily in a proprietary system known as the Knowledge Base (“KB”) to improve information sharing. Built on a Lotus Notes platform, the KB is a collection of proprietary collaborative databases that form a wide-area network linked by dedicated servers at each user’s location. It facilitates access to documents and forms, discussion forums, and email. Boiled down to basics, the KB acts like a private website with areas allowing access to email, collections of documents, form files, company information, and discussion areas. 

The KB enabled a high degree of connectivity among Network members, improving the speed, frequency, and ease of communication, and encouraging members to share their intellectual capital with the Network. It quickly became an integral component of the DuPont Legal Model and is today an essential vehicle for advancing DuPont Legal’s goals for strategic partnering by facilitating collaboration among DuPont Legal and its PLFs and service providers. The KB gave the Network a central digital depository for case-related documents, useful pleadings and forms, helpful information about Network members and DuPont’s business, and an easy means of communication with other Network members. 

Subsequent to its implementation, DuPont took steps to further the KB’s full potential as a driver of collaboration. The system architecture once used a fractional T1 line backbone,6 but now operates on an extranet virtual private network. (See next section, “Virtual Private Network Technology.”) DuPont also implemented a new case management and billing system and collaborated with Network members on solving other problems that a task force had identified. 

After the KB had been in use for some time, DuPont found that team members were not using, contributing to, or frequenting some features of the system, such as form files, a discussion forum, and a bulletin board listing cost-saving ideas, as much as they should. DuPont and the PLFs addressed this shortfall by taking steps to make the KB more user friendly and content rich. PLFs should now be able to mine form files of previous work they have performed for the company and paste them in Lotus Notes-based databases for reuse. 

The DuPont Network is currently assessing technology solutions that will link and make searchable individual firm websites so that Network members can quickly and easily identify and share resources. The Network has not yet fully explored its ability to identify and access the know-how and experience of its members. 

DuPont’s practice groups are also in the process of developing case support materials that will be accessible over the KB. The Network can develop case templates-essentially, case outlines providing cradle-to-grave analysis, law, and forms-for recurring types of litigation, such as employment and toxic tort, and post them on the KB. In-house counsel may find that the custodian of company case templates for families of cases, such as employment termination cases, can add value by improving the quality of case handling for individual matters and reducing overall costs. 

The Knowledge Base was specially designed and created in the mid-1990s to provide a mechanism for electronic communication among DuPont Legal and its PLFs and service providers. Since then, the Network has improved its use. It enables document sharing, the capture of reusable work product, the provision of up-to-date information on a range of subjects from DuPont and its businesses to the PLFs and service providers, and a forum for best practices.

Virtual Private Network Technology

At the time of the Knowledge Base’s creation, law firms were not widely using the internet, and the internet did not yet promise sufficient security as a collaborative client law firm tool. But with recent advances, DuPont Legal has implemented a virtual private network that uses the internet. The virtual private network, which is essentially an extranet with appropriate levels of security, has increased flexibility and reduced costs, while maintaining the same functionality previously offered on the KB. It has taken DuPont Legal and its PLFs and service providers to the next level of technological sophistication. Now, Network members directly access the KB via a secure internet link-much as one would access any other internet site-rather than via a dedicated fractional T1 line. 

Document Imaging

DuPont Legal retained Daticon Systems, Inc., to provide document-imaging services for its PLF Network. Daticon’s Virtual Partner software facilitates detailed tracking of document production history, provides online review of documents for relevance and privilege, and allows sharing of document annotations by the entire litigation team. Imaging not only costs less than manual document management, but it also reduces errors. Collaborative work teams from DuPont Legal and its PLFs use Virtual Partner daily in large-scale document products. 

Electronic Invoicing, Task-Based Codes, and eBilling

In 1996, DuPont began implementing electronic invoicing using task-based codes. DuPont Legal used the four standard code sets of the Uniform Task-Based Management System, the standard phase codes, and DuPont Legal’s own disbursement codes.7 The electronic data generated in these codes allow DuPont Legal to make in-depth comparative studies of law firm and vendor performance, to assess their relative efficiency, and to identify best practices. In addition, electronic invoicing expedites bill processing and payment. 

More recently, in order to move to the latest ebilling technology, DuPont Legal retained TyMetrix, Inc., to provide an integrated web-based ebilling solution. With the TyMetrix system, law firms and legal vendors electronically submit invoices in task-based format over a secure internet connection. Because TyMetrix is a fully automated and completely paperless process, bill processing is faster, less time-intensive, as well as less labor-intensive, and possible from remote locations. In addition, an in-house lawyer or legal assistant can generate detailed performance metrics reports at desktop computers, showing staffing assignments, workload allocation, and work by tasks. These reports are relevant to budgeting, strategic case management, and use of alternative billing. The TyMetrix system furthers collaborative budgeting and risk assessment. 

Driving Greater Collaboration in the Network

Not content with the status quo, in February 2000, Thomas L. Sager, vice president and assistant general counsel of DuPont Legal, commissioned a collaboration task force that consisted of members from DuPont Legal, the PLFs, and the service providers. Its task was to find ways of driving greater collaboration within the Network and, thus, to move to a new, higher level of performance. Over a six-month period, the task force perused the professional literature on collaboration, evaluated the state of collaborative activity within the Network, and studied cases of successful collaboration. The task force then prepared a white paper to share its findings with the Network. 

Two central conclusions of that study bear repeating here: 

• First, the collaboration process is a science, not an art, in the sense that there are reasonably well understood principles that law department managers can learn and apply on behalf of their companies in building work teams.
• Second, the effective use of technology as a tool to tie work team members together is crucial to the ability of the in-house legal department, one or more outside law firms, and one or more service providers to work seamlessly on the company’s legal matters.

We have looked at the specific technological tools that the Network implemented. Let’s examine now the basic principles of collaboration and the role technology plays in facilitating it. 

The Collaboration Process
For collaboration to be most effective, the participants in the team effort must have incentives to work together that are powerful enough to overcome existing barriers. Team members can achieve “win-win” outcomes if they recognize the benefits of collaboration. It is as simple as that. Participants in a team effort are more likely to work together when they find collaboration to be in their own enlightened, long-term self-interest. 

Collaboration is the process of working jointly with others, especially in an intellectual endeavor.8 Businesses create collaborative work groups (both intracompany and intercompany) to increase creativity, productivity, and efficiency. Collaborative relationships come about through the shared investment of time, effort, and capital in common work cultures, systems, and processes. 

To achieve the benefits of a collaborative relationship, a team must create an environment in which collaboration can succeed. To do this, it is important to understand the elements of effective collaboration, the steps by which collaborative teams are built, the drivers of collaboration, and the benefits to collaboration. 

Elements of Collaboration

The essential elements of collaboration-that is, the conditions required to foster a chemistry of cooperation-are easy to state, but difficult to attain. In the practice of law, effective collaboration flows from the following: 

• Calling: A sense of calling inspired through participation in a group legal practice aimed at service to a particular client or group of clients.
• Caring: A caring attitude developed through concern for the professional development of other group members and pride in the group’s results.
• Commitment: A creative energy born of enthusiastic commitment of time and effort to the accomplishment of the group’s goals.
• Shared vision: A coherent intent derived from a shared vision of what the group is about and intends to accomplish.
• Shared capital: A shared intellectual and relational capital created from group skills, knowledge bases, and interpersonal relationships.
• Shared systems: A congruence of systems brought about through alignment of work processes and communication methods to achieve efficiency.9

Steps in Building Collaborative Work Teams

We create collaborative work teams in careful steps, each building upon the previous ones. The formula is simple: pick team players, build trust among them, define the team’s goals, encourage communication among members, and design reward systems that drive positive behavior. (See fig. 2, Collaboration Roadmap.) We will explain these components by reference to DuPont’s experience with the Network. 

1 Pick Team Players 

Team players are people who can control territorial instincts and “play well with others.” Lone rangers do not make good team members. Team players also bring different skill sets and personality traits to the collaboration. We believe that the legal department must take the following steps: 

• Choose people who are good tool users. Professional competence is crucial, but is an assumed attribute. The team members must also be facile with the adoption and use of new technology and work processes.
• Choose good communicators. People who are effective networkers generally make better team members. People who seek to control access to information as a means of acquiring power rather than sharing it for mutual advantage generally make poor collaborators.
• Choose smart risk takers. Team members who are willing to intelligently assess and take risks and who are willing to share in the rewards and penalties associated with those risks are preferred team members.
• Choose trustworthy team members. Participants who are honest, loyal, reliable, and open are more effective in collaborative work groups than those who lack one or more of these attributes.

DuPont’s initial effort in building the Network was to identify lawyers and service providers with these qualities. It recognized that some combinations of people simply have an intangible “chemistry” that breeds collaboration. These people -because of personal affinity, shared professional experiences, or mutual goals-are able to work together in a way that is satisfying and productive. An assembly of the right team of people for the right project with financial, professional, and personal incentives for success should lead to mutual satisfaction, lucrative business opportunities, and, yes, even fun! 

DuPont Network members actively feed their chemistry by finding ways of helping one another. DuPont Legal, for example, has consistently gone the extra mile for its law firms and service providers by advertising and promoting the program (and member firms) to other potential users of its services. In turn, the law firms have committed substantial nonchargeable hours to the building and maintenance of the Network and the support of various initiatives to improve performance under the DuPont Legal Model. The law firms and service providers also cross-refer work to one another and look for ways to cooperate on projects. 

Chemistry does not come merely from assembling people of like backgrounds. Diversity in the alliance promotes creative thinking and shared learning. A rotation of positions, where appropriate, can provide opportunities for a broader cross-section of professionals from member firms and infuse fresh ideas into existing initiatives. The Network has carried forward DuPont’s long-standing commitment to a diverse work force as a key element of the collaborative process. 

2 Build Trust

In collaborative work teams, trust is the shared belief that you can depend on your teammates to achieve a common purpose. Trust grows when expectations are fulfilled. It evolves over time through words and actions that demonstrate genuine care and instill confidence that another person will do no harm. The role of trust in collaborative relationships is to promote long-term stability, reduce transaction costs, increase risk tolerance, and improve the quality of the shared service. 

According to one expert on human behavior, there are five dimensions of trust, defined as follows: 

• Integrity (honesty and truthfulness).
• Competence (technical and interpersonal skill).
• Loyalty (benevolent motives toward another).
• Consistency (reliability, predictability, and good judgment).
• Openness (willingness to share information and mental accessibility).10

Trust does not happen immediately. As personal relationships grow, social distance decreases.11 People must get to know one another on a social basis, gaining an appreciation for one another’s attitudes, values, and beliefs, before they can be comfortable working in a collaborative way. They must share information about mutual expectations of the relationship, reduce distrust through a candid exchange of aspirations and concerns about the relationship, and define power relationships upfront. 

For effective collaboration to exist, team members must respect the interests of one another. They must deal with conflicts directly and fairly. Disputes about direction, money, and hurt feelings are inevitable in a collaborative relationship. Confronting issues when they occur in an open manner and working toward mutually beneficial solutions strengthens trust relationships.12

DuPont’s experience with its Network has demonstrated that a relationship is more likely to be defined as winning if it provides lasting benefits to its participants. “One-off” engagements, such as “beauty contests” to choose a firm for a single engagement, detract from relationship building. By getting to know one another personally and professionally, collaborators become comfortable with one another-comfortable enough to risk sharing work, client contacts, and opportunities. The heart of the convergence process is the elimination of one-off engagements and the development of long-term relationships of trust that allow the participants to build relational capital. In the language of the economist: “By committing to a small number of suppliers, the buyer firm can guarantee them greater ex post bargaining power and therefore greater ex ante incentives to make noncontractible investments-the buyer ends up being better off by keeping a smaller piece of a bigger pie.”13 

DuPont Legal has expended great effort since the formation of the Network to bring together lawyers and other service providers working on DuPont matters. Frequent face-to-face meetings of alliance members are essential to developing relationships of trust. Annual and mid-year meetings of the Network have successfully woven the fabric of these relationships, as have additional opportunities for a wider group of interested lawyers to get to know one another through practice group or special interest group meetings. The result is that members of the Network now know one another well. They have developed good professional relationships and, in many instances, strong personal friendships as a result of this association. 

3 Define Team Goals

An alliance must establish mutually agreed upon goals (and shared beliefs) to guide its performance. This goal-setting requires an alignment of the objectives and interests of the team members. One way to establish effective mutual objectives is to develop them from each firm’s objectives. For example, DuPont wanted to reduce the number of firms it dealt with, and the PLFs wanted a greater share of DuPont’s work; therefore, the concept of convergence was a good objective for both. In order to succeed, it is also important for all members to understand that things inevitably change, that the group will adapt to change, and that the goals of the group will evolve over time to meet the requirements of the new operating environment. 

Strong leadership in setting clear goals helps collaborative efforts succeed. On several occasions, DuPont Legal has surveyed the capabilities within the Network and chosen team members to staff the project at hand from a number of different law firms and service providers. In successful collaborations, the lead DuPont in-house lawyer or designated coordinating counsel has clearly defined, at the outset, the roles of each team member. Thus, the unequivocal message from DuPont has been: “This project is a group effort. Employ the best resources available. Work well together.” 

DuPont’s experience with its Network has shown that teamwork springs up naturally when people share a compelling interest in common issues and goals. The desire to address those issues or to meet those goals provides a strong incentive for people to join forces. 

An example of this phenomenon is the success of the Women Lawyers’ Network, a group of women lawyers representing DuPont who have bonded together to promote legal excellence through professional development and advancement of women. The group has been quite successful in efforts to create leadership opportunities for women lawyers, to foster business development skills, and to generate a positive and bias-free working environment. 

4 Encourage Communication

Effective collaborative work teams typically have strong communications based upon the following: 

• Culture and climate of connectivity, which includes the belief that their status as a virtual law firm furthers creativity.
• Use of technology, such as cell phones, computers, and networks of computers, to connect members of the group.
• Frequent face-to-face meetings among group or subgroup members, such as Network annual meetings, practice group meetings, and interest group meetings, to socialize, reaffirm shared goals and beliefs, discuss plans and performance, celebrate and reward group successes, and air both good and bad news so that learning occurs and trust continues.
• Creation and maintenance of a shared knowledge management system, such as the KB, to collect the group’s intellectual capital, such as forms, briefs, and other information, and to make the collection accessible to all group members.

Although Network members initially were somewhat reticent to share work product unrelated to the case on which they were working or to participate in discussion forums or professional interchanges that might facilitate sharing valuable information and learning with competing firms, they have substantially overcome this reticence. Network members now routinely share their firm’s know-how and information with other members with the tacit understanding that other members will reciprocate to the mutual advantage of all. Such information sharing is, of course, at the heart of the collaboration process. 

5 Build Reward Systems

Development of an effective collaborative work team depends in part upon the structuring of incentives that reward the conduct sought. This structuring involves the following steps: 

• Designing reward systems, including recognition devices, compensation agreements, and profit sharing, to compensate for the behavior that most effectively advances group goals. Bonus pools, special awards for exceptional performance, and recognition for team “wins” drive positive behavior and result in increased productivity.
• Measuring behavior in a systematic way, through management by objective and metrics, so that objective assessment of performance is possible and group participants can benchmark their performance against group and individual goals.
• Structuring compensation arrangements to make teams and their individual members behave like entrepreneurs rather than employees. Such packages provide better incentives and more fairly apportion risks and rewards in collaborative environments.
• Giving bonus pools and special awards for exceptional performance of legal and other services to the collaborating group. Such bonuses drive positive behavior and result in increased productivity.
• DuPont has taken steps to give Network members clear economic and noneconomic incentives to collaborate effectively. These incentives take several forms:
• DuPont’s alternative fee arrangements, which build in a mechanism for rewarding collaboration, are a powerful tool to encourage a group effort. Law firms and service providers participating in collaborative work teams can thereby reap financial benefits for doing top-quality legal work. As groups of people work together, they become accustomed to teamwork styles and processes. This familiarity breeds greater efficiency. Over time, institutional knowledge in the form of sample motions and briefs produces further cost savings because work product can be reused, instead of recreated.
• For several years, DuPont has used “The Challenge Award” to acknowledge and monetarily reward members of the Network for exceptional performance. In return, DuPont has benefited by bottom-line results delivered through a reduced litigation docket, shorter case cycle times, and lower legal expenses.
• The DuPont Network has been quite active in giving its members cross-referrals and valuable exposure to cutting-edge legal solutions. The ability to network in a professional context with others capable of referring additional work is an important benefit of alliances. Access to the intellectual capital and expertise of other professionals provides an important avenue of professional growth, allowing team members not only to resume-build through their experience, but also to share learning.

Conclusion

Applying new technological tools and well-understood principles of collaboration, a corporate law department can build a virtual law firm of private law firms and service providers, unrestricted by geography, to work together efficiently on the company’s legal matters. Such a firm should combine best in class substantive law, technical, and context expertise. To ensure its success, a law department must pick team players, build trust among them, define the team’s goals, encourage communication, and design rewards that drive positive behavior. 

The DuPont Primary Law Firm Network is a group of law firms and service providers who collaborate freely on cases and projects as the needs of DuPont dictate. DuPont Legal intends to leverage the hard work invested in building the strong relationships among Network members and in-house counsel to improve the quality of representation it receives while reducing total expenses. 

As the DuPont experience illustrates, a law department builds a virtual law firm with substantial effort, one step at a time. Smart use of technology to foster communication and capture and make useful the intellectual capital of the group is a critical ingredient of successful collaboration. Corporate legal managers who can organize and lead teams of lawyers and other professionals, assembled from multiple firms, in addressing complex litigation and transactional matters will reap considerable savings. They will also realize an important side benefit: the professional satisfaction that comes from participating on a winning team. 

Reprinted with permission of the authors and the American Corporate Counsel Association as it originally appeared: . “Six Sigma: Positioning for Competitive Advantage,” ACCA Docket. Copyright © 2001 Thomas L. Sager, Scott L. Winkelman and the American Corporate Counsel Association. All rights reserved. For more information or to join ACCA, call 202/293-4103, ext. 360, or visit www.acca.com. 

NOTES 

1. See Thomas L. Sager, “Toward a Common Goal,” ACCA Docket 15, no. 4 (1997): 12-24; see also Dana G. Mayer, “Five Years into the Experiment: An Evaluation of DuPont’s Legal Model Revisited,” ACCA Docket 16, no. 4 (1998): 24-34.
2. See David B. Wilking and G. Mitu Gilati, Reconceiving the Tournament of Lawyers: Tracking, Seeding, and Information Control in the International Labor Markets of Elite Law Firms, 84 VA. L. REV. 1581, 1590 (1998); Nick Bontis, There’s a Price on Your Head: Managing Intellectual Capital Strategically, BUS. Q., Summer 1996, at 40-47.
3. See Thomas L. Sager & Gerard G. Boccuti, “Achieving a Common Goal: DuPont’s Performance Metrics,” ACCA Docket 15, no. 5 (1997): 12-26.
4. See Thomas L. Sager and Scott L. Winkelman, “Six Sigma: Positioning for Competitive Advantage,” ACCA Docket 19, no. 1 (2001): 18-27.
5. See Thomas L. Sager & James D. Shomper, Moving Ahead with the DuPont Legal Model, LEAPS & BOUNDS, 5 (DuPont 2001).
6. Use of fractional T1 lines, a data circuit leased from a telephone company that carries network traffic or telephone conversations in digital form, as the backbone of the information-sharing system was cumbersome, expensive, and limiting because these lines prevent “anywhere access.” DuPont resolved this problem by moving to a secure web-based access system.
7. The American Bar Association’s Litigation Section, ACCA, and a group of 50 major corporate law departments and law firms developed the standard code sets of the Uniform Task-Based Management System in 1994.
8. WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 443 (1986).
9. See Mark E. Haskins et al., Beyond Teams: Toward an Ethic of Collaboration, 26 ORG. DYNAMICS 34 (Spring 1998).
10. See Marietta L. Baba, Dangerous Liaisons: Trust, Distrust, and Information Technology in American Work Organizations, 58 HUM. ORG. 331-45 (Fall 1999). See also JORDAN D. LEWIS, TRUSTED PARTNERS: HOW COMPANIES BUILD MUTUAL TRUST AND WIN TOGETHER 7-14 (1999).
11. “Deep Trust-the essential ingredient for creating the most value and solving the toughest problems-grows as interpersonal relationships strengthen.” See JORDAN D. LEWIS, TRUSTED PARTNERS: HOW COMPANIES BUILD MUTUAL TRUST AND WIN TOGETHER 9 (1999).
12. JORDAN D. LEWIS, TRUSTED PARTNERS: HOW COMPANIES BUILD MUTUAL TRUST AND WIN TOGETHER 121-133 (1999).
13. See generally J.Y. Bakos & E. Brynjolfsson, Information Technology, and the Optimal Number of Suppliers, 10 J. MGMT. INFO. SYS. 37-53 (1993); Jeffrey Dyer & Harbir Singh, The Relational View: Cooperative Strategy and Sources of Interorganizational Competitive Advantage, ACAD. MGT. REV., Oct. 1998, at 660.

Side Bar: Collaboration Tools and Services

The DuPont Legal Knowledge Base (“KB”) was developed several years ago at substantial expense to serve the specific needs of the Network. Off-the-shelf applications, however, are now available to law departments to facilitate collaborative efforts that accomplish many of the same objectives. 

Collaboration tools and services fall into one of two categories: synchronous, which are “real time,” and asynchronous, which are delayed because of time or transport. The following table attempts to categorize some commonly available tools and services using this distinction. 

Collaboration Services

Described below are various applications that collaborative work teams can use to exchange information synchronously and asynchronously: 

• Content streaming. Pushes production video/audio/data content via an “IP stream”-that is, internet protocol data stream, much like television-onto the network to be viewed by a large audience. This synchronous communication method uses a media player on a desktop and streaming media services from either an internal streaming media server or external media services from a provider, such as Yahoo.broadcast.com. Probably the most famous example is the Victoria’s Secret virtual fashion show produced by Yahoo Broadcasting.
• Internet (web) team workplaces. Provides browser access to a single virtual workplace for people to share and store documents, discussions, and databases. This asynchronous communication method allows a number of people in different locations to work together on a project or documents. Team workplaces can be hosted internally by a company or contracted from an external application service provider (“ASP”). Examples of this service include Intraspect, eRoom, Niku, TeamCenter, and Lotus Domino.
• Document/meeting sharing applications. Allows people to simultaneously share and work on documents or presentations electronically through server or peer-to-peer connection of multiple workstations. In this asynchronous communication method, the server applications can be shared or demonstrated, presentations presented, or digital white board used to brain storm solutions via an internet browser or client application. Examples of this service include NetMeeting, Groove, Lotus SameTime, Placeware, WebEx, and eRoom Real Time.
• Desktop video conferencing. Uses personal face-to-face video conferencing and person-to-person video calls. This synchronous communication method can also include the use of NetMeeting or other T.120 data sharing tools. Content collaboration began with this technology and ushered in the T.120 data-sharing standard. The transport for these services is either the IP network (H.323) or public switched infrastructure (H.320). This conferencing method works best with broadband connections. Some software integrates with Room systems protocols. Examples of this application include a camera attached to a personal computer and MS NetMeeting to collaborate with other staff face to face.
• Room video conferencing. Uses group face-to-face video conferencing, which can also include the use of T.120-based data sharing tools. This synchronous communication method is used for site-to-site group video meetings and multisite group video meetings using bridging services. Many larger companies have room systems installed in their largest offices to help managers and staff meet face to face without traveling.

A group collaborating on one or more matters may choose from these important technology tools to construct its own collaboration support system.

Two months later, Corporate Legal Times returned to five leading general counsel in the audience for Boies’ remarks to discover their perspectives on the issues he raised. We spoke with them one-on-one, and we present their comments here, organized in the sequence of topics raised by Boies shortly after his audience set down their forks and turned to listen.

Although he wasn’t in attendance, Corporate Legal Times also invited William Neukom, executive vice president of law and corporate affairs for Microsoft Corp., to respond to Boies’ remarks, which singled out Microsoft and its attorneys. Neukom declined to participate, citing scheduling conflicts.

CEOs: Indifferent No Longer

“When I started practicing law, the CEO’s expectation of litigation was essentially not to hear about it. Things have changed.”
-David Boies,
Boies, Schiller & Flexner

R. Scott Rogers, Corporate Legal Times: Does Boies’ statement that CEOs did not used to be very interested in most litigation match your experience?

Richard A. Bailey, Kraft Canada Inc.: Yes and no. Maybe what David was talking about were isolated cases. Taking cases one-by-one, would the chief executive be interested in every one? No. On very significant cases that had the potential to alter the future of the company or seriously impact the financial status of the company, of course the chief executive would be interested.

But there’s another aspect to it. It’s always been my experience that chief executive officers are most interested in the overall portfolio of cases. When you take all the litigation together, the mass of it may present a financial or a business-relationship picture that’s uncomfortable for the CEO. He’d definitely be interested in the volume and nature of the suits.

I’ve been in-house for more than 25 years, and I’ve never seen a CEO not interested in the portfolio.

Rogers, Corporate Legal Times: Has there been a change, then, in the nature of CEO interest in legal matters? Are CEOs more interested now in cases individually than they once were?

Bailey, Kraft Canada: They have become more interested in cases individually as the magnitude of cases has grown. There are potential damage awards and potential business consequences to lawsuits today that of course would attract the interest of the CEO.

It’s worth noting that CEOs have a much more in-depth knowledge of the law and the judicial system today than they had 10 or 15 years ago. It allows them to take a more informed interest in litigation.

Rogers, Corporate Legal Times: How did that come about?

Bailey, Kraft Canada: Our school system has placed an increased emphasis on law courses as you go through high school and as you take business programs at university. The cost and visibility of litigation through the media has increased. Generally, businesspeople have become more informed through the media about litigation.

There are not too many major business enterprises that haven’t, at some point during the last 10 years, faced some significant suits. To try to find a positive side to lawsuits, they’ve presented an education opportunity to the chief executive.

Rogers, Corporate Legal Times: Have CEOs become more focused on legal issues?

David J. Scott, Medtronic Inc.: As David puts it, they generally didn’t need to hear about it. This comment is a very useful reminder that having some clear, pragmatic business objectives and a realistic legal assessment of risk and reward early on in the litigation process is critical for both sides in high-stakes litigation. That’s the sort of thing the general counsel needs to spend time talking to the CEO about.

The other thing he points out is also a useful warning. It’s easy for general counsel and his or her outside litigation counsel to grow infatuated with the sound of their own arguments.

Rogers, Corporate Legal Times: If it’s a question of the CEO’s need to know, what has changed that requires the CEO to know more today?

Scott, Medtronic: Litigation has grown. In many companies litigation has grown in importance-both financial importance and strategic importance. The financial importance side of it is fairly obvious. The strategic elements vary by industry, but they could range from complex intellectual-property matters to meaningful products-liability matters, both of which could be quite strategic. That was less so 15 to 20 years ago.

Rogers, Corporate Legal Times: In his remarks, Boies discussed a temporal change in the relationship between the CEO and the general counsel. But in your career, you’ve also experienced a change of cultures, serving as general counsel for United Distillers & Vintners SA in London from 1997 to 1999. Do you see a difference in the way general counsel relate to executive management in the United Kingdom?

Scott, Medtronic: Litigation is less of a concern among multinational companies that have more business outside the United States than it is for those primarily occupied by business in the United States.

Increasingly the role of general counsel in sophisticated international companies based outside the United States is looking more and more like the role of sophisticated general counsel based inside the United States. In terms of general counsel providing core guidance to senior executive management, that was not the case nearly as often in companies outside the United States. But that is changing and changing fairly rapidly.

The sophistication level of general counsel and the expectations CEOs hold for them in companies located outside the United States has changed dramatically in the last 10 years. Outside the United States, on average, general counsel are probably five to 10 years behind where sophisticated American corporations are in terms of the use of corporate counsel. And that varies widely.

Rogers, Corporate Legal Times: Are things changing abroad because the nature of litigation abroad is changing as it has changed in the United States”

Scott, Medtronic: No, it has less to do with litigation and more to do with the global nature of the economy. It’s a change in the perception of the relative usefulness of general counsel located outside the United States, based upon their exposure to multicultural environments and different legal systems. Very sophisticated lawyers have the capacity to manage those differences reasonably well and with some level of objectivity.

Rogers, Corporate Legal Times: What do you think about the statement that general counsel are working more closely with their CEOs?

Andrew B. Steinberg, Travelocity.com LP: It would be very hard for me to do my job if I were off in a silo. The thing that makes my job most enjoyable is to be part of the executive team.

Rogers, Corporate Legal Times: Going back to your experience with American Airlines Inc., do you find CEOs are becoming more engaged with legal matters?

Steinberg, Travelocity: I’d like to say “yes,” but I don’t think so. Different companies have come to the same conclusion at different points in time. When I worked at American, as long as 10 years ago, the CEO demanded the right kind of information-particularly the cost-benefit analysis and the consequences of losing. But I think I worked for a very careful company very focused on the risks of litigation.

Rogers, Corporate Legal Times: In terms of the competitive environment, presumably American and other companies in its sector have more experience dealing with higher-stakes litigation.

Steinberg, Travelocity: That’s true. I brought that experience to my other jobs, at Sabre Inc. and Travelocity. I had the benefit of that kind of approach at American. It would be a good question to ask Anne McNamara. She’s been general counsel of AMR Corp. since 1988. She changed the culture more than anyone else in terms of engaging in proactive analysis.

Rogers, Corporate Legal Times: If CEOs have become better informed about legal matters, how do general counsel ensure they’re not simply giving their CEOs more rope with which to hang themselves?

Steinberg, Travelocity: It’s hard to know how far to go. My personal philosophy is that if I’ve explained all the risks-not in a two-minute meeting with the CEO when there are three people waiting outside his office, but in a 30-minute or one-hour session, if we have a calm discussion and I can explain the risks-and if based on that the CEO makes a decision, even if I disagree, I’ve done my job. But as general counsel I owe it to the company’s shareholders to make sure we have very thoroughly explained and quantified the risks.

I’ve learned to make sure I’m doing it in the right setting, where the CEO has the time to focus on the issues.

You’ve hit on a very important responsibility of the general counsel, to explain things in a way that, when your recommendation is rejected and the case goes poorly, you can say with a straight face, “This is the risk we discussed, and we agreed to accept it.”

It is the CEO’s decision. There could be some examples where the general counsel would have an obligation to take something to the board of directors. Those circumstances would be very few and far between, and hopefully if you felt it was a bet-the-company decision that needed to go that far, you could use your powers of persuasion to ask the CEO to take it to the board.

Rogers, Corporate Legal Times: Does Boies’ comment that CEOs formerly did not want to know about litigation reflect your experience?

Susan R. Lichtenstein, Tellabs Inc.: Yes. Nobody in business likes to deal with litigation. It’s retrospective in nature. Litigation is about a mess that’s already happened. It’s not about doing something productive for the future. It’s about damage control.

Any CEO likes to focus his attention on what the company is accomplishing, what it’s building for the future and what it’s doing. That’s not the nature of litigation. So it’s certainly nobody’s preference to have that be something you have to deal with.

That was true when I started practicing, and it’s true today. The difference is today many CEOs don’t have the luxury of being able to say, “I don’t want to hear about it.” Litigation has taken on such dimensions.

Rogers, Corporate Legal Times: Specifically what has changed that requires CEOs to care more about litigation?

Lichtenstein, Tellabs: Society has continued to become more and more litigious. The cost of litigation has been on an upward trajectory and shows no signs of abating. Class actions have become much more prevalent. They’re virtually commonplace now and they used to be an extraordinary thing.

Analyze, Predict and Budget

“One of the things a chief executive officer expects is that there will be a reasonable analysis of the cost and benefit of a particular litigation.”
-David Boies,
Boies, Schiller & Flexner

Rogers, Corporate Legal Times: Are general counsel and outside attorneys becoming more comfortable and confident in analyzing the costs and benefits of litigation, and doing so early enough?

Bailey, Kraft Canada: I absolutely agree with David’s proposition. There is a desperate need for greater diagnosis much earlier in the litigation process.

It’s extremely difficult to obtain a decisive risk opinion from outside counsel. That’s not to say every outside counsel finds it challenging to deliver that opinion, but many of them do. It falls to in-house counsel to take the outputs from outside counsel, filter them and make a decision.

It has been a source of frustration that we are unable to get outside counsel to say, “It looks like we’ve got a 70 percent chance here.” Trying to get that kind of a definitive statement, together with the reasons on which that risk assessment is based, is very, very difficult.

Rogers, Corporate Legal Times: What tools do you use to make that assessment in-house, and what form does the assessment take?

Bailey, Kraft Canada: You have to dissect the case in front of you to figure out the links have to be proven or established to create a strong probability of success in the suit. Then you go back and redirect outside counsel to provide you with research against each one of those links so you can piece it together to arrive at a conclusion.

That’s often the challenge you have with lawyers; they tend to see the case as one homogenous unit rather than the sum of its parts.

If you can pair the business-analytical skills of an in-house counsel with the experience, knowledge and expertise of outside counsel, you often have a team that serves the CEO well.

Rogers, Corporate Legal Times: You say there is a desperate need for greater diagnosis earlier in the process. Is that a conclusion general counsel have reached or is it something CEOs are calling for?

Bailey, Kraft Canada: It’s the senior management of the company, as David says. In order to run a business, you have to make some assumptions because you need to plan going forward. In order to make workable assumptions, you need as much data as possible.

Not all data is foolproof. But you need more than a wet thumb in the wind. If businesses are to allocate resources, if they are to take courses of action to move the business forward, they need to have some basis for making those decisions. It’s leader-led or management-led.

On a simplistic level, if you compare the legal function to the sales guy, management is looking for the sales guy to tell them what he will sell next year. He doesn’t know if the economy will go up or down. He doesn’t know if a particular product will suddenly be out of favor. He doesn’t know if a cultural change will occur that negatively impacts his product. So he makes assumptions based on experience, based on knowledge and based on as much information as he can get in front of him. But he’s not offering a guarantee; he’s offering a best opinion, based on a stated set of assumptions.

That doesn’t vary much from what counsel is being asked to do. The important thing for counsel is to underlie an opinion with clearly stated assumptions so management has an opportunity to test the assumptions, to understand them and to realize what the vagaries might be in the risk assessment that is offered.

Rogers, Corporate Legal Times: So don’t just tell management, “The potential costs are X, the benefits if we win will be Y, and we have a 70 percent chance of prevailing.” You must go on to explain how you reached those conclusions.

Bailey, Kraft Canada: Management is looking for three things. They’re looking first for a risk analysis, which, for simplicity, amounts to whether you’ll win or lose. The second thing they’re looking for is how much it will cost them to try to win the case. The third thing they’re looking for are the consequences to them if they win, or more importantly, if they lose the case. That means the business consequences, the financial consequences and so on.

The thing most difficult for lawyers is the first, the risk assessment. On that one, you need to parse out the case and look at the components: “I think we would have a 70 percent chance of winning if these three facts do exist, if this witness can provide this kind of testimony, if we have this kind of jury. If we have a different kind of jury, I’d give my assessment at 50 percent.”

When you present something that way, it affords everybody in management the opportunity to challenge and ultimately buy into whatever the final risk assessment is, and to understand it. Having a risk assessment is only part of the value. The main value is understanding how you came to it and on what it turns.

Businesspeople are focused on developing strategies and plans. When they understand the components of the risk assessment, they can focus on trying to optimize the realization of each of those assumptions so they do indeed get to the result they’re looking for.

One of the things we, as in-house counsel, often forget is that our title is “counsel.” That means management looks to us to provide them with business counsel from a legal perspective. Our focus must be on the success of the business, and the legal perspective is what we bring to the table.

Rogers, Corporate Legal Times: Give me an example of how you get the information you need from within the company to assess matters that come to your attention.

Craig B. Glidden, Chevron Phillips Chemical Co. LP: The answer has two parts. First, you have to know specifically what issues are involved in the litigation. You can’t determine what impact they’ll have on the company unless you have that knowledge. What we try to promote here at Chevron Phillips is that litigation risk analysis has to take into account and understand all the issues raised in a particular piece of litigation.

We don’t use that full-blown level of analysis on every case, because it wouldn’t be cost effective. But on those that are significant, it is worth anyone’s while to spend some time doing a litigation analysis of the issues presented in the litigation.

The second part is that the general counsel needs to understand the strategic direction of the company in terms of its intellectual-property portfolio or its business objectives. By putting the knowledge related to the case together with the knowledge related to the business objectives of the company, the general counsel will be in the best position to do the kind of early diagnosis and realistic assessment David talked about.

Rogers, Corporate Legal Times: How new is the general counsel’s role as a core member of the strategic decision-making process?

Glidden, Chevron Phillips: The role of the general counsel in corporate America has, certainly in the last 20 years, been on an upward trend. The general counsel today in most companies is really the counselor to the CEO on such matters, and to the board of directors. I won’t say it’s an immediate change.

But the tools general counsel have at their disposal have become more systematic. One of the points David makes which I identified with is the notion that CEOs are oftentimes called upon to quantify very difficult risks. They could be engineering projects or construction projects.

Lawyers need to adopt the tools which allow them to speak in that language to the CEO. In fact, by using task-based management and litigation risk analysis, lawyers can move themselves much further along in being able to communicate in the type of language CEOs use and apply to the uncertain circumstances they deal with every day.

General counsel are not unique. It may be that some of the tools to do this have been slow in coming to the legal profession. But they are available now and should be used.

Rogers, Corporate Legal Times: What are those tools?

Glidden, Chevron Phillips: Part of it, in terms of determining litigation costs, is the uniform task-based management system that has been promulgated by the American Bar Association. It provides for a code set that allows anyone to figure out how much they spend at various stages in the case. You can use it to start to diagram how much money you’ll need for each of those tasks or phases.

Oil and gas companies use a strategy called front-end loading when they have large engineering projects. They try to gather as much data as possible about the problems they’re confronting at the beginning. The same kind of methodology, whether it’s a task-based management or project-management software, can be adopted and adapted to the legal function to allow us to figure out what a matter will cost and to weigh the risks at various junctures.

Rogers, Corporate Legal Times: Do you get the information you need to do this from outside counsel?

Glidden, Chevron Phillips: Private-practice attorneys need to work on developing these skills and understanding that these skills are important. Part of the value-added solution we’re looking for from outside counsel is the ability to do this. It’s not just the ability to take the deposition or to produce the documents or to try the case.

We need to have outside counsel who can encapsulate the costs and risks associated with litigation in a manner that helps us explain it to the decision makers.

Rogers, Corporate Legal Times: At what point do you make that assessment and communicate it to the CEO?

Glidden, Chevron Phillips: You make the assessment as soon as practical and you communicate it as soon as possible. You may have to revisit the assessment, but David points out-and I agree with him-early diagnosis is critical. If you can assess the situation quickly and diffuse it quickly, you are much more likely to resolve it in a way that is satisfactory to the business objectives of the company.

Late diagnosis is often lethal diagnosis. It’s too late. The parties are fixed on their positions. At that juncture, the ability to strategically manage litigation is largely lost.

Rogers, Corporate Legal Times: Do CEOs really demand the right kind of analysis from their legal advisors, and do they do it enough?

Scott, Medtronic: CEOs are increasingly demanding this sort of analysis on the part of their legal teams. They’re right to do so.

The business world is full of things that are hard to predict. Yet it’s the role of the CEO, and certainly in some cases with the help of the general counsel, to predict things that are difficult to predict based upon any number of variables. That’s an area in which really good legal departments are much further along than many law firms.

I’m always a bit amused by outside litigation counsel when they say the odds of winning are 50-50. Do I hire them to confirm a totally random selection process? If you tell that to a good CEO, you’ll have a very short conversation.

We need to be able to offer more useful, more meaningful assessments, or our views won’t be important to the decision-making process.

Rogers, Corporate Legal Times: So how do you ensure you regularly provide meaningful assessments?

Scott, Medtronic: We work on the discipline of case assessment and constructively challenge outside counsel to help us better understand things we know are quite unpredictable.

Rogers, Corporate Legal Times: Does some of this trend toward more meaningful assessments flow from a realization among legal staff that they’re not in a uniquely unpredictable position?

Scott, Medtronic: Yes. Every year you have companies across the world spending billions and billions of dollars on R&D, for example. It’s not as if one can predict with any certainty the outcome of the various projects carried on using those billions of dollars.

The same is true of a consumer-products company spending heavily on advertising. No one knows for sure what advertising will work, and yet people have to make predictions based upon the very best kind of market research they can do and then measure the outcome of those advertising practices or the outcome of research that generates new product design or innovation.

Those are very uncertain exercises, certainly no less so than attempting to measure what a group of judges will do on appeal or a group of jurors will do with the case in front of them.

In fact, one could argue the predictability of legal matters should be a bit greater than the predictability of some of the other matters, particularly R&D, that CEOs routinely have to consider. Typically the range of possible outcomes is smaller. You also have the ability to test a bit more in advance with respect to those outcomes, either by way of assessment of outstanding precedent or by using mock trials and the like.

Rogers, Corporate Legal Times: At what point do you typically make the kind of assessment Boies talks about?

Scott, Medtronic: Just as early as we can in a litigation, because it helps frame what we’re prepared to do in the context of the litigation.

You have to do that with your eyes open. Facts change. Circumstances change. There’s the old joke, “When the facts change, so do I.”

You have to have a good relationship with outside counsel and a good relationship with management so when you take positions, or when you ask outside counsel to take positions, they do so confidently, knowing you understand that if the facts and circumstances change, their position might have to change as well. Senior business management needs to have the same kind of understanding when you speak frankly to them early on in a case about the possible prospects.

There are a lot of Pyrrhic victories in litigation. That’s usually the byproduct of a failure to do a responsible, thorough and reasonable assessment of the case early on.

Rogers, Corporate Legal Times: Do executives demand predictive analysis of their attorneys to the extent that they should?

Steinberg, Travelocity: Increasingly they do. The CEO of my company, Terrell Jones, is certainly interested in that kind of analysis before we get too far in any litigation. The first question I get asked is, “What is our percentage chance of winning?” You have to filter the estimate of your outside counsel and give your boss the real odds.

Sometimes litigation has the catch that you don’t necessarily have a decision about whether to proceed. Having said that, it’s an extremely important discipline.

It benefits the legal analysis to go through the risk analysis David is proposing, and to go through it early on. It helps you to focus on the probabilities of success at different stages of the litigation. It’s amazing how different the answers are from when you first ask outside counsel for a gut reaction to when you take the next step and try to do a more thorough risk assessment.

Rogers, Corporate Legal Times: Are outside counsel less willing or able to provide the kind of diagnostic analysis you describe?

Steinberg, Travelocity: I don’t know that they’re either less willing or less able. They’re much less focused on it. It’s not a service they’re accustomed to providing. Nor do they have any incentive to provide it.

Frequently, you find when you go through those analyses that you have underestimated the costs and risks to your side-particularly when you have a strong case-and perhaps underestimated the benefit to the other side of not following through.

Any case that’s settled is immediately less productive for outside counsel. I’m not saying that in a pejorative way; it’s not a deliberate thing, but clearly it’s in the job description of the in-house counsel to force the risk analysis at the beginning of the litigation process.

Rogers, Corporate Legal Times: How and when do you present your analysis of a matter to your CEO?

Steinberg, Travelocity: I’m working on a case right at the moment. It’s two weeks into it; we’re past the initial fireworks. When you’re staring at a potentially big budget for defending or prosecuting litigation, that’s when as an in-house lawyer you need to sit down and figure out if it’s worth pursuing.

Ideally, if you’re doing your job well, you should think about those things prior to a matter reaching litigation. Very few cases are brought without warning.

Rogers, Corporate Legal Times: How commonly do attorneys understand the need to engage in confident predictions of unpredictable matters in the same way the vice presidents of research or marketing need to do so?

Steinberg, Travelocity: Because of my experience at American, I’m accustomed to that. I find it hard to imagine not doing so, having done it that way for so long.

But that’s not to say there isn’t room for improvement. I’ve recently taken some courses that have helped me to appreciate assessing matters at an earlier stage and in a more scientific way. The first step in your negotiating strategy is to assess your risk and the risk to the other side.

Rogers, Corporate Legal Times: To the extent CEOs have to become more involved and knowledgeable about legal matters, what do they expect? What kind of information are CEOs seeking from their counsel today?

Lichtenstein, Tellabs: CEOs are looking for their counsel to report to them and to treat litigation in the way they expect any business problem to be treated.

In other words, a mistake a lot of lawyers make is they view a lawsuit as a universe unto itself. It’s not. It’s just a business problem that the company has. It’s one piece of a business puzzle the company faces every day. On a given day it might not even be the most important piece.

The CEO has a business problem, and he wants you to address it as a business problem. That means here’s the nature of the problem, here’s the quantity of the problem and here’s our proposed solution to the problem.

We’re just fooling ourselves if we think litigation is anything besides that.

Rogers, Corporate Legal Times: Many lawyers think a lot of other lawyers are unwilling or unable to address litigation as a business problem requiring a solution, an aspect of predictability and a budget. Is that something most attorneys are capable of delivering adequately right now?

Lichtenstein, Tellabs: The good ones are. But good attorneys, like good anything else, are few in number.

All you can do is make your expectations clear up front and then hope you’re working with people who deliver. If I have to select an outside lawyer in a place where I don’t know the lawyers and I’m relying on referrals rather than personal experience, then I make this kind of thing part of the due diligence I do on the lawyer I hire.

If I’m retaining litigators, I look for more than just whether they can win a case. That’s crucial, but it’s only a piece of the puzzle. I assume I will only consider great litigators who can win. Then the next question is, “How practical are they? How business-oriented are they? How much do they actually understand the needs of business and not just the requirements of a lawsuit?” That’s crucial.

Rogers, Corporate Legal Times: At what point are you typically framing the issues for your management team, presenting the problem, the possible outcomes and the probable costs and benefits?

Lichtenstein, Tellabs: As soon as possible. If you have a good working relationship with your CEO, he or she will understand that the assessment you give him after 24 hours of looking at a problem may have to be revised after a week or two.

You have to be prepared, at any step along the way, to give your judgment. There is no room in business for people to say, “Gosh, I just don’t know.” CEOs don’t have that luxury.

It’s like when election time comes around and people say they’re not going to vote. My reaction to that is, you don’t have the alternative of saying you don’t want either candidate. One or the other will be elected, and so it is an abdication to say you won’t make a choice because you don’t like the alternatives.

CEOs do not have the luxury of being able to wait until you’re 100 percent comfortable before you give them your advice. Business is about risk. Lawyers have to get comfortable with this.

If a lawsuit comes in, or a situation is deteriorating and it looks like there will be a lawsuit, the CEO is likely to turn to you and say, “What do you think?” Your response has to be, “Based on what I know, this is what I think.” If you have to go back a week later and say, “I’ve been looking into this more, and my view has changed a bit,” well, so be it.

Rogers, Corporate Legal Times: Are in-house counsel more aware now than ever that they are not in a uniquely unpredictable position with regard to the business’ activities?

Lichtenstein, Tellabs: In-house counsel are. Outside counsel are not. I still hear lawyers say you can’t budget for litigation. And when you do get budgets from them it’s couched in three pages worth of caveats and disclaimers. I was very pleased to hear David’s comments on this, because I’ve been singing that tune for years now.

Businesspeople, every day, have to make budgets when they don’t know whether a vendor will go out of business, they don’t know whether the regulatory scheme will change, they don’t know what a competitor might do. There’s nothing about litigation that makes it inherently less predictable than the vagaries of everyday business.

Rogers, Corporate Legal Times: If the vice president of research and development can submit a budget, then certainly the litigation attorneys can as well.

Lichtenstein, Tellabs: You bet. The response I get to that is, “You don’t have an opponent, you don’t have a judge.” That’s ridiculous. You have multiple opponents-all of your competitors. You have your customers. You have your shareholders.

Litigation’s Wider Impact

“The most important pieces of litigation will be measured in their importance to our clients not merely in terms of how much money they collect or pay, but also in terms of how they change the conditions under which they do business.” 
-David Boies,
Boies, Schiller & Flexner

Rogers, Corporate Legal Times: How do you build the business-strategic aspect of legal matters into your assessment? How do you ensure you have the ability to make judgments about the strategic impact of a given piece of litigation?

Bailey, Kraft Canada: It’s ironic. Trial lawyers are superb strategists in terms of mounting the case. But what David talks about is stepping back from the case and placing it in the context of the whole of the business and thinking forward two, three, five, seven years. You need to understand your business, you have to understand your competitive set and you have to understand where the business world is going generally.

We talk in terms of win or lose, but your risk assessment is often that if you win, you’ll have some consequences, and if you lose, you’ll have another set of consequences. In-house counsel have to take the various possible outcomes, take their understanding of the business-where they’re trying to take it and how they’re trying to grow the business-and ask how each consequence will assist or impede the business objectives over a period of years.

It’s possible, and I’ve seen it, that you would decide to settle a suit rather than prosecute it because winning the suit would create a dynamic that is not aligned with the direction you’re trying to take your business in. So you give up the short-term gain to benefit the long term.

We can’t sit back and be short-term managers in that we focus only on whether we’ll win or lose a case. We need to think about what winning or losing a case will do for the business going forward.

The sad thing about lawsuits is that, by and large, they’re about yesterday. That’s why it’s sometimes difficult to interest people in a company in a lawsuit. They’re busy building for today and tomorrow. The one thing businesspeople forget from time to time is that yesterday’s lawsuit may be tomorrow’s Achilles’ heel. It’s in-house counsel’s job to ensure any potential Achilles’ heel has a good bandage on it quickly.

Our job is to equip management to make an informed, intelligent decision. If your management does not make such a decision, you need to look at yourself in the mirror.

Rogers, Corporate Legal Times: Boies makes reference to the ways in which litigation can affect the conditions under which a company does business.

Scott, Medtronic: That’s true for many companies. There are also issues of reputation for many companies.

Rogers, Corporate Legal Times: How do you build business-condition issues into your litigation strategy and ensure that you and the legal team understand the wider ramifications of a matter?

Scott, Medtronic: That goes back to having a very good sense of the business objectives associated with a piece of litigation. If you can’t clearly state those business objectives, or if your businesspeople are stating those business objectives and those business objectives are clearly off-base-for example, they might be lacking in pragmatism in terms of the nature of the litigation in front of you-then you need to correct either of those shortcomings.

Rogers, Corporate Legal Times: Are outside counsel as tuned in to the business-condition effects of matters as inside counsel?

Steinberg, Travelocity: No, but they’re not expected to be. It depends on the model a company is using. There are some companies, but they are relatively few, that really do use outside counsel in the role of general counsel. There I would expect them to be aware of such issues.

But what you’ve described is the primary function of an in-house counsel; that is, to spot those issues that may really affect the company’s ability to go forward and compete and to think strategically about the proactive use of litigation and regulatory proceedings and the defensive use of such proceedings.

Where it becomes an issue would be when you’re growing fast, like we are. I can’t be involved in every deal that might become important. Occasionally a deal or an issue has been percolating for several weeks without a lot of attention being paid to it by the inside lawyers. Then you look at it and say, “My gosh, there’s this issue,” or “Didn’t you realize we should be asking to escrow the software?” or “Didn’t you recognize that this non-compete could affect our business?”

In those settings, not having an in-house lawyer look at it becomes a problem.

Rogers, Corporate Legal Times: How have you factored in public-perception issues when analyzing litigation matters?

Steinberg, Travelocity: If you define litigation more broadly to include regulatory proceedings we absolutely have. We do that all the time. It’s not just customer perception. It would be Wall Street perception as well.

In almost every dispute that’s meaningful, we at least ask the question-I call it the Wall Street Journal test-”What happens if this seemingly not significant dispute ends up on page one of the Journal?” How will we explain our position? What will the investment community think, what will your competitors think, what will your customers think?

Rogers, Corporate Legal Times: How do you assess the full impacts of a piece of litigation on the company?

Lichtenstein, Tellabs: Part of what good lawyers do is very intensive investigation at the outset. It used to be that people would learn enough to file a good-faith pleading and then plan to learn the case through discovery. That’s not the conventional wisdom about litigation anymore, and it’s the in-house lawyer’s responsibility to push outside counsel to make a fact-intensive investigation up front.

Rogers, Corporate Legal Times: Why has that changed? That’s a proposition that must lead to more up-front costs on any given matter.

Lichtenstein, Tellabs: Yes, but it will lead to lower overall costs. Plus, it helps you structure a better strategy for the case.

First of all, an early good settlement is better than a late good settlement. Always. An intensive investigation up front helps you understand your endgame earlier. If I can settle a case for $1 million today or for $1 million next year, I probably ought to settle it today.

That’s different from what the conventional wisdom used to be. When I was a new lawyer, I was taught that if you’re a defendant, you always want to delay things. You’re ultimately putting off the day when you have to write the check. While that’s true in some circumstances, for the most part litigation is detrimental to your business. It’s such a huge diversion of energy and resources.

Ending the Legal Arms Race

“For 20 years, I’ve been saying the legal profession was on the verge of pricing itself out of the market. Most of our major clients are caught up in a litigation arms race.”
-David Boies,
Boies, Schiller & Flexner

Rogers, Corporate Legal Times: Boies describes the cost of litigation as being comparable to a Cold War arms race that is pricing even large companies out of the justice system. Do you agree?

Bailey, Kraft Canada: I do, but the issue is far less serious in Canada than it is in the United States. My perception of litigation costs in the United States is that “outrageous” is too soft a word to describe them. In Canada, litigation costs are growing, but they are nowhere near the stratosphere that U.S. legal costs and damage awards have reached.

Rogers, Corporate Legal Times: What is Canada doing right that the United States is not?

Bailey, Kraft Canada: I don’t know that there’s a right or a wrong. But one of David’s recommendations is that, in commercial litigation, there might be an advantage in moving away from jury trials. In Canada, there are very few commercial matters tried by juries. Virtually all such matters are tried by judges alone; it’s been the custom in Canada forever.

I don’t know whether David is right or wrong in suggesting that’s a more cost-effective road. All I can say is that’s the route in place in Canada, and it costs much less to litigate a commercial matter in Canada than it does in the United States. There may be a case model here to support his proposition.

Rogers, Corporate Legal Times: What about Boies’ proposition about limiting discovery?

Bailey, Kraft Canada: Again, I have to make the distinction between Canada and the United States. The U.S. discovery process is much more extensive than the discovery process in Canada. The discovery process in Canada seems to be a more controlled process. David’s comments resonate with me, because our costs are lower than in the United States.

It may be coincidence, or it may be that David has hit upon two significant factors.

The other thing he mentions is that it may be necessary for judges to take stronger control of the discovery process and perhaps the trial process. I did litigation for a number of years before I came to Kraft. A good judge who develops an overall strategy for managing the case at the outset, and who is willing to be decisive as the case progresses, always seemed to generate a much more efficient and speedy trial that at the end of which, win or lose, you felt like you’d had a fair hearing.

Rogers, Corporate Legal Times: Is Boies right when he says corporations are being priced out of the justice system?

Glidden, Chevron Phillips: We almost have a litigation arms race. Nobody can unilaterally disarm. The global solutions to some of the problems he suggests have to be more systemic. They cannot be done simply on an isolated, litigation-by-litigation or company-by-company basis. There are certainly things we can do as lawyers to improve the situation.

Rogers, Corporate Legal Times: What are those things?

Glidden, Chevron Phillips: One solution David did not mention that would be helpful for many commercial disputes would be to create specialized commercial courts. They would be skilled in business-litigation issues, so we could go to a commercial-court track on certain kinds of litigation. Certain jurisdictions in Europe have this. There are some jurisdictions in the United States that have played with the idea. But nobody here has gotten it off the ground on a wide scale.

That would reduce some of the inefficiencies in the system as it relates to commercial litigation.

I agree with David’s suggestion for early mediation, or certainly mediation before trial. It’s been a very effective vehicle in Texas. I agree with his position on international arbitration. I’m not so keen on arbitration domestically, but under the right circumstances it can be helpful.

David’s other suggestion of the judge trial is also a good one. In certain jurisdictions it’s not just a judge trial. You can have a summary jury trial, which is an abbreviated form of jury trial that is less expensive for both parties.

Rogers, Corporate Legal Times: It’s interesting that you call mainly for systemic solutions to controlling litigation costs in contrast to Boies, who calls on lawyers and judges to change their own behavior, at least in terms of limiting discovery and choosing bench trials.

Glidden, Chevron Phillips: When they’re on the plaintiff’s side, there is an intuitive reason companies favor a jury trial. But whenever we have done judge trials and have been on the plaintiff’s side, we have felt that the results were fair. They were swift. And they were swifter and less expensive than a jury trial would have been.

Rogers, Corporate Legal Times: To what extent do CEOs need to play a role in drawing the line on litigation costs? Should CEOs be questioning GCs about whether to choose a bench trial or imposing discovery limits?

Glidden, Chevron Phillips: Yes. CEOs, to a certain extent, do exert pressure on the total legal spending component of what the general counsel does. But it would be helpful if they could also understand, and it’s the general counsel’s role to do so, how these other mechanisms might be useful in reducing the amount of total legal spending.

The other thing CEOs ought to consider is that, to a certain extent, much of our trial system is in the hands of elected officials. Companies need to be proactive in terms of seeing that qualified judges are elected and do their job. We have a very politicized plaintiffs’ bar that is in a position, oftentimes, of greater influence than companies in some jurisdictions.

When we talk about the disequilibrium between litigants, one of the things David did not mention is that you have very wealthy plaintiffs’ lawyers who are in a position to outspend very large companies in the pursuit of litigation.

Rogers, Corporate Legal Times: What can be done about that?

Glidden, Chevron Phillips: There have been some efforts at tort reform to do something about that. But my biggest concern is that government will become the most lucrative client for the plaintiffs’ bar. You see that in the form of the tobacco litigation, or in other litigation where, through the aggregation of large claims by governmental entities, plaintiffs’ lawyers are able to generate unbelievable war chests for purposes of this litigation arms race.

There is not much companies have to equip themselves to deal with that kind of an onslaught.

The legal profession needs to get out of the business of incrementalism. As long as we continue to approach very real problems with an incrementalist approach, the solution to the problem may be imposed on the legal profession. I am concerned that the failure to address these systemic problems will result in others outside of the legal profession fixing them for us.

Rogers, Corporate Legal Times: What do you think of Boies’ remarks regarding limiting discovery and waiving jury trials?

Scott, Medtronic: That part of David’s speech was problematic. On the one hand he attributes many of the problems we’re having in our system of justice to judges who fail to exercise the proper kind of judgment in discovery matters. He then urges us to be more willing to waive jury trials in serious commercial matters and rely instead on the good judgment of those same judges. That’s a bit awkward.

I have a lot of respect for David Boies, but he conveniently ignores other elements that do a good deal to drive up the cost of litigation and needlessly elevate the commercial stakes in a destabilizing manner. If you look at things such as the number of class actions and multi-district litigation, you see the assembled plaintiffs and their cases have far less in common than the self-interest of a small group of plaintiffs’ lawyers who purport to represent their interests. It would have been useful for David to deal with that as well.

Rogers, Corporate Legal Times: That problem calls for judges to change the way they certify classes or for a change in the laws governing certification, both of which are structural solutions that would be imposed on the system itself, rather than solutions that can come from general counsel or CEOs.

Scott, Medtronic: That’s why I suspect David would oppose many of those solutions.

Rogers, Corporate Legal Times: What other factors did Boies not mention that contribute to the rising cost of litigation?

Scott, Medtronic: He certainly identified a principal ingredient to the cost of litigation, which is the cost of discovery and discovery abuses. When you take that, in combination with class-action and multi-district litigation, those are the two major factors in the rising cost of litigation.

Rogers, Corporate Legal Times: Do you agree with the proposition that litigation is becoming prohibitively expensive for some companies?

Steinberg, Travelocity: I do.

Rogers, Corporate Legal Times: What do you think of Boies’ proposed solutions of limiting discovery and opting for bench trials?

Steinberg, Travelocity: I agree with the first. Discovery is by far the most wasteful part of the process. Finding a way to limit it would be a good thing-and I’ve been on the other side of David in some litigations. As long as discovery isn’t limited in a way that influences the outcome, then I would agree with that.

In terms of bench versus jury trials, it’s hard to make that decision in a vacuum. In some disputes you’ll have a much better chance of winning before a judge, and others you do better before a jury. That affects your risk analysis.

Judges are not all that predictable. It may be cheaper to go through a bench trial and have the judge set limits on discovery, but it’s not necessarily the better outcome. I’ve been in cases where we’ve been anxious to get to the jury, even as a defendant, because the judge, we perceived, was predisposed to the other side.

That’s why it’s hard to say in a vacuum that you want bench trials. In many states, judges are elected. Very few, if any, judges have lifetime appointments. So you’re rolling the dice in a different way. And I’m sure that if you talked to some plaintiffs’ attorneys, they’d say, “No way would we ever agree to a bench trial.”

Rogers, Corporate Legal Times: So how can CEOs attempt to control their legal expenses?

Steinberg, Travelocity: It’s hard to educate a CEO about these issues. It’s hard to ask a CEO whether you should agree to limit the case to six depositions. It’s up to the general counsel to advise the CEO whether that’s a good or a bad thing. It’s so much a part of your skill set as a lawyer that CEOs have to rely on you.

Companies that have large volumes of medium-sized cases clearly can and do get benchmark data. They can know their settlement costs and their litigation costs. CEOs ought to demand that. At American we had lots of cases in the employment area, and one of the first things we did was get control of our data. We calculated our average cost of defending a case versus a settlement.

There are some companies, not like mine, but there are huge companies that routinely bet the company. If you’re the general counsel of a tobacco company or General Motors Corp., you probably have some sense of even what a monstrous case budget should look like.

While the CEO can’t make those decisions, he can protect the shareholders from overspending by requiring the legal team have a budget and an explanation of how they’re using the money. If you have a large antitrust case that’s going to last for two or three years, and you know there will be millions of documents, a logical thing for a CEO to ask is whether you have the right mix of inside and outside work. If you know you’ll need 15 paralegals for two years, you should hire them. In most companies, it’s hard to expect the CEO to do much more than that.

Rogers, Corporate Legal Times: You’ve said you agree that the cost of litigation is rising. What do you think about Boies’ solutions of limiting discovery and considering bench trials?

Lichtenstein, Tellabs: They’re not bad. I’m not a big fan of jury trials for commercial cases. Juries are very good at certain kinds of things, but of necessity you have to make very complex matters very simple at a jury trial. It’s a limitation of the medium; I mean no disrespect to juries. With many commercial disputes, you don’t do them justice by oversimplifying.

Rogers, Corporate Legal Times: Is it plausible to expect both sides in commercial disputes to regularly prefer bench trials?

Lichtenstein, Tellabs: Perhaps. As David pointed out, trial lawyers’ egos get in the way of that. I would certainly advocate limiting your trials in commercial situations.

Rogers, Corporate Legal Times: What about limiting discovery? Would that help reign in litigation costs, and could it be done if it would?

Lichtenstein, Tellabs: I tend to agree with David that a hard-and-fast rule limiting discovery is too inflexible. What’s needed are good judges who are willing to impose some constraints based on the needs of the case. David makes a good point that he could take the Microsoft case to trial in six months. I’m hard-pressed to think of a case that ought to need more time.

Rogers, Corporate Legal Times: But if this is going to rely on the good sense of judges to make it work, it seems that the solution relies on the actors who are causing the problem now.

Lichtenstein, Tellabs: You just have to push attorneys to make cost-benefit judgments. They don’t ever want to do that. The essence of our legal training-and I’m not being ironic-is to leave no stone unturned. You can’t conduct a business that way. Turning stones is expensive. In business, every single day of the week, CEOs and other businesspeople make crucial decisions about which stones to overturn and which ones to leave alone based on cost-benefit analysis.

Lawyers hate to do that. We’re by nature risk-averse and we’re just taught that the best lawyer turns over every stone. That’s one of the reasons for the tension that exists between businesspeople and lawyers. We, as general counsel, have to push outside lawyers to build on their excellent training and bring some judgment to bear.

“Boies on Law Department Evolution.” Corporate Legal Times, October 2001, p.62

Building the Virtual Law Firm through Collaborative Work Teams

E.I. du Pont de Nemours and Company went to trial in Beaumont, Texas, in a poison well case with the deck stacked against it, and the stakes high. But DuPont won that bet, saving the company multimillions and frustrating trial lawyers’ hopes to establish property rights deep below the surface of the earth. 

The plaintiffs suing DuPont demanded $173 million for underground storage and environmental damage. Their claim: that the cancer-causing chemicals a DuPont plant was flushing through its wells into the earth had traveled beneath their land, had trashed their mineral rights, and would ultimately pollute their drinking water. 

Plaintiffs lawyers around the country were watching to see whether such cases might pay off. DuPont and other companies have wells like these around the country; their potential liability is enormous. And it might go further still. A plaintiffs victory might firmly establish property rights under the earth-which could be used as the foundation for other environmental and mineral rights suits. 

The test case in Beaumont seemed ideal for the plaintiffs bar. The people claiming that DuPont’s wells had polluted their property were none other than the McFaddins-one of the most prominent families in Texas. A McFaddin had fought at the Battle of San Jacinto, which had helped win the state independence from Mexico. A McFaddin owned the land under Spindletop dome, the location of the 1901 oil strike that put Beaumont on the map and helped change Texas’s image from the home of slow-talking cowboys to the land of risk-taking wildcatters. 

The firm representing the McFaddins was Beaumont’s Provost & Umphrey Law Firm-one of the state’s richest, best-known firms. It’s one of five hired by the Texas attorney general to pursue litigation against the tobacco industry. Provost & Umphrey’s share of the $2.3 billion in tobacco case legal fees means it could well afford the estimated $1 million cost to go after DuPont (the firm would not confirm that figure). 

Provost & Umphrey fielded a crack trial team, led by partners J. Keith Hyde and Greg Thompson. (Thompson is known for having won a $129 million verdict in an asbestos case.) 

Worse yet for DuPont: The suit was tried in a jurisdiction renowned as a plaintiffs heaven. “If you get your feelings hurt easily, or you can’t take a whipping every once in a while, you can’t be a defense lawyer here,” says DuPont’s local counsel in the case, M.C. Carrington of Beaumont’s Mehaffy & Weber. 

The plaintiffs’ claims also were problematic. They contended that toxic waste had migrated from under DuPont’s Beaumont Works chemical plant to the plaintiffs’ land and destroyed the value of their mineral rights-a charge akin to murder in oil-and-gas country. And they claimed that the value of the surface acreage of the legendary McFaddin property was cut in half. That’s like saying DuPont had defiled a Texas monument. Or at least that’s how the plaintiffs hoped jurors would see it. 

Key evidence seemed to work against DuPont. Plaintiffs had a map prepared by the company to gain the federal government’s permission to build what’s technically called a “deep injection well.” Such wells are, essentially, multilayered high-tech pipes, thrust deep into the bowels of the earth, through which manufacturing plants flush their toxic wastes. Those chemicals then remain in the earth’s brine-water layer, where, supposedly, they more or less stay put, or, if they span out, it’s in a diluted form. On its map, DuPont predicted that injected chemicals could creep underground, below the land owned by the McFaddins. As Provost & Umphrey’s Hyde puts it: “These deep wells inject hazardous waste beneath someone else’s property. This [case] centered around a trespass.” 

U.S. district court judge Thad Heartfield thought that allegation was good enough for the case to go forward. And he set the bar relatively low for the plaintiffs to make their case. Refusing DuPont’s motion to dismiss, he noted that the Texas Supreme Court has “recognized the viability of subsurface trespass claims under Texas law.” And every unauthorized entry is considered a trespass in Texas, he noted-even if there is no damage and no interference with use. 

DuPont feared that if the plaintiffs won, they’d be establishing those rights, as Silvio DeCarli, the company lawyer in charge of the defense, puts it, “to the center of the earth.” Then a flood of poison-well and other deep-earth suits might be unleashed. All told, companies have about 500 of these “Class I injection wells” around the United States. “We viewed this as the next wave of litigation” by the plaintiffs bar, says DuPont’s other outside counsel on the case, Damond Mace, a partner in Cleveland’s Squire, Sanders & Dempsey. “If they won here, it would march across the country.” 

Imagine the relief-the jubilation, even-when, at the end of the trial, a jury on March 13 rejected the plaintiffs’ case. It was, says Thomas Sager, DuPont’s top legal officer, “one of the top five wins I’ve seen in my time at DuPont.” And Sager has been with the company for 25 years. 

Sager attributes the win to DuPont’s ability to assemble a multifirm team, a virtual law firm for the case, rather than pay one firm for all the needed expertise. DuPont’s injection-well team was put together in 1998, soon after the company received its first letter from the plaintiffs. DeCarli was DuPont’s natural choice as inside point man; he’d been an environmental engineer designing pollution-control systems for ten years before going to law school. DeCarli selected Beaumont’s Mehaffy & Weber for its local savvy: knowledge of the players, potential impact on real estate values, that sort of thing. But “I got to Damond Mace by chance,” DeCarli says. His Lexis search of reported opinions on injection well cases found a few, one of which had gone to verdict and appeal. The Ohio Supreme Court upheld a win for Cleveland’s BP Chemicals, Inc., over a plant in Lima, Ohio. Mace had represented BP. 

The Delaware-based DeCarli met with the plaintiffs lawyers, clients, and scientists in Beaumont, his technical experts by his side. It was, he says, “a mediation without a mediator.” But as the DuPont lawyer listened, he came to believe that the plaintiffs had no proof of damages: “It just didn’t seem like there had been any harm.” And the only real evidence plaintiffs had of toxic chemicals migrating beneath McFaddin land, he concluded, was DuPont’s own maps. 

These are the maps the company was mandated to give the Environmental Protection Agency, depicting a worst-case scenario of where waste might travel. The federal government requires companies to provide proof that the material they propose to inject will do no harm to the environment, that it will be contained in a defined zone for 10,000 years, and that it will not affect oil or gas in the defined area. DuPont had passed that test. As a result, since the 1980s the company has injected some 3.6 billion gallons of wastewater containing acrylonitrile into the well, 4,200 feet under the Beaumont plant. Acrolonitrile, the chemical produced by the plant, is a basic building block for some plastics. It is also a known carcinogen. 

More than a year passed after that first meeting; letters were exchanged. Then, in December 1999, plaintiffs filed suit. They insisted that there were chemicals in the underground areas owned by McFaddin, and that DuPont had to pay an underground storage fee. The price tag: $43 million in compensatories, much of that in past and future storage fees-plus $130 million in punitives (based on the plaintiffs’ assessment of how much it would cost for DuPont to dispose of the hazardous waste somewhere else). 

The case barreled toward the courtroom. Settlement demands were always too high, says DeCarli: “We had these wells at other plants; so did other corporations. If we paid this claim, where would it stop?” 

Waste Management, Inc., had settled an injection-well case in 1991 for $15 million. But plaintiffs fared less well last year in two cases, both in Louisiana and both dismissed on summary judgment. With Boudreaux v. Equitable Storage, Mace says, plaintiffs had a problem with their experts. In Mongreu v. Monsanto, plaintiffs pursued the novel argument that the injected materials migrating under their land was an unconstitutional taking of their property. The U.S. Court of Appeals for the Fifth Circuit affirmed Mongreu’s summary judgment in May. Both cases are on appeal. 

“These wells were an effort to utilize the best disposal techniques to get rid of hazardous waste,” says DeCarli. “This was the most environmentally sound way of getting this stuff out of the biosphere. . . . There is no way this can migrate up to potable water.” 

So DuPont drew a line in the sand. There would be no settlement, says Sager: “We were determined.” 

Everyone’s role was clear as the defense team prepared for trial: Mace would handle the science; his undergraduate degree is in chemistry. Carrington and his partner Sandra Clark would contribute their insights into local opposing counsel. Carrington and Clark have been with Mehaffy & Weber since each graduated from law school, about two decades ago. Both specialize in defending large corporations in toxic torts and environmental litigation in the Gulf Coast area. 

In fact, Carrington was not only familiar with the opposing party, he was good friends with one of the named plaintiffs, Bill Wilson. Their children attended the same private schools; they’d gone on weekend trips with a mutual friend; Wilson even owned the building that houses the offices of Mehaffy & Weber, the Bank of America building on Calder Avenue at 10th Street. Suddenly adversaries in a high-stakes case, they put their friendship on hold. “It was one of those uncomfortable situations,” says Carrington. “We weren’t mad at each other, but we didn’t do much beyond nodding to each other when we saw each other in the hall or the elevator.” 

Carrington also knew two of the Provost & Umphrey lawyers on the case. He’d already tried cases against both Hyde and Darren Brown. “I knew they would come in with a blunt, sledgehammer approach, that we were the greedy corporate raiders,” says Carrington. So he made sure the defense stayed low-key. Clark goes further, saying: “There were no surprises at the trial.” That’s quite a claim. But the defense was ready when plaintiffs counsel began the trial by recalling Spindletop and the Battle of San Jacinto and the family’s vaunted place in Beaumont history. 

“Part of the plaintiffs’ strategy was to play the historical family story high in the trial. They tried to make this appear as if it was a family who cared about their land,” says Clark. Wilson and other name plaintiffs and family members took the witness stand to tell the tale. The testimony would resonate with Beaumont jurors already keenly aware of the McFaddin name. There’s a McFaddin Wildlife Refuge on the upper Texas coast. And on McFaddin Avenue in Old Town, Beaumont, a beautiful Southern mansion built in 1906 by the McFaddin family, is now a museum. 

Nonsense, said the defense. Carrington went after his buddy Wilson and doesn’t mind saying, “I hammered him in cross.” 

“While the land had been in the family for generations,” explains Clark, “they had sold off most of the surface estate” over the years. The land is now owned by corporate-type entities: estates, trusts, and banks. And no one lives there. Since the McFaddin family first sold part of the land to DuPont in the late 1940s, it’s been converted to industrial use. Other plants in the area include an Exxon Mobil refinery and a Sun Oil terminal. 

“They’re saying this is our heritage,” says Carrington. “I’m saying this is crazy.” The McFaddins own only about 230 acres now, plus the mineral rights under the entire site; about 20 percent of that mineral acreage is under the DuPont plant. “It’s not some homeland,” says Carrington. “It’s all about money.” 

As for the science, the plaintiffs’ geologists and computer modelers claimed to show where a plume of toxic chemicals had spread; other experts testified about how this had damaged the property’s value. 

Mace says that the plaintiffs did a “great job of signing up all the local experts.” As a result, DuPont was forced to turn to an outsider, Don Warner, professor emeritus of geological engineering at the School of Mines and Metallurgy at the University of Missouri-Rolla. Warner had done research for the EPA on deep injection wells when the federal government was considering how to regulate them. For the DuPont case, Warner analyzed the site’s geology, looking at well logs, seismic data, and faults to render an opinion on where the wastewater could flow. He spent four hours on the witness stand rebutting the McFaddins’ claims. “The injectate,” insists Mace, “doesn’t spread as far as they say it does.” 

Still, some of the most effective testimony for DuPont may have come from its passive witnesses: huge visual aids lugged into court and kept before the jurors throughout the trial. One display was an eight-foot-tall, three-foot-wide, multicolored chart showing what DuPont believes is the geology of the area beneath the plant-and why that land formation could not allow wastewater to migrate to the McFaddin property. At the top of this chart, putting everything into perspective, is a tiny dot depicting the tallest building in Beaumont. The rest is an enormous cross section of the 8,000 feet of layers beneath the DuPont plant: aquifers, shale, and clay. It looks, says Mace, “like a layer cake.” 
Getting Perspective

The chemical that DuPont is manufacturing in Beaumont causes cancer. But the company’s visual aides helped show jurors just how deep into the earth, and far away from humans, DuPont was pushing the plant’s wastewater. Click here to download the visual aid.

The defense also hauled into court 200 pounds of pipe-a scaled model of the top two feet of an injection well. The pipe has an outer casing of steel, followed by inner layers of concrete, then steel, then the injection pipe. Hazardous materials are pushed with water through the innermost pipe. At the same time, water is injected at high pressure in a surrounding casing so that, DeCarli explains, “if there is a leak in the internal pipe-a hole, a rupture or puncture-the waste doesn’t flow out; the water flows in.” 

The defense also pushed hard on this key scientific issue: The chemicals were being injected into existing brine water-which naturally has high levels of arsenic and metals. “Brine water is itself toxic,” says Mace. “If you tried to use it to water crops, it would kill them. It’s already unusable. By definition, pollution makes water unfit for drinking, but the brine water was already unfit.” 

After an 11-day trial, the jury had deliberated just two hours, Carrington recalls, when the parties were called back to the courtroom. “We thought the jury had a question. But as we came in, the marshal said, ‘You’ve got a verdict,’ and the jurors started filing in. It caught us off guard, but we felt, with this quick a verdict, it had to be a favorable result for us. If a jury is going to give away money, they’re going to take a little time.” 

Judge Heartfield looked at the verdict and handed it to the clerk to read aloud. At first Mace thought something had gone terribly wrong. Jurors were rejecting DuPont’s assertion that plaintiffs were barred from making their claims by the statute of limitations. Surprised, he started to get very nervous. “It was only a matter of a few seconds between the verdict on the first question and the next one,” says Mace, “but it seemed like hours.” Then, in quick succession, the jury rejected the rest of the plaintiffs’ case, finding no trespass, no violation of the plaintiffs’ storage rights, and no intentional pollution. 

Talk to the jurors today, and they’ll tell you that the defense’s experts were simply more convincing. Juror Wallace Wilbanks, for example, says that the plaintiffs’ first paid professional witness, Philip Bedient of Rice University, “kept talking about the poison that DuPont was dumping on the McFaddins’ property. It was ‘the poison this,’ ‘the poison that,’ “ says Wilbanks. But then the professor “admitted that the brine water that was 4,300-5,000 feet underground was very poisonous itself. You give it to cattle, your cattle will die. You drink it, you will die. That told me right quick that what DuPont was putting down there wasn’t as bad as what’s down there already.” 

The jurors were particularly unimpressed by the plaintiffs’ real estate expert, says Wilbanks, who lives about two miles from the McFaddin land. “The plaintiffs’ expert had devaluated the property by half and said the mineral rights were worth zero, but he admitted he never set foot on the property,” recalls Wilbank. In contrast, a defense real estate appraiser “had walked over the whole property. He knew it.” This expert talked about how a drag strip had been on the land years before. “I used to drag cars over there,” says Wilbanks. “He knew what he was talking about.” 

DuPont triumphed. But the case cost the company significantly more than $1 million. The McFaddins did not file an appeal, not even a motion for a retrial. Perhaps they decided $1 million was enough to spend on a lost case. Whatever their reasoning, injection well suits may not dry up as completely as DuPont would like. Hyde does say, “If we had another case with similar facts and similar circumstances, we still would pursue it. We still think our clients’ property rights were violated.” Surely, what happens to the two cases in Louisiana will help shape trial lawyers’ view of poison well cases’ potential. 

In Beaumont, though, things are more resolved. After a two-year hiatus, Carrington and Wilson are friends again. It may even be that there’s an added respect between them. Recently, Carrington reports, Wilson hired him to handle a lawsuit. 

Cronin Fisk, Margaret. “Who Owns the Earth?” Corporate Counsel, August 2001 p. 60-65.

In an interview, the Editor spoke with several members of the DuPont Law Department about their efforts in that regard. Parts I and II of that interview appeared in the March and April 2001 issues of The Metropolitan Corporate Counsel. The final part of the interview appears below and describes the work of members of the DuPont Law Department in the Department’s pipeline project to encourage minority high school students to consider careers in the legal profession.

The Editor interviewed Lyn Brantley and Earl MacFarlane of the DuPont Law Department about their work with the mock trial team at a local high school.

Editor: Lyn, please tell us about the team with which you are working and the competition.

Brantley: Howard High School in Wilmington, Delaware, is competing in the Delaware High School Mock Trial Competition. There are twenty-five schools in the competition, most of which are private schools. The competition will occur in late February and the winning school team will move on to the national competition later in the year.

The school entered the competition last year for the first time but could not find a lawyer who could serve as a mentor for the team and the school had to drop out of the competition. This year the school decided to enter the competition again, but it got a late start. In mid-December, the school formed an ad hoc team of eight 10th grade students who were classmates in a public service class. Half of the team is African American. The class instructor has a law enforcement background but no trial experience. That instructor was not able to work with the students individually due to the class size. Getting the students in after school is an impossibility because most have jobs. They needed a lawyer to serve as a mentor for the team to prepare them for the competition, so DuPont Legal determined that it would provide that support. Earl MacFarlane and I met with the team for the first time shortly before the holidays in late December. We meet with the team twice a week during the school day.

The goals of the program are to increase the skills of the participants to speak before groups, to express abstract ideas and to apply logic to an issue. We also hope that the children will benefit from having some positive contacts with lawyers and other legal professionals. Their contacts with the legal profession, if they have any, are often negative ones and otherwise their exposure to the law is what they know from television.

Editor: Would you describe the competition, Earl?

MacFarlane: Sure. Let me mention that this is the first year that Howard High is going to compete, but many schools have been involved in this competition since its inception, approximately ten years ago. Howard is the first public, predominately African American technology high school in Delaware. Some schools have resources devoted to this competition which Howard can’t match as yet. However, the support by the school staff has been very good and the kids have been very motivated.

The teams are given a set of hypothetical facts – a mock case – and they prepare to present and argue that case before judges (some of whom are actual members of the judiciary). Each team gets to argue both sides of the case – opening argument, direct, cross-examination, as well as closing argument – in three rounds of the competition. The youngsters serve as both lawyers and witnesses. In this way, they gain valuable exposure to the dynamics of a real jury trial.

The case that they are preparing to present relates to a child sent to a day care center. The child has a pre-existing asthmatic condition, and the center was told that the child could not tolerate cigarette smoke. The day care instructor, during a break, smoked in an area near the classroom. The child suffered a severe asthma attack that same day and stopped breathing for several minutes. The family sued the day care center for injuries related to the attack, including permanent brain damage.

Editor: It sounds like an exercise that challenges the team members but also engages them.

Brantley: Yes. Despite the late start, the students are enthusiastic about the competition and they seem to enjoy it. We hope that the positive contacts they have with members of the legal profession will have a lasting impact on them. I know that we have benefited from the experience so far. 

DuPont plans to make this an ongoing commitment, since we realize the importance of stretching this program beyond just the tenth grade and keeping the students involved in this type of program and exercise.

MacFarlane: You might be surprised by the talent you see the students exhibit. I’d like to see more companies get involved because I think they would see that there’s a lot of potential out there, a lot of kids who could be great future lawyers. They’ve got tremendous intelligence, great instincts – they just need encouragement, development and the benefit of our experience.

I’m pleased to report that very recently the team won awards in two separate rounds of the competition. In one round, the team won the “wooden gavel” for the best attorney and in another round it won the award for the best witness.

Editor: That’s terrific to hear. That is a testament both to the talent and perseverance and courage of the students on that team and the assistance that you gave them in preparing for that competition.

Thank you, both, for your time. You’ve given us a fine description of a wonderful program of the DuPont Law Department.

Part II

Meet Julie Mazza. She’s corporate counsel and manager of law firm partnering in the DuPont corporate legal department. But, what is more important, for purposes of this case study, she’s also a Six Sigma black belt. Mazza is responsible for managing DuPont’s national network of primary law firms (PLFs) and is a leader in many of the initiatives associated with DuPont Legal’s convergence program.

Readers are familiar with the basic theory and principles of Six Sigma from this issue of Legal Thought Leader. But what’s it like being a black belt as well as a busy corporate counsel with demanding professional responsibilities? Is this something that every lawyer can qualify himself or herself to be and, if so, how and to what degree does this add value to his or her role as a provider of strategic legal services to a corporate client? In short, is being a black belt a learning experience? 

According to Mazza: “I was trained in Six Sigma with a class of business clients, most of them engineers. This gave me an opportunity to learn more about their work processes so that I can provide them more focused and valuable legal advice. With the strong emphasis on Six Sigma, more and more clients are trained and working on projects. My increased understanding of their business needs and objectives makes me a more valuable player on their teams.”

The DuPont Legal Model Continues to Evolve with Six Sigma

The legal profession is aware of the DuPont legal model. It is commonly associated with what is labeled as the convergence process that DuPont Legal initiated in 1992. That process was a strategic management exercise that saw the legal department shrink its stable of outside law firms from 350 to 40 PLFs with whom it entered into long-term strategic alliances. The immediate short-term objective was to reduce outside law firm costs; however, what has in some cases been overlooked is the mission of the DuPont legal model. That mission is to “achieve efficiency, reduce costs and improve the quality and speed of legal services.” 

Embracing Six Sigma contributes to that mission. Mazza explains why: “The driver behind the legal model was the need to streamline the delivery of legal services, keeping the quality and value provided to the businesses while at the same time eliminating redundancies and duplication. Elements of the model, such as knowledge sharing through technology, allow multiple users access to available work product, eliminating the need to create it anew. Elimination of waste and duplication and improvements in quality are the cornerstones of Six Sigma and result in faster and more efficient service to the client.”

Where Can Six Sigma Add Value in a Corporate Legal Department?

The lead article of this issue of Legal Thought Leader indicates that services are a natural performance improvement target for a Six Sigma initiative. This certainly holds true for legal services. There are currently 48 Six Sigma projects under way in DuPont Legal that are intended to eliminate defects and improve efficiencies. They fall under the following categories:

A. “Low hanging fruit.” These are projects in which the defects are immediately apparent once a process is examined and the improvements are fairly simple to implement. Examples include:

• Elimination of standard printed forms in favor of electronically available copies
• Consistent use of fax and telephone numbers with an 800 toll-free area code
• Electronic instead of manual numbering of documents

B. Inherent process-oriented activity. These projects focus on processes that are theoretically uniform but in fact are inconsistently applied, resulting in multiple and different processes or lack of standardization. Examples in this category include:

• Electronic invoicing and processing
• Document management (collection, processing, imaging, coding, production)
• E-mail file management
• Records retention
• Filing patents and trademarks

C. Substantive legal practice. These are the more complex projects involving aspects of the practice of law that necessarily require professional judgment and analysis. While more difficult to pursue because of lawyers’ natural resistance to standardization, if successful, changes can result in the most lasting and far-reaching improvements of all Six Sigma projects in the legal field. Examples of these projects include:

• Legal research
• Early case assessment
• Claims processing and coordination

How did DuPont Legal identify these areas and establish priorities that led to the launching of 48 Six Sigma projects? The starting point was to review its budget and identify its biggest cost drivers. Litigation and paper-driven processes in discovery are an obvious area to examine for defects in a legal service. Six Sigma focuses on standardization as a means to eliminate defects, when appropriate, and paper processes with their forms and precedents are natural candidates for standardization. Moreover, they are also processes in which are found variations for no apparent reason other than what starts as exceptions evolving into rules. 

People-driven processes are close behind in what is, for the most part, knowledge-based work heavily dependent on the strategic deployment of human capital. There are invariably opportunities to improve efficiencies in the manner in which standardized operations like taking routine depositions are done. It then becomes a matter of selecting the targets consistent with what is important to the client.

Black Belts Lead Teams Through the Process

You’ve been introduced to Mazza and you know what a Six Sigma black belt is. She, along with all other black belts in the DuPont program, was given four weeks of intensive training by external consultants. A major portion of that training was on statistics and process management techniques. However, the black belt is not a lone wolf. Indeed, he or she can’t be. The Six Sigma process is demanding and requires the buy-in and input of a team if it is to succeed. One of the black belt’s most important jobs is to assemble teams that will work on collecting and analyzing data in various projects and see to it that the projects are completed.

Other significant contributors to the Six Sigma effort are the green belts who are given a two-week training course. Mazza’s responsibility as a black belt is to provide the project teams and the green belts with leadership and direction in putting a designated project through the Six Sigma process. Leading lawyers is often compared to herding cats. These are professionals used to making individualized decisions and are often not natural team players. One of the advantages that Mazza has at DuPont Legal over and above a number of other legal departments is that the DuPont model has conditioned everyone in the legal department, as well as the PLFs, to work constructively together. Here’s how Mazza describes her black belt role and how she assembled and provided leadership to her teams: “The most successful teams are those that are directly involved with and have a stake in the particular process. They know the details of their work and where and how the relevant data exists. Guided by the methodology of Six Sigma (Define-Measure-Analyze-Improve-Control), they become the change agents incorporating the Six Sigma thinking into other areas of their work.”

Pent-up Grievances Are a Positive in Six Sigma

One of the positive attributes of Six Sigma that often help to get an early buy-in from skeptics is that it becomes a welcome forum for pent-up grievances. Black belts like Mazza are more than interested in hearing from an employee who has a gripe, it being understood that having a gripe is fundamentally different from being a complainer or constant naysayer. People often gripe because they are frustrated with what they see as defects in the system, although they may not articulate them in a strategic management context. The gripes are often fertile ground to launch a Six Sigma initiative.

For example, at DuPont Legal, support staff often complained about the need to manually complete a triple-carbon copy form to accompany outgoing mail to the mailroom. When a green belt reviewed the process, she discovered that not only was the paper copy not required, but also found that an electronic template could be used in its place. The improvement was easily made, resulting in less paper consumption, no lost forms and, above all, a savings of $40,000 a year since DuPont no longer needed to buy the printed form!

Process Mapping Has Yielded Added Value Benefits

One of the key components in a Six Sigma exercise, particularly in a transactional or service project, is process mapping. A straightforward flow chart is constructed that documents each and every step in a process. This is an important exercise in its own right because many processes have evolved incrementally without any strategic forethought. Program participants are more often than not surprised to find out just how many unknown steps are actually included in a particular process, particularly if it is paper driven. All sorts of people and departments are included in a communication loop just because they happen to have what might be at best a peripheral association with the main supply chain. In some instances a defect is substantially remedied just by eliminating these steps, which are in essence clogging the works.

Mazza describes how process mapping can expose a “hidden factor” in a process and point the way to increased experiences: “In document management, the need to be accurate and consistent often results in repeated reviews to ensure that the right documents get processed and produced. When the collections number in the millions of pages, the number of reviews tends to increase exponentially, again with the goal of preventing mistakes. In these circumstances, a process map can easily reveal that the process ends up with more quality checking steps than the substantive steps required! And, the quality is still not 100% ensured. When a process map exposes such a fallacy, it’s clearly time to revise and perhaps even overhaul the whole process.”

Give Six Sigma Strategic Status

One of the problems with many management initiatives is that they are left to function as stand-alone initiatives with nothing more than bland encouragement to entice buy-in by employees. Given its experience, DuPont Legal made no such mistake with Six Sigma. The senior management team in the corporation has made it unequivocally clear that every department is expected to buy into Six Sigma. The year 2000 variable compensation for DuPont Legal was tied to improvements related to Six Sigma. The general counsel and the management team have received green belt training and are using Six Sigma as a tool in the management process. Moreover, DuPont Legal has introduced its PLFs to the concept of continuous improvement. They are expected to work with corporate counsel to achieve the efficiencies associated with the program. In short, Six Sigma has become instilled at every level of management of DuPont Legal.

What Does the Future Hold for Six Sigma at DuPont Legal?

The DuPont legal model sets the stage for the role of metrics and continuous improvement as a strategic management tool as follows:

• Metrics brings credibility. They demonstrate the increased business discipline and precision brought to litigation management services and to legal services generally.
• Six Sigma is an important step in what is an evolving metrics management process.

What does a black belt like Mazza envision for Six Sigma at DuPont Legal? She says, “The clients are living, breathing, and thinking Six Sigma. Six Sigma is changing the way discrete processes are performed, but, more importantly, the Six Sigma mind-set is becoming ingrained in the very culture of the company. As legal counsel to these clients, we cannot afford to ignore the challenges and opportunities presented by such changes or else risk becoming obsolete.”

Commentary

This case study is interesting from a number of perspectives. First and foremost, it is an excellent illustration of how a visionary organization like DuPont Legal leverages a short-term cost-reduction-driven goal program like convergence into a mission of striving for excellence in performance. For outside law firms who are often (sometimes for valid reasons) suspicious that calls for collaborative partnering are just another way to cut costs at their expense, this is proof positive that there is a commitment in corporate legal departments to dealing with larger issues that are of genuine concern to all parties. The comments by Mazza should also provide an example to corporate counsel of the learning experience and rewards that can come form taking the plunge into a strategic management exercise.

This article is reprinted with the permission of John G. Kelly and Bridgeway Software, Inc. as it originally appeared in the Legal Thought Leader, May/June 2001. Legal Thought Leader is © 2001, Bridgeway Software, Inc. www.bridge-way.com and individual articles are © 2001, John G. Kelly Report, Inc. The Legal Thought Leader is a free bimonthly newsletter featuring topics of interest to the corporate legal executive. To subscribe click here.http://www.legalthoughtleader.com/pp/subscribe.htm 

John G. Kelly, B.Com., D.PIR., F.CIS., LL.B., M.S.Sc., M.A. ( Jud. Admin.), is a law professor at Seneca College in Toronto with core competencies in practice management. As a professional services strategist for corporate legal departments and law firms, he advises attorneys on the design and development of cost-effective strategies for client-centered legal services in the new professional services paradigm. He presents the Corporate Counsel Executive Leadership Strategic Management Program, which he designed. He researches and writes white papers on E-business strategic management issues for corporate legal departments.

But Patrick was different from most of the other neighborhood boys. He was an avid reader. He earned good grades in school and dreamed of having a life away from the ghetto. Patrick’s hard-working mother taught him the value of an education. Although she earned a meager wage as a dressmaker, Patrick’s mother spent her last dime on books and school-related activities for her two children. So Patrick studied hard. He even took a typing class in the hope that one day he would land a job working in an office, where he could wear a white shirt and tie. 

To get a better life for her children, Patrick’s mother accepted U.S. sponsorship from her mother, who was in the United States after having been sponsored by another family member, and moved the family to Washington, D.C., when Patrick was 14 years old. In their new home, they lived in a neighborhood that seemed just as dangerous as the one they had left. Even in America, Patrick did not see a lawyer except in the movies or on television. Then came Street Law. 

Street Law, Inc., a nonprofit organization founded in 1972, is a classic example of a pipeline project. The Street Law program brings high school teachers and attorney-volunteers together to teach children in Washington, D.C., about careers in the legal profession. In his high school Street Law class, Patrick and his classmates got a chance to meet and interact with lawyers who helped them prepare and try simulated cases in a real courtroom in front of a volunteer judge. 

It was during this experience that Patrick heard his calling. After Street Law, he decided to take a closer look at a law career. He attended Georgetown University and went on to earn his J.D. from Stanford Law School. Today, the child from Kingston who had never laid eyes on a lawyer is an associate in the Washington, D.C., office of Paul Weiss Rifkind Wharton & Garrison, where he specializes in corporate law. So inspired was he by Street Law that Patrick now serves on its board of directors.1 

Patrick Campbell found his way to a promising career. Unfortunately, many other talented minority students never get the opportunity to shine. The legal profession suffers because of their loss. Society suffers. To “prime the pipeline” to diversity in law, we must invest resources in developing our youth.

In this article, I will describe how DuPont is opening doors to legal careers for minority children and thereby helping to increase diversity within the profession. You may be able to adapt the pipeline programs that we have initiated and others that I will discuss to your own department, company, and community. To help you get started, DuPont has produced for the American Corporate Counsel Association a pipeline kit that gives you the tools to launch your own activity. (See sidebar.) 

The ACCA Diversity Pipeline Resource Kit 
Before we look at specific pipeline projects, however, let’s consider the advantages to having diversity in corporate legal departments and the challenges we must overcome. 

Advantages to Diversity
Many corporate legal departments, including DuPont Legal, are frustrated by the scarcity of minority attorneys and legal assistants. Although the U.S. population is 75 percent white and 25 percent minority, the legal profession is slightly more than 10 percent minority.2 In its annual progress report, “Miles to Go 2000,” the American Bar Association’s Commission on Racial and Ethnic Diversity in the Profession concluded that, “on a number of fronts, advances in the legal profession by Hispanics, African-Americans, Asian and Pacific Americans, and American Indians have stalled.”3 

The benefits of a diverse employee population in a corporate legal department are many. A multicultural team helps corporate management to communicate with and relate to a richer variety of consumers. A culturally diverse legal department also litigates smarter. When a company tries a case in a racially and ethnically diverse environment, the jury most likely will be similarly diverse. By reflecting the jury composition in the diversity of its legal team, a corporation will be better able to identify with jurors and thus not appear as an outsider. As a result, the jury will find it easier to connect with the corporate legal staff. 

Diversity in a legal department also helps a corporation to be sensitive to its own employment issues. Fair hiring and nondiscrimination policies tend to be much more comprehensive when the cultural makeup of the legal department reflects the diverse population. The likelihood of employment-related litigation decreases when corporate awareness of and sensitivity to workplace issues increase. 

Legal department diversity also benefits marketing. Legal departments today frequently advise on marketing strategies, serving as watchdogs for what companies should and should not say in advertising and other corporate communications. With a pool of culturally diverse legal professionals, departments-and, thus, corporations-tend to be more sensitive to consumer differences in the marketing of their products and services. 

With the push toward globalization in many corporations, it makes good business sense to have legal department personnel who understand and can better relate to the different cultures and mores of people internationally. In the global market, however, it is important not to generalize cultures and backgrounds. An American of Asian descent, for example, would not necessarily be well suited to try a case in Japan, where the culture differs markedly from Western culture. To be truly effective in the global market, a company must hire legal team members who are from the global market. 

There is one more important reason for promoting diversity in legal departments. The business of business is more than just business. Businesses in the private sector must do more than simply provide a return to their shareholders. As general counsel for a major corporation, I believe businesses have a duty to be role models and to provide educational and employment opportunities. By instituting diversity programs, we can ensure that talented and deserving people who might not otherwise have a chance to succeed get one. 

Challenges to Overcome
Despite our best efforts, however, neither DuPont nor our outside law firms can hire minority lawyers who do not exist. As I see it, in order to change the numbers, we must overcome two challenges: a lack of legal role models for young minority children and a poor media image of lawyers. 

I think sociologists would bear out the fact that kids who dream of becoming lawyers-or of attaining any other professional position-are not likely to achieve their ambition if they do not have adult role models whom they can emulate. Patrick Campbell’s decision to pursue law came only after he had met attorneys in the Street Law program. Patrick was also fortunate that he had had other character and educational role models during his childhood, including his pastor, his school principal, a local minister of Parliament, and his mother. Most minority students grow up without positive educational and career role models to steer them in the right direction. It is, therefore, important to reach out to them early. If they meet and interact with such role models in elementary and middle school, minority youth are more likely to develop constructive study habits and to set professional goals. 

We also must confront the image that the legal profession has on television, in the movies, and in the press. Quite often, the media exaggerate or sensationalize selfish, antagonistic, or otherwise negative efforts by members of the legal profession. To combat the perception that lawyers often engage in unethical, strictly money-driven practices, we have to consider how we can more accurately-and favorably-characterize the contributions of the whole profession and the role that minorities play in it. We need to humanize lawyers and the practice of law. 

The DuPont Experience
To address these challenges to diversity in our profession, DuPont Legal formed the Pipeline Committee. Headed by our vice president and assistant general counsel, Thomas L. Sager, the committee’s goal is to increase minority participation in the legal profession by providing more opportunities for minority students. Sager, who has been an industry champion of diversity for years, thinks that it should not be a minority-owned issue. He believes that diversity is important and relevant to everyone. The makeup of the Pipeline Committee reflects this philosophy. The Pipeline Committee comprises attorneys, legal assistants, and legal secretaries. Some are minorities. Many are not. Under Sager’s direction, the committee plans to reach its goal by working directly with young people in Wilmington, Delaware, the home of DuPont headquarters. 

Objectives
DuPont now has a number of successful diversity programs, but in the beginning, the Pipeline Committee had to develop guidelines on how to proceed. To do that, we had to identify corporate objectives. We had to analyze our company’s needs and clarify our philosophies. Like most other large corporations, DuPont needed diversity in the legal department for the reasons I’ve outlined. As for philosophy, we simply wanted to be a good corporate citizen. This mindset would not allow us to make a few appearances at minority job fairs and then go away. Nor would we want to do that. We wanted to have a lasting presence in minority communities. We wanted to effect change. 

After establishing these objectives, we looked at three companies with superior diversity programs-Sears, Lucent Technologies, and Bell South-to see what they were doing. And we found quite a lot. All of these companies have solid programs to boost opportunities for minority children. 

The Sears Good Life Alliance is a cooperative effort with America’s Promise and the Points of Light Foundation, two foundations that sponsor programs to aid minority and underprivileged children and to improve their communities. Through the Good Life Alliance, Sears employees, retirees, and their families have pledged one million volunteer hours over the next three years to help “build the character and strengthen the competence” of youngsters.4 

The Lucent Foundation helps students in kindergarten through 12th grade to excel. It has defined six priorities as the basis for its programs:5

• Improving public schools.
• Developing and supporting teachers.
• Preparing youth for a diverse world.
• Inspiring excellence in science, math, and engineering.
• Engaging Lucent employees.
• Supporting Lucent’s communities.

In one of its most notable projects, the Newark Renaissance of Newark, New Jersey, the Lucent Foundation strives to improve the academic performance and science and math literacy of underprivileged youth and to provide them employment and career opportunities.6 

The Bell South Foundation seeks to “improve the quality of education in the Southeast”7 and has awarded millions of dollars in grants to support this cause. As part of its efforts, the foundation focuses on decreasing the technology gap “between minority and mainstream communities.”8 It is currently working to form a regional initiative to promote computer education in minority and disadvantaged communities. 

The Pipeline Committee also recognized that numerous organizations, including the American Corporate Counsel Association and the American Bar Association, and many law firms had already begun initiatives to remedy the shortage of minorities in the legal profession. Committee members familiarized themselves with these efforts in order to build upon them. 

Principles
After having examined on-going diversity initiatives, we came to appreciate a fundamental fact: we are not going to be able to hire a minority person who has never had a chance to attend law school. Too many bright, young minority students do not attend college because they do not perform well enough in secondary school. Coming from underprivileged backgrounds, they start the educational race way behind more fortunate youth. We thought about how a good corporate citizen would respond to this situation and came up with our own approach to giving such students the boost we thought they needed to get into that pipeline to prepare for acceptance to law school as soon as possible. 

The Pipeline Committee decided to target middle school and high school students to try to help them to get the education and tools they need to gain admittance to college, succeed there, and then go on to law school. That way, maybe 10 years from now, these kids can be candidates for positions at DuPont or another corporation. We chose to concentrate on African Americans and Hispanics because they represent the country’s two largest minority groups.9 We developed the following principles:

• Target minority youths early (in 7th grade) and work with them through college, emphasizing a steady, long-term commitment.
• Serve as legal-professional role models and mentors to minority youth.
• Employ a phased-in approach, beginning with discrete, manageable initiatives, and then expand outward to achieve the full support of legal and corporate management.
• Assist young people in mastering the skills necessary to enter the legal profession, such as communication, reasoning, reading, and computer technology skills.
• Define the pipeline broadly to include legal assistants and legal secretaries, as well as attorneys.

Programs
The DuPont Pipeline Committee had many brainstorming sessions about how to implement these principles. Taking into account models from other corporations, as well as the needs in our own community, the committee developed a list of specific programs to consider, including the following:

• Pre-law club. A corporate legal department can set up a pre-law club in partnership with a school or community organization. The corporation provides the legal professionals to serve as club coordinators and instructors.
• Summer law camp/school. The National Bar Association, an organization of African-American attorneys, conducts a summer law camp for 8th to 11th graders that serves as an excellent model. The teenagers convene at a college campus.

Other Pipeline Resources

• Mock trial team. Many school systems already have mock trial competitions and need corporate sponsors. Attorneys make a commitment to meet regularly with students to teach them about various aspects of litigation.
• Debate team. Similar to a pre-law club, a debate team also requires cooperation between a school or an organization and a corporation’s legal department. Legal Outreach, Inc., has a good model for a debate program.
• Participation in school career days. Local schools have career days, featuring representatives from various professions and occupations, and can provide information about their activities. Legal professionals informally explain to students what they do.
• Participation in “Take Our Daughters to Work Day.” Legal professionals contact local schools and obtain permission to bring female students to work for the day to expose them to various aspects of law employment. (See sidebar.)
• Job shadowing. In a variation on Take Our Daughters to Work Day, corporations arrange with local schools to “adopt” both female and male minority students for the day and bring them to work. (See sidebar below.)
• Internships. Bar associations sponsor summer internship programs that offer qualified high school seniors daily workplace experience in private law firms, corporate law divisions, and governmental law offices. The Nashville (Tenn.) Bar Association, for example, has a highly successful program. (See sidebar.)
• “Law Day” presentations. Corporate legal departments partner with local schools to prepare and present law-career information on this special annual event.
• Computer skills training. A computer-savvy volunteer from the legal department teaches a weekly class at a local school, covering such basics as word processing, databases, and internet research. The training, a partnership between the corporation and the school or a community organization, requires funding for the purchase of computers and internet access. Corporations often donate computers.
• Presentation/communication skills training. Legal departments partner with the local school system to train students on improving their oral presentation and communication skills. A good model for such a workshop is the mock congressional hearing competition that the Justice Resource Center sponsors for students who speak Urdu, Cantonese, Mandarin, Russian, and/or Spanish, in addition to English. (For contact information, see sidebar)
• Outreach presentations at minority job fairs. Attorneys from the legal department agree to be presenters at minority job fairs in their community. The Minority On-Line Information Service (“MOLIS”) is a great resource for upcoming job fairs in many cities. (See sidebar.)
• The choice of a pipeline program is a wide one. Before we settled on our activities, we reviewed our corporate objectives and program principles and evaluated our time and financial resources.

Initiatives
Wishing to attract students, but also appreciating the need to be realistic, our committee selected two initiatives to begin the pipeline process. It plans to phase in other initiatives later. We chose (1) a mock trial program because it quickly exposes many children to different types of legal careers and (2) a computer skills training program because we wanted to address the technology gap. 

Two DuPont Legal attorneys now coach teams in the Delaware State Mock Trial Competition, which was already in existence. One, senior counsel Evelyn Brantley, works with students at Howard High School, a predominantly African American public school in Wilmington. Evelyn believes we are reaching kids who would not otherwise meet lawyers during their childhoods. 

The DuPont mock-trial lawyers give eight children selected by their teachers a crash course in the law. The students learn what opening statements and direct and cross examinations are and how to prepare them. Basically, our attorney-coaches give these kids the tools they need, and the kids then come up with their own arguments, just as they would in the real world. For many of the students, trial work seems to come naturally. Some are already looking forward to careers in the legal profession. One even has experience as a runner at a local law firm. 

The committee chose to consider a computer-related training program to help close the so-called “digital divide” in the United States between minorities, especially children, and whites. Michael Clarke, a DuPont lawyer and member of our Pipeline Committee, is currently working on developing a computer skills course, with an emphasis on legal issues, with a local social services agency that provides day care and after-school activities for young people. 

It is easy to see how programs like these can make a difference in young lives. DuPont Legal also participates in job shadowing, along with other corporate law departments. We adopt minority students from 3rd to 12th grade for the day and take them to work with us. The children get to see firsthand the many possibilities that a career in the legal profession has to offer. We outline this creative pipeline activity and others in the ACCA Pipeline kit, discussed below. 

Other Programs
Lawyers have also found many other ways to reach out to prime the pipeline to diversity in our profession. For example, Gray Cary Ware & Freidenrich, L.L.P., one of our primary law firms in California, has partnered since 1993 with the John Muir Alternative School in San Diego to educate its K-12 students about law and other disciplines and skills. This relationship has evolved over the years. As the students’ needs have changed, the firm has responded with new and innovative programs in nearly every grade. 

The partnership started with a monthly lecture series for older students. Now, it includes weekly individual rights seminars and even reading and math tutoring for elementary students. The firm’s attorneys and staff also lead workshops for teens on such topics as “Teenagers and the Law,” “Forming a Small Business,” and “Political Access.” The thought process behind programs like this law firm-school partnership is simple: connect with the children as early as possible, stay with them, and guide them into and through the pipeline. (For contact information, see sidebar on this page.) 

Pipeline Contacts
No one knows this process better than James O’Neal, executive director of Legal Outreach, Inc., which is an excellent example of how pipeline programs should work. Legal Outreach targets middle school children and high school freshmen who still have time to improve their grades and study habits. Its college-bound program involves four years of academic enrichment designed to motivate students to pursue professional careers, improve their scholastic performance, and prepare for college. This initiative includes programs on improving study, writing, debating, and life skills, preparing for the SATs, obtaining internships, and selecting colleges. It even sponsors mentorships. 

Legal Outreach also runs a “Law and Social Problems” program that provides enough material to social studies teachers nationwide to educate 500 students a year about the role of law in the resolution of social problems prevalent in the community. Further, it cosponsors a seminar/clinic with Columbia University School of Law that prepares law students to teach law to middle school students and supervises their instruction. (For contact information, seesidebar.) 

Getting Started
You do not have to be DuPont to have a pipeline program. Any corporation, regardless of size, can make a difference in minority children’s lives without tying up a large amount of resources. Many companies, for example, incorporate such initiatives as one-on-one mentoring, in which only a minimal commitment of time and financial resources is necessary. 

To establish an effective pipeline program, I suggest that you begin as we did, by identifying corporate objectives and developing specific initiatives. To do so, you will need to form a pipeline committee. This committee should consist of people serving in a variety of positions within your department: attorneys, legal assistants, legal secretaries, and information technology associates. You should also have legal managers sitting on the committee, people who have the power to get programs approved by other leaders in your company. Your pipeline committee should reflect the diversity of the community on which you are focusing. If your legal department lacks minority representatives, recruit some from other departments. 

Once the committee is in place, you will need to examine your individual corporate needs and philosophies. Take a look at how your company fits into the community. Where is the greatest need in the community? How is your company best equipped to help? After you have assessed your needs, think about your corporate philosophy. How do you want to portray your corporation in the community? If your pipeline committee is fairly diverse, you should have a good gauge on the community. If it is not, you may want to conduct some focus groups or surveys to get a better idea of your corporation’s image as a member of your community. Once you have determined your needs and philosophy, brainstorm within your committee to come up with initiatives that reflect and support your corporate philosophy. Consider the programs that other corporations have successfully embraced. 

After you have come up with your initiatives, you will have to narrow them down. Well-intentioned committees often start off by being too ambitious. They over-extend themselves and wind up disappointing students and community leaders. It is important to start small and work your way up. Also, you must capture your audience’s attention. Your programs must attract children, which means they need an entertainment element in addition to the substance. A completely academic approach will not work. 

The ACCA Pipeline Kit
The possibilities for priming the pipeline are as far-reaching as your creativity will allow. If you do not know how to start, the ACCA Pipeline Kit, sponsored by DuPont, may help. It provides a road map for getting minority youth into the corporate law pipeline through community outreach programs, such as mentoring, internships, and educational clubs and classes. 

In the ACCA Pipeline Kit, we outline many different programs from around the country, including the following: the National Bar Association’s “Summer Law Camp”; the “Stay in School Program” for City Youth,” sponsored by the U.S. Attorney’s Office for the District of Massachusetts; the Fairfax (VA) Bar Association’s Law-Related Education Committee’s Court Tour; and many mock trial competitions, sponsored by various corporate legal departments and law firms. 

We took the best pipeline practices of legal departments, law firms, and other organizations and compiled them in an easy-to-use resource. You can use the kit as a guide for customizing a program specific to your company’s needs and goals. It is filled with resources and templates, such as guidelines for serving schools and community organizations as an outside resource person or establishing a mentoring program. With these tools, you can choose the programs that will be successful for your company and even obtain funding. 

Measuring Success
As with all long-term projects, the results of pipeline programs are difficult to measure. The best metrics will be years from now, when we count the number of children in pipeline projects who have entered the legal profession. Before then, however, we can measure success by (1) the number of minority kids in a program and (2) the number of those kids who go on to college. Increasing these numbers alone would be a major achievement. 

We are still in the early phases of our initiatives at DuPont, but the results of other pipeline projects are very encouraging. Consider, for example, McGuire Woods LLP. This DuPont primary law firm established the Carver Promise Initiative, a nationally recognized program that promises guidance and support to 3rd grade students at Carver Elementary School, which serves the most disadvantaged community in Richmond, Virginia. The promise unites McGuire Woods with the University of Richmond, Virginia Commonwealth University, Virginia Union, and J. Sergeant Reynolds Community College. The colleges and universities provide long-term mentors to 3rd graders at Carver Elementary: the mentors remain with the children through the nine subsequent years of their primary and secondary schooling. The youngsters even go on educational field trips, including tours of university campuses. McGuire Woods helps the children to get financial aid for college. In the past 10 years, it has been able to reach out to five 3rd grade classes or roughly 700 students. 

In another successful story, the Bar Association of Metropolitan St. Louis joined forces with businesses, schools, foundations, other nonprofit organizations, and the government to create an internship program for urban teenagers. In 1992, its program goal was to employ 50 inner city high school students in law firms throughout the metropolitan area. Working with the St. Louis Public School District, the bar association and cooperating organizations placed 52 kids. 

The ABA House of Delegates endorsed adoption of the St. Louis program by bar associations nationwide, and more than 37 have done so to date. Since 1992, more than 1700 interns have completed the internship program with 99 percent of them graduating high school. 

Other, more intangible evidence of success comes from some pipeline projects. DuPont attorneys who serve as role models tell me that the payoff for them is dealing with the youngsters. I know what they mean. One of our law firm attorneys once asked me to meet with a 12-year-old African-American boy, just to talk. When I met the child and began telling him about my career, we connected. I could see that he was looking at me as an African-American professional and envisioning a brighter future for himself. Helping a child to turn his life in a positive direction is rewarding and edifying. I must admit that I got as much out of our meeting as he did. 

There are millions of children just like this young man. If more companies begin pipeline initiatives, we can make a profound difference in these youngsters’ lives, in our society, and in our profession. 

Conclusion
Let’s face it: the diversity obstacles that many legal departments encounter are not going away any time soon. Without visible role models for minority children to emulate, how are we supposed to improve the numbers? With more and more companies vying for a limited number of minority professionals, the situation will only get worse. 

To effect change, we must convince corporate legal departments that having diversity in their teams is good business. We must convince management that corporations can relate to and better serve their customers and thus increase profits and minimize litigation when legal advisers are as diverse as the society in which we live. 

For now, we must take advantage of the resources available to us. We must ask the minority professionals we have to make themselves very visible to minority children in our own communities. Through mock trials, pre-law clubs, job shadowing, and other pipeline initiatives, these professionals can be mentors to kids who know lawyers only from television. 

With our continued effort, more minority children will turn out like Patrick Campbell, a young attorney with a bright future. We need to take time to educate such children about career opportunities as lawyers, legal assistants, and judges. We need to open the doors to their potential. When we do, the percentage of minorities within the legal profession will rise. Diversity will increase. And everyone will come out a winner. 

About the Author:
Stacey Mobley is senior vice president, chief administrative officer, and general counsel of DuPont in Wilmington, Delaware. He earned his J.D. from Howard University School of Law in Washington, D.C., where such alumni as Thurgood Marshall inspired him. 

This article is reprinted with the permission of the author and the American Corporate Counsel Association as it originally appeared in the ACCA Docket (vol. 19, no. 6, at pages 79-89). Copyright 2001, the American Corporate Counsel Association and Stacey Mobley, all rights reserved. For membership or subscription information, call 202/293-4103.

In an interview, the Editor and Deputy Editor spoke with several members of the DuPont Law Department about its efforts in that regard. Part I of the interview appeared in the March issue. Part II appears in this issue. Part III will appear in the June issue of The Metropolitan Corporate Counsel.

In Part II, the Editor continues the interviews Thomas L. Sager, Vice President and Assistant General Counsel of DuPont, Hinton J. Lucas, Associate General Counsel and Chief Administrative Counsel, and Michael Clarke, Corporate Counsel, of DuPont.

Editor: Mr. Clarke, would you provide the readers a description of some of the specific things that DuPont has done as part of the Diversity Pipeline Effort?

Michael Clarke: We formed a committee to focus on the pipeline project that includes not just lawyers, but also legal assistants, secretaries and IT professionals at DuPont to grapple with the issues and come up with some concrete proposals. The group started by deriving a set of principles that would guide us. Tom spoke to the fact that increasingly, for example, we find ourselves in jurisdictions where there is a greater percentage of minorities than perhaps we see in the boardroom at DuPont, although that is changing as well. Parallel to the recognition of that external truth, within DuPont diversity has become a core value, just as safety is. It is important for its own sake for the company, just like it is to most people in this country, to see increased minority participation in all professions. As Tom was talking, I thought about an experience we had with Ballard Spahr a couple of years ago when we needed some work done in Schuykill County, Pennsylvania. Schuykill County is mining country upstate. I have been there a lot, and I believe there is only a handful of African Americans living in the area. We sent a young associate from Ballard Spahr, who happens to be an African American, up there to do some work for us. We did not send him up there because he was black, but I think it was in some sense edifying that we were able to send an African American associate. He is American and this is America, and diversity is a core value of the company. We also were careful, as Tom and Luke suggested, to take stock and investigate the fine efforts that other companies and law firms before us have undertaken. I want to emphasize the fine work that others are doing.

Sager: We benchmark with companies routinely who come by to talk to us about the DuPont Legal Model. An increasing number are coming to talk to us about diversity as opposed to the other issues. It further reinforces the view that this issue is really starting to take hold and catch on with legal management wherever they practice.

Editor: Can you talk about what DuPont is developing?

Clarke: Let me rattle off some of the principles because I think they are important. As Tom suggested, we recognize the value of early intervention. We are going to focus on young people at the high school, or preferably the middle school, level. We are emphasizing a long?term commitment to these kids. We are going to measure this success years from now. We envision sticking with a student from when she is in 8th grade through high school, perhaps even into college. Years from now, when she enters law school, or frankly if she enters medical school, we will try to take some credit ourselves for a small part of that success. We recognize with all young people the value of role models so mentoring will be a significant aspect of many of the programs that we undertake. We want to start with discrete and manageable initiatives, recognizing the risk of overreaching. As Tom suggested, this is a corporate effort and a function?wide effort and it has the full buy in of the managers in Legal, including Tom and Luke and our General Counsel. That is significant because my colleagues understand that this is one of our highest priorities.

Sager: Michael’s Pipeline Committee is a great leadership and developmental tool. It consists of lawyers, IT professionals, legal assistants, and secretaries within DuPont who have a passion for this area and want to make a difference. They come to it with a sincere desire to make a difference, but what they get out of it is the ability, perhaps, to better present, connect, lead, and create. It is very fulfilling for many of these people and it develops them further as professionals.

Editor: What about scholarships?

Lucas: Several programs mentioned in the Pipeline Kit (tool for inhouse counsel in various legal departments to use in reaching out to Minority Students to increase their interest in the legal profession) have a scholarship component. One such program is sponsored by one of our partner law firms, McGuire Woods, whereby its Richmond, VA office adopted an elementary school with a major scholarship component involved in their program. Today, more than 400 students are eligible for a scholarship from McGuire Woods.

Editor: What are you doing to help students acquire computer skills and to become more knowledgable about what a lawyer does?

Sager: We stand in the shoes of everybody else who is trying to figure out how to make a difference. We are feeling our way through the issue and Mike and others have been leading a couple of initiatives – like the mock trial competition here in Wilmington with two of the local high schools. Another is working with children from the Kingswood Community Center and providing them with computer training.

Clarke: When we decided to define the skills on which we are focusing, we wanted to define those skills broadly to include communication, reading, a strong IT component, for example, and writing. As I suggested, if a student goes to medical school instead of law school, we are not going to count that as a failure. One of our first initiatives is with a local community services center here in a poor minority part of Wilmington. We are going to develop a computer skills curriculum for young, predominately minority, middle school students to try to help close the technology gaps that exist with regard to those kids.

Sager: One component will be that if they graduate from our six?month program (as we presently envision it), we are going to place a used computer in their homes. It’s easy for us to try to teach kids computer skills, but a student who cannot afford a computer because of circumstances is not going to get very far. What you need first is fundamental skills and confidence and then once you have that, then those goals are more reachable, like college and law school. Computers also entice them because everyone who is around computers for an hour is intrigued by them so we can devise training that will work on these skills, but at the same time be fun for the kids.

Clarke: Let me just emphasize that point. The easy part is giving them computers, the tougher and more valuable part is teaching them how to use the computers and staying with these young people over years so that they develop the skills, broadly stated, to get into college and then get into law school and join the legal profession. The Delaware High School Mock Trial competition is a pretty big deal down here. The mock trial competition has been going on for years and years. For several years, some of us have coached the Charter School of Wilmington’s Team. It is not mostly minority kids, but there are minority students that you work with there. This year for the first time, a couple of colleagues of mine, Earl MacFarlane and Lyn Brantley, are coaching the Howard school team, which is predominantly African American.

Lucas: In our Pipeline Kit we have a listing of mock trial programs across the country which people can call to get all of the background and prerequisite information to get a mock trial team going.

Editor: Are elements of the program directed specifically to females?

Clarke: Another initiative that we have at DuPont every April is “Take Our Daughters To Work Day.” While that initiative may not be part of the Diversity Pipeline Effort, some of my colleagues and I will be bringing some young girls to work with us, who would not otherwise have the opportunity to participate in this program.

Driver, Al “DuPont – A Law Department Works with Urban Students to Increase Interest in the Legal Profession – Part II.” The Metropolitan Corporate Counsel, April 2001, p. 34.

Part III

In an interview, the Al Driver spoke with several members of the DuPont Law Department about its efforts in that regard. The full interview will appear in three parts: Part I appears in this issue; Part II will appear in the April issue; and Part III will appear in the June issue of The Metropolitan Corporate Counsel. Part II describes the contents of a Kit designed to assist other law departments to promote diversity in their ranks, in the ranks of the law firms that they work with and in the legal profession. Finally, in Part III, representatives of DuPont’s Law Department will describe some specific initiatives it has commenced as part of its diversity-related efforts.

In Part I, the editor interviews Thomas L. Sager, Vice President and Assistant General Counsel of DuPont.

Editor: Would you give our readers an overview of DuPont’s Diversity Effort?

Sager: The DuPont Corporation has been committed to the subject of diversity for over twenty years. This commitment translated initially into a great deal of focused awareness and diversity training at the management level and within the professional and support ranks. As the years have gone by, this focus has intensified into weeklong workshops and things of that nature. In Legal, we developed our own set of principles and priorities with respect to diversity, which most recently manifested itself in our convergence process. Diversity was one of the four key criteria in the selection of our outside law firms. Through the convergence process, we’ve established a primary law firm network which numbers approximately 50 law firms and suppliers who are evaluated annually through our benchmark survey as to their contributions and performance in the area of diversity. The survey is designed to measure law firms who are successful in attracting, retaining and utilizing minorities and women on DuPont matters. Beyond this survey, our commitment has resulted in other initiatives: One is the DuPont Minority Job Fair which began in 1994 and is now into its seventh year. This concept has evolved from one minority job fair, hosted by DuPont in Wilmington, to now four in the cities of Wilmington, Chicago, Los Angeles and Houston. The minority job fairs have now been largely taken over and run by our primary law firms. Ballard Spahr took the lead initially and now a good number of the firms, primarily those located in those four cities noted above, support this effort. From those job fairs, a number of summer clerkships and permanent positions have been filled by minorities. They have also elevated the profile of diversity within the firms dramatically.

In addition to that, we are in our third year of helping to sponsor and underwrite a minority counsel network, which meets once a year. Last year they met in Wilmington and Julian Bond was the keynote speaker. This year they’re meeting in Detroit, and the Mayor of Detroit, Dennis Archer, will be the keynote speaker. The purpose of this network is threefold: One, to network, and with that drive referrals and business among minority attorneys. Two, help minority lawyers with their own career development goals and aspirations. Three, heighten the level of awareness as to the power of diversity within the law firms and certainly DuPont as well.

There is another network – of women – that has also been in place for three years, which meets once a year and has many of the same goals as the minority lawyers. Beyond that, DuPont is trying to look at the legal profession as a whole, and what we are finding – and which many other corporations and the American Bar Association, the American Corporate Counsel Association, and the Minority Corporate Counsel Association have been aware of – is that the percentage of minorities in the legal profession has been and remains at a woefully low number. (I believe it is 8% of the total number of lawyers in the profession.) DuPont believes that the key to increasing diversity in the profession is to start earlier in the process. By this I mean that we have all been competing for the same perceived talented minorities and that has led to recruiting against each other. We are not really increasing the percentage of minorities in the profession, but rather we are competing for those few that everyone believes are very talented and worth pursuing.

We decided to take on a pipeline initiative to accomplish a couple of things. First and foremost, we wanted to develop a Kit for inhouse counsel, like ourselves, general counsels in large and small legal departments, to help them become interested in broadening or reaching out to the local community with an eye to increasing the interest in the legal profession among minority students primarily in the middle and high schools. Two, we wanted to get our own legal department involved in such an outreach effort in order to make a difference here in Wilmington, Delaware. We decided that we cannot succeed in this pipeline initiative alone. In order to reach corporate legal departments throughout the country, we needed to partner with the American Corporate Counsel Association in the development of the Kit so that we can provide its members information and ideas as to how they might develop their own outreach efforts.

Editor: Can you provide some background on why DuPont is so committed to diversity?

Sager: Diversity is definitely the “right thing to do.” From a bottomline standpoint, I have been practicing in the litigation arena for many years, and I can cite any number of examples where diverse thinking brought a better result or certainly a better ability to communicate with a judge, politician or a jury, all of whom have become increasingly diverse over the years. For the law firms, it can also translate into more effective ways of relating to your clients. I see daily my peers, the vice presidents, the number twos and the general counsel, becoming increasingly diverse over time. So I think it is not only in the corporation’s best interest, but also that of the law firms, as they try to develop relationships with major corporations, such as DuPont.

Editor: When we started talking to you, Tom, you were the lone voice in the wilderness. Since then, and I am sure that a large part of it is by virtue of DuPont’s good example, there has been a flood of interest. Almost 350 general counsel have signed Charles Morgan’s Statement of Principle. How do you account for this?

Sager: First, I would like to commend Charles Morgan for his vision because you have to start where he did in striking a chord with the corporate legal community. While Charles’ commitment to diversity is contained in a Statement of Principle, I think that from this Statement actions and deeds will follow. I think that people are beginning to understand the demographic shifts in the population, the value of diversity, as anecdotal as it might be, and the changing lay of the land as it relates to juries in particular. For example, several great trial lawyers, like Jack Vardaman at Williams & Connolly, have related to me examples of how environmental racism themes are frequently being exploited by the plaintiffs’ bar. Further, how their ability to effectively try cases has become increasingly dependent upon how well they are able to staff with a diverse team of trial lawyers. I believe that others are beginning to feel the effects of this, through their customer base which is becoming increasingly diverse and their own working environments which reflect more and more of the population at large. They are beginning to be evaluated and, yes, even pressured by their CEOs and others. It is a very changing environment we are dealing with now. I think that more and more people are putting two and two together and realizing that it is not only the right thing to do, but for the purpose of self-preservation, they had better get on with it as well.

Editor: Are there any other companies that, like DuPont, have adopted the same comprehensive philosophy toward diversity?

Sager: A good frame of reference would be those corporations that have received the “Diversity 2000” awards through the Minority Corporate Counsel Association. They were selected for reasons largely driven by their commitment to diversity, and their initiatives in support of that effort. At the last dinner in New York City, there were over 1,100 people in attendance. Several of the companies recognized I believe were General Electric, Pitney Bowes, and Bristol Myers Squibb. These companies come at diversity with passion and a desire to treat this subject not just as a checklist item. There is a list of about 12-14 companies that would be thrilled to tell you about what they are doing.

Driver, Al “DuPont – A Law Department Works with Urban Students to Increase Interest in the Legal Profession – Part I.” The Metropolitan Corporate Counsel, March 2001, p. 28-32.

The revised and updated Legal Model was produced under the stewardship of Senior Vice President, Chief Administrative Officer, and General Counsel Stacey Mobley, the third General Counsel to serve since adoption of the Model, and who rose through the ranks since joining DuPont Legal in 1972. Mr. Mobley is both a strong believer in efficiency and in having DuPont’s lawyers and its outside counsel become intimately aware of the company’s core business and its values. Mr. Mobley is also well-known as a proponent of strengthening the legal profession by recruiting and retaining legal professionals from a broad diversity of backgrounds. Diversity is a core element of the Legal Model and DuPont has proven, once again, that inclusion and diversity are smart business.

The 2001 Legal Model was revised by DuPont Vice President and Assistant General Counsel Thomas L. Sager, who has infused the new Legal Model with the Six Sigma management theory of which he is a vigorous proponent, along with Corporate Counsel and law firm partner manager James D. Shomper, who joined DuPont Legal from an outside law firm in 1990.

The DuPont Legal Model has been widely recognized since it was first established in 1992 as a cutting-edge and innovative approach to meet the challenges of a complex, rapidly changing, and theretofore costly legal environment. More than 60 articles about the DuPont Legal Model have been published to date. The original Model represented a bold restructuring of the relationship between DuPont Legal and its outside law firms designed to transform the relationship into a virtual law firm through partnering and technology. The Model was motivated historically by a company-wide challenge in 1992 to increase shareholder value through enhanced performance of all operating units, including the legal department, which, in 1993, incurred $87 million in outside legal counsel fees, the highest ever for DuPont.

The starting point of the Legal Model was a three and one-half year convergence process that reduced from 350 to 35 the number of law firms with which DuPont Legal did business. Although conceived as a cost-cutting approach, the DuPont strategy evolved into true strategic, long-term partnering relationships with its outside law firms by which DuPont and its law firms have become committed to each other’s long-term financial successes. DuPont’s new Primary Law Firms were selected based on their commitment to six factors: (1) competence, excellence and getting results, (2) mutual financial success, (3) technology and work process reengineering, (4) the retention and contribution of women and minorities, (5) taking risks and advancing creativity, and (6) a willingness to be innovative.

In general, the DuPont Legal Model has taken law firms beyond the pure practice of law to the delivery of services that impact the client’s bottom line. This involves a change in focus from discrete legal issues to a fuller appreciation of the many factors that bear on problems as seen through the client’s eyes with a premium on collaboration and teamwork. The benefits to outside counsel have been myriad and tangible. They include faster payment of bills, greater client interaction, and a competitive advantage over their peers by virtue of the skills obtained by -working in an innovative corporate law program.

At its core, the DuPont Legal Model is an integrated framework subject to continual improvements and refinements that brings sharp focus to a coordinated and ongoing effort to deliver legal services more efficiently. The core elements of the DuPont Legal Model were established early on in the program and may be familiar: (1) strategic partnering, (2) early case assessment; (3) use of technology, (4) alternative fee arrangements, and (5) strategic -budgeting. These core elements are complemented by a strong commitment to diversity and to measuring -achievement.

DuPont is a leader in its focus on diversity, and has established networks of minority and women attorneys as well as innovative diversity programs. For instance, DuPont Legal and its Primary Law Firms have collaborated on minority job fairs. The DuPont Legal Model values people of all backgrounds, regardless of race, gender, age, ethnicity, disabilities, sexual orientation, religious affiliations and approach, and has proven that diversity is good business. This has led to a competitive advantage to DuPont Legal and its Primary Law Firms particularly because retention, as much as recruitment, is a key issue in achieving a culturally diverse legal workforce.

The DuPont Legal Model goes beyond theory because of its comprehensive metrics program designed to drive continuous improvement. The performance metrics measure traditional means such as costs, payouts and recoveries, as well as efficiency metrics such as staffing, cycle time and technology, in addition to peer-to-peer metrics involving the identification of best practices. An annual Benchmark Survey is sent to Primary Law Firms and measures and captures best practices.

Almost ten years of practice has proven that the DuPont Legal Model has produced significant and unprecedented results. Cost savings are in the range of $8 million to $12 million per year. The cycle time (from filing to resolution) of litigation has dropped from 39 to 22 months. Purchasing power has been leveraged effectively and legal staffing requirements can now be forecast more accurately. More women and minorities have been employed at the outside law firms retained by DuPont, and legal work is performed by those at the most appropriate levels of professional responsibility. As of 1999, the number of matters on DuPont’s legal docket was down nearly 70% from the peak year. True partnering with outside law firms has been achieved.

In order to remain in the forefront of the changing legal environment, the 2001 DuPont Legal Model incorporates new, revised and modified strategies and initiatives, including:

• Improving Productivity Through Six Sigma: Originally developed in 1986, and today adopted by many major international corporations, Six Sigma methodology provides the tools to help design, correct or optimize operations through problem-solving techniques. At its core, Six Sigma is a project-oriented, customer-focused, disciplined approach to management and operations that is statistically driven to increase efficiency. DuPont Legal believes its outside law firms will play a central role in the successful implementation of the Six Sigma Program.
• Improving Proactive & Preventive Legal Caresm: DuPont’s Proactive & Preventive Legal Caresm program was created in 1998 to help provide a competitive edge for DuPont by capitalizing on changes in the law, anticipating and minimizing future legal risks, and identifying best practices for managing current liabilities. Once again, at its core, this program asks DuPont Legal and its Primary Law Firms to work together to contribute to the client’s bottom line through creative business solutions. DuPont believes the more lawyers know about their client’s business, the better they can spot future legal issues that will bring value to the client.
• Developing Legal Practice Groups: The continuing evolution of DuPont’s Legal Model includes establishment of legal practice groups that are subject-matter networks organized to work collaboratively by sharing resources, information, work product and best practices. Through the practice groups, DuPont expects to achieve greater efficiency and improved results through greater use of technology to collaborate, capture historical perspectives, and eliminate redundancies.
• Applying the Model to Patent and Trademark Law Firms: The DuPont Legal Model was originally conceived as a litigation-driven program. As it has evolved, DuPont Legal has sought to apply it to its outside international intellectual property law firms. For example, DuPont has selected law firms that can do both patent and trademark work and has hired no more than one primary firm per country. The program has improved efficiencies and teamwork, and DuPont will continue to modify the intellectual property program based on the proven successes of the DuPont Legal Model.

DuPont’s new and revised 70-page Model addresses critical issues with respect to law firm relationships that will be of benefit to law departments large and small. The fundamental elements of the DuPont Model — law firm partnering, discipline and proactivity, etc. — can be applied to any company, regardless of its size, which is interested in increased efficiency and results in its relationships with law firms.

The 2001 DuPont Legal Model marks an evolution of its 8 year-old legal framework based on results achieved and lessons learned. DuPont Legal has achieved positive results through implementation of the Legal Model but continues to seek greater excellence in its outside law firm partnerships through the evolution of the 2001 Legal Model. DuPont has developed a revised Model that will continue to revolutionize the practices of large and small companies, and to shape the delivery of legal services by law firms. The DuPont Model will no doubt continue to serve as an example and to be embraced by corporate law departments as they are charged to reinvent themselves in a more competitive business environment. Companies throughout the country, both large and small, can continue to learn from what has worked well for one of -America’s largest and most successful companies.

Copies of Leaps & Bounds may be purchased from Crosby Marketing Communications (telephone (410) 626-0805) for $39 plus shipping and handling per copy. This book is a must buy for Corporate Legal Departments and Law Firms.

Glanton, Richard H. and Halpin, Sean M. “The 2001 DuPont Legal Model Leaps Ahead.” Book Review. The Metropolitan Corporate Counsel, March 2001, p. 35-38.

Richard H. Glanton is a Partner in the Business and Finance Department of Reed Smith LLP. Sean M. Halpin is a litigation Associate at the firm whose contribution to this article is also acknowledged.

Primary Law Firms & Suppliers

Leaps & Bounds- The book

The Legal Model is a multi-faceted, highly integrated approach to the delivery of legal services, and Leaps & Bounds presents detailed portraits of the Model’s cornerstones: Strategic Partnering, Information Technology, Early Case Assessment, Diversity and Metrics. Each is given its own chapter so that readers receive a complete picture and a useful blueprint for applying the Model to their own organizations.

Lessons Learned

Leaps & Bounds also contains a chapter devoted to the lessons learned since the Model first appeared in 1992, including many that will be of interest to any legal professional:

• Early Case Assessment is the most effective when it emphasizes discipline, proactivity and client involvement.
• Alternative Fee Arrangement should serve three goals: efficiency, cost control and result.
• Performance Metrics add precision, discipline and credibility, and are an effective tool for driving continuous improvement.

For more information about Leaps & Bounds or about the DuPont Legal Model, contact: Thomas L. Sager, Vice President & Assistant General Counsel, DuPont, (302) 774-3017, thomas.l.sager@usa.dupont.com.

Leaps & Bounds is $39, with an additional charge of $2.50 per book for shipping and handling. Maryland resident must include $1.95 per book for sales tax. Call (410) 626-0805 to place an order.

Legal Management “New Book Presents Modern Portrait of DuPont’s Legal Model.” Association of Legal Administrators, Legal Management, March/April 2001, pp. 128.

Leaps & Bounds- The Book

A common reaction to Six Sigma is that, whatever its value when applied to the manufacturing settings where it originated, it does not translate well to transactional functions, such as the practice of law. Our two years of experience suggests otherwise. Analytically, the statistical and organizational principles underlying Six Sigma apply naturally to a broad array of legal functions. The challenge is how to identify those functions and to translate concepts originally conceived in an engineering environment to a company’s legal department. We trust that our experience at DuPont Legal demonstrates that this translation effort is time well spent.

SIX SIGMA–HUH?

First, some basics. Six Sigma is a methodology focused on improving processes. The term “six sigma” is a statistical measurement, signifying 3.4 defects per one million opportunities for failure. By way of comparison, four sigma is an average process: it equates to about 6200 defects per one million opportunities. Another example: three sigma is equivalent to one 
misspelled word per 15 pages of text, whereas six sigma is equivalent to one misspelled word per 300,000 pages. Thus, when we say Six Sigma, we mean best in class, a virtually defect-free process.

To define the term “defect,” we must determine a customer’s expectations. The customer is the intended beneficiary of any given process, whether it be the purchaser of the product created or the user of the service provided. If the customer’s goal from a given process is quick delivery, then slow delivery is a defect. If the customer’s goal is low cost, then high cost is a defect. Six Sigma efforts strive to maximize customer satisfaction and, hence, maximize quality by driving quality at the front end rather than playing catch-up at the back end after failure has occurred.

Six Sigma reports to be different from previous quality initiatives in its dedication to rigorous scientific proof. Six Sigma reduces all processes to a common statistical formula: a sigma value signifying x number of defects per unit. To satisfy Six Sigma rigor, process improvements must then be statistically proven to improve that sigma value. Thus, Six Sigma trainees learn to use such tools as process mapping, failure mode and effects analyses, standard deviation calculation, and related methods to ensure that the savings we think we are seeing and hope we are seeing are in fact realized.

Six Sigma, in short, represents the maximum performance a process can feasibly obtain. But Six Sigma is more than a formula. It is a culture shift. It drives an organization to drive all of its processes toward total quality and to join all its personnel in this mission.

GETTING STARTED

Six Sigma begins with training–and lots of it. A company’s Six Sigma army consists of “Champions,” “Green Belts,” and “Black Belts.” As implemented by DuPont, Champions receive one week of training; Green Belts, two weeks; and Black Belts, four weeks, all conducted by outside Six Sigma experts. The training is essentially an intensive primer in statistics and process management with plenty of homework and both individualized and tag-team efforts at actual process improvements.

At DuPont, the Champion’s role is to quarterback a business unit’s Six Sigma effort by defining its Six Sigma goals (amount of savings, numbers to be trained, areas of application), identifying its Black Belt candidates, removing cultural, institutional, and other barriers to implementation, and creating a sense of urgency and optimism in support of the unit’s efforts. Black Belts are the foot soldiers who must complete four to six major projects per year with annual savings of about $175,000 per project. Green Belts work with Black Belts on ad hoc projects that are typically smaller in both scope and forecasted dollar savings.

At DuPont Legal, Black Belt candidates are culled from attorneys and staff who possess some technical/scientific competence, familiarity with legal processes, a facility for bottom-line, business-like thinking, and, perhaps most important, a willingness to accept with good humor the inevitable ridicule of peers and to pursue action that threatens the legal status quo.

IMPLEMENTATION AT DUPONT

So how has Six Sigma played out at DuPont Legal? Quite well thus far, we think, thanks largely to three factors.

First, this initiative, like no other, has the full support of DuPont’s senior management. A high degree of focus, intensity, resource commitment, and accountability at the executive level has greatly facilitated the rollout of Six Sigma within DuPont Legal and elsewhere. To that end, how we perform relative to our Year 2000 Six Sigma goals in DuPont Legal will directly affect everyone’s variable compensation. That’s right, eveyone: lawyers, legal assistants, office managers, human resources professionals, and staff. This initiative also includes financial incentives for extraordinary contributions by our law firms 
and suppliers.

Second, most of our personnel view Six Sigma as an opportunity to become more knowledgeable about and aligned with the company’s core business values and processes. This viewpoint has proven to be a tremendous motivator for many.

Third, because of our strategic partnering relationships with DuPont’s network of primary law firms and suppliers and our previous collaborations on metrics in support of the DuPont Legal Model, project identification and implementation have occurred in the spirit of continuous improvement. Everyone (both inside and outside) focuses on the right solution for the client, in this case DuPont. That focus may mean fewer resources allocated to a given task. But we all learn from the process and become more competitive in our respective marketplaces. This focus also explains, in part, why we chose two professionals from our outside network to join our Six Sigma effort and to become Black Belts, to ensure that DuPont sees through the eyes of valued partners how to best implement these projects to ensure support from our firms in the field.

CORE PRINCIPLES

Almost two years of Six Sigma experience have left us eight core principles that drive our efforts within DuPont Legal–principles that, we believe, could similarly aid any other legal organization’s embrace of Six Sigma.

Identify Processes 

Six Sigma is, at bottom, a methodology for measuring and improving process capability. For starters, then, the legal Black Belt must seek out legal processes, by which we mean functions characterized by repetitive, recurring steps. How the department stores litigation case files, how the department purchases deposition transcripts, and how the department compiles company business records for production in lawsuits are all processes susceptible to Six Sigma analysis no less than how a product is made or shipped.

Start with Paper

All legal processes can generally be grouped into two categories: (1) paper-driven processes, such as how the department collects and maintains litigation documents and whether the department maintains records in paper or electronic form, and (2) people-driven processes, such as how efficiently attorneys take depositions and what role local, as opposed to national, counsel should play in pleadings preparation. Our experience suggests that it is best to focus initial Six Sigma efforts on paper processes. The reasons? First, Six Sigma philosophy frowns on variability, and paper processes often lend themselves to standardized process improvements that necessitate little tolerance for variance: thou shalt image, thou shalt retain these categories of litigation files but not those, thou shalt use this copying vendor but not that vendor, and so on.

Also, paper processes often yield the quick victories, the low-hanging fruit that Black Belts seek out to achieve the early Six Sigma success stories that are essential to building confidence in the company’s effort. Third, proposed improvements in paper processes tend to encounter less resistance than changes in how people behave, attorneys often being of the view that how they spend their time is sacrosanct with no room for adjustment.

Accordingly, the legal Black Belt’s first trip is often to the company’s records custodian. He or she knows how paper processes operate in the legal department, has already compiled much of the data needed to measure process defects and improvements, and, most important, has pent-up opinions about what works and does not work in the legal function and has likely been frothing to share those opinions.

Map the ProcessOf the analytical tools used in Six Sigma, we have found process mapping most pivotal to successful legal projects. The concept is simple: diagram, in flow-chart fashion, each step in the legal process under review, such as how a pleading winds its way from outside counsel to in-house counsel to client to open litigation file to closed litigation file and so on. Done correctly, the result is often multiple versions of a map: the process as we believe it exists, as it in fact exists, and as it should exist once defects are eliminated.

Mundane though it sounds, process mapping often yields dramatic results. Litigation paper, for example, typically travels through a legal function in mysterious, labyrinthine ways, often for no better reason than historical accident or unchecked bureaucracy. Defects abound, from redundant steps to wide variability to excessive paper touches. Eliminating such defects can yield substantial savings and efficiencies without any damage to company interests. Process mapping is also important for isolating both the specific process defect and the unit of measurement, whether it be cost (the dollars it takes to store a box of litigation paper), cycle time (the number of days it takes for clients to receive transcripts), or some other measurable unit.

Target Unconscious Spending 

Legal departments routinely take action without internalizing or even considering the costs of that action. Attorney A orders an expedited transcript when no case urgency exists. Attorney B retains all drafts of pleadings in her litigation file without 
considering the storage and processing costs associated with maintaining the file. Attorney C sends a pleading to a client simultaneously by mail, email, and fax, again for no apparent reason. Attorney D notices a deposition without analyzing why the noticed witness is material to the case, offensively or defensively. In each instance, the defect is not a questionable attorney decision but a nondecision, an action driven by reflex, not reflection.

Legal processes teem with such unconscious actions, not surprising given that careful analysis of the costs and benefits of legal action is rare. Six Sigma, as a statistical methodology, can help impose rigor on legal decision-making and better discipline legal action. Six Sigma forces us to ask why process steps are as they are. Absent good reason, those steps are eliminated. In the course of their analysis, Black Belts routinely stumble upon mindless process steps in which inefficiencies have gone unnoticed. Better yet, eliminating such inefficiencies is often pain-free: defects are eliminated, and money is saved, without any corresponding erosion in the quality of legal services.

Apply Information Technology 

Six Sigma trainees are taught to focus on process inefficiencies first and solutions later. In practice, however, information technology fixes often bubble up early on in legal projects. Analysis of a litigation document repository, for example, instantly stimulates the question, “Why are we not imaging?” Purchasers of transcripts soon wonder, “Why are we ordering paper transcripts when computer disks are available, cheaper, and more readily searchable?” Likewise, legal processes that seem needlessly slow cry out for technology applications that reduce cycle time. By employing technology to improve legal processes, Black Belts not only further their Six Sigma goals, but also help motivate a company’s attorneys to become more adept at using litigation technology.

Strive for Absolutes

The best Six Sigma legal projects typically lend themselves to absolute, standardized guidelines. Many aspects of the practice of law are poor candidates in this regard because they necessarily involve judgment and case-specific analysis. How to cross-examine a trial witness, which expert scientist should testify in this case, and which affirmative defense is best argued on summary judgment are all functions that require attorney discretion and are not the best targets of initial Six Sigma projects. It is better to start with projects that are amenable to across-the-board, absolute process mandates: thou shalt electronically image collection documents; thou shalt retain litigation records for x years; thou shalt reimburse outside counsel for this form of deposition digest but not for that form; and so on.

Of course, attorneys will reflexively resist most any absolute mandate as a shackling of their creative freedom and will insist on exceptions to rigid Six Sigma rules. Don’t buy it. Plenty of legal processes are ministerial, have no effect on legal outcomes, and lend themselves well to corporate mandates that are binary (lights on, lights off), enforceable, measurable, and controllable.

Leverage Learnings or Don’t Change the Subject

Upon completing a Six Sigma legal project, the Black Belt’s strong temptation is to turn next to altogether different legal functions. Resist that temptation. Six Sigma successes can expand exponentially when a company leverages project lessons to similar functions elsewhere in the business. Thus, upon completing a statistical analysis of which litigation files a company should retain at the conclusion of a lawsuit, the next question should be whether the resulting guidelines could improve the process for retaining nonlitigation files, active case files, or even files outside the legal area. By leveraging projects in this way, the legal department can pioneer Six Sigma’s application to transactional processes company-wide.

Be a Forum for Pent-Up Grievances

Most legal departments feature their share of attorneys and staff who have long been thinking along Six Sigma lines without knowing it–identifying process defects and wondering why we practice law in the inefficient way we do–but have lacked a forum in which to voice their insights. The Six Sigma legal team should be that forum. Pent-up pet peeves are often the stuff of superb Six Sigma projects. Create a suggestion box or chat site on the company intranet. Call town meetings to invite project suggestions. In these and other ways, the legal team should energize the entire legal function around common Six Sigma goals and thereby harness existing project concepts before feeling obliged to generate projects anew. This initial invitational step should yield promising projects, lighten the creative burden facing the Six Sigma team, and promote a climate of inclusion and buy-in to the legal Six Sigma effort.

IT WORKS FOR US; HOW ABOUT YOU?

Do we commend Six Sigma to others in the corporate legal world? Yes, for some. Six Sigma principles will resonate with those who believe legal professionals should bear some responsibility for their client’s bottom-line success, with those who think that legal services, no less than other services, can improve through process analysis, with those who agree that process is not something to create anew every time a new lawsuit or commercial transaction surface, and with those driven by a commitment to continuous improvement and who recognize that the complete lawyer brings more to the table than legal acumen.

Of course, your Six Sigma efforts will meet plenty of skepticism, from attorneys in particular. Expect such reactions as “Isn’t this just the newest corporate flavor of the month?” and “Maybe this works fine in an assembly plant, but not in the practice of law.” As we trust we have demonstrated here, such reactions don’t move us and shouldn’t move you. Fairly answering such doubts requires a mixture of balance (conceding that Six Sigma does not apply to all legal functions), proof (in the form of actual Six Sigma successes), persuasion (demonstrating analytically that the principles apply), and patience (tolerating, even humoring, those skeptics whom you can never hope to turn around). The fact remains that not everything an attorney does is impervious to process improvement. And the fact that core features of Six Sigma–attention to efficiency, elimination of process defects and redundancies, and striving for process standardization–are countercultural for lawyers is merely one more reason to embrace Six Sigma, because attorneys often are most in need for the wake-up call that Six Sigma provides.

Our experience at DuPont suggests that Six Sigma translates well to the legal function. That is not to say it translates indiscriminately to all legal processes; it does not. But with careful application, the payoff can be significant. Indeed, by getting its own Six Sigma house in order, the legal function can lead a company’s effort toward efficiency and improvement and thereby round out its usual image as a drag on company resources.

We at DuPont Legal are by no means experts in the application of Six Sigma. But it takes no expert to recognize its value to the practice of law. 

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Reprinted with permission of the authors and the American Corporate Counsel Association as it originally appeared: . “Six Sigma: Positioning for Competitive Advantage,” ACCA Docket 19, no. 1 (2001): 18-27. Copyright © 2001 Thomas L. Sager, Scott L. Winkelman and the American Corporate Counsel Association. All rights reserved. For more information or to join ACCA, call 202/293-4103, ext. 360, or visit www.acca.com.

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What challenges does moving to the UK bring for US businesses?
There’s an assumption that things will be pretty similar to the US but there are still cultural differences. I think the biggest difference is the legal system. The UK is nowhere near as litigious as the US, where it’s a massive multi-million dollar industry. There is also greater expectation on standards of client service. US firms expect speed of response. If you say you’ll call back in an hour, that call will be expected in one hour’s time. 

I’ve been working for over ten years with US companies. In that time we have increased our emphasis on service delivery and responsiveness. Assumptions are made that things will be done in a certain way because that’s how they’re done in the US, and we have to be sensitive to that. Use of language can be key. For example, in environmental law we talk about the clean-up of contaminated land in Europe. In the US, it is known as the Superfund legislation. It makes a big difference if both parties know they are talking about the same thing! There also used to be a greater element of proactivity. A US client would expect us to come forward with ideas, such as a new tax saving scheme or a government grant that might be appropriate and available – basically things that would either make them or save them money. Or, if we heard that one of our clients was looking to buy or sell a business, and there was a US element involved, they would expect us to look out for those opportunities.

Has adapting to the US market changed your business practice in general?
Yes. All those points above have trickled down into the way that we provide service. Principles that we have learnt in the US and, in particular, looking at the relationship between a US company and their external lawyers, have been adapted into our client care programme. Independent partners make regular trips to clients to see how we are performing, and if there is more we could be doing. Through acting as DuPont’s principal law firm, we’ve become Europe’s leading expert on partnering between inhouse lawyers and external law firms. That’s all about entering into long-term relationships to look after each other’s interests. We’re talking about very big commitments on the part of the client and law firm in terms of how much is put into the relationship both personally and financially – investment in technology for starters. It’s the top end of client relationship management. We’ve been partnering DuPont for over four years, but recently there has been a huge increase in interest from companies who have read about the model. BBA, the international engineering and aviation company, is a good example. They came to us two years ago and said they wanted to enter into a partnering relationship. They have that relationship with their manufacturing suppliers and wanted the same thing with their law firm. All our subsequent work for them originated on the back of our ability to provide that service. 

Are we seeing this approach being adopted across the board?
Ten years ago, it was pretty much the case that the “magic circle” (leading City law firms) did all the work for US subsidiaries based in the UK. But, as those firms have become more involved with international transactions and cross- border mergers, their approach has changed and they have relinquished their grip on the day-to-day work – the real estate, employment law, contract and commercial law. We have been one of the prime beneficiaries of that shift. One of the complaints of US clients is that the magic circle firms’ service ends on closure of the deal. What they want going forward is the everyday support of their businesses across a full range of services. 

We have another advantage in being multi-sited. It’s ironic, but the fact that the US covers such a vast geographical area means that clients are used to consulting lawyers close to their business, wherever it is. That translates to the UK. Very often a US client will see that they have a problem in Manchester and will want a local lawyer to deal with it – similarly with financial services in London. We are within one hour’s travelling distance of any UK destination. The North East probably has the biggest concentration of chemical companies anywhere in Europe. We’re able to service them from our local offices and clients value that. 

What is your strategy for helping clients move into the US market?
We’ve taken a deliberate decision not to open an office in the US. A lot of our competitors have a representative office in New York. That’s fine if you’re heavily focused on capital markets, securities and derivatives. You need to have a Wall Street office, and you need to have that plugged into your network. Our clients tend to be more heavily involved in the world of trade, which is not restricted to one particular area. So they expect us to refer them to a leading or specialist law firm in whatever part of the US is appropriate – for example, if it’s an anti-trust case, for us to refer them to an expert in that field. Our approach has been to build up a huge knowledge of the legal market in the US, which enables us to make sure our clients are properly represented. In terms of the strategy going forward, it’s to build up our relationships with law firms in various regions of the US, and through our specialist groups, with leading lawyers in each field. It’s a question of building up networks and alliances rather than having a physical presence.

How is the global marketplace for legal services set to change?
A major trend to impact the market is the increasing number of legal services online. The old generation of in-house lawyers chose their law firms through recommendation and people they knew – effectively the “club.” Those days are disappearing fast. Now, some people’s first port of call is to start on the Internet and look at a firm’s Web site. www.elaw.com, to which we are one of a handful of European providers, is one example. It’s a Web site that provides legal products, such as precedents or research, to in-house lawyers. If they want to use our material, they download it and then pay a fee, and we receive a royalty. There are also legal auction sites. Companies wanting to set up a business in Europe will put that online, and law firms will bid for the work. The flip side, of course, is the lack of personal contact in that sort of approach. Online auction buying is based on price and availability. There are still a significant number of clients who maintain that people buy people, so it’s hard to predict how far the online market will take off. It’s something we are keeping our eye on. The opportunity for us at present is to get access to, and visibility with, companies we currently don’t act for.

For more information, e-mail paulsmith@eversheds.com

Smith, Paul. “Talking State Side.” Eversheds, Law in Business, Winter 2000, p. 2-3

Today, most dynamic corporations are committed to the core values of diversity and valuing people.  Business is so competitive that no company can afford to overlook half of the population.  Corporations and law firms can not survive without the creativity and new thinking that diverse teams ensure.  The challenge is in effectively attaining diversity goals – developing substantive legal, leadership and management skills in populations that have historically been overlooked by the legal community.  For example, how do corporations guarantee that women’s accomplishments are publicly recognized, particularly when women and men seem to have different approaches to self-promotion?  How do we help outside counsel develop into the rainmakers and managers law firms needs to compete?  How can the profession increase the number of women in positions of general counsel, associate general counsel, managing partner, executive committee member and CEO?

The DuPont Women Lawyers’ Network, a joint effort between women in-house and outside counsel dedicated to the development and advancement of women leaders in both the corporation and the law firm, offers a new approach.  The Women Lawyers’ Network grew out of DuPont’s highly publicized legal model.  In what was then termed “convergence,” DuPont reduced its number of outside law firms from nearly 350 to approximately 35.  Outside law firms (known as primary law firms or PLFs) were selected on the basis of a number of criteria, including competence, results, technology and diversity efforts.  The PLFs have designated geographic areas, so that competition among them is minimal.  With DuPont’s help, the PLFs market to each other and jointly market the PLF firms and the DuPont Legal Model.

In an effort to increase the leadership of women lawyers within the DuPont Legal Model, DuPont attorney Lisa Passante, with the assistance of Felice Wagner of Sales and Service Solutions and Suzi Pomerantz, led a two day Conference on Women and the Practice of Law for DuPont.  The 1998 conference, attended by approximately 140 in-house and outside women, was an overwhelming success.  The speakers were inspiring and the discussion among attendees free-flowing.  Best of all, by coming together, women’s diverse voices were heard without interruption or condescension.  With the tension of communicating in a man’s world eliminated, the energy of the group increased ten-fold.  At least for those two days, attendees realized that if they lost their fear of supporting each other, women could progress exponentially.  Perhaps the words of Gloria Steinem, from her book, Outrageous Acts and Everyday Rebellions (Henry Holt and Company, Inc., 1995) sum things up best: “If you travel around this country, you can’t miss it: In the ‘80s and ‘90s, networking is what consciousness-raising was to the seventies.  It’s the primary way women discover that we are not crazy, the system is.  We also discover that mutual support groups can create change where the most courageous individual woman could not.”

As a result of the conference, the DuPont Women Lawyers’ Network was born.  The network has a three person leadership team consisting of founders Passante, Pomerantz and Gretchen Bender, and five steering committees: marketing, networking, mentoring, communication and promoting women (dealing with issues such as compensation and fair measure).  The goal is to positively impact the business of DuPont by promoting legal excellence through the success, development and professional advancement of the women lawyers representing DuPont.  In short, the women lawyers at DuPont and its primary law firms have joined together to collectively network, market, mentor and advance the careers of women lawyers.  This effort is fully supported and encouraged by DuPont’s top management, and has been overwhelmingly embraced by a majority of DuPont’s primary law firms.

Although the organization is in its infancy, it has achieved some positive results.  It has designed a women lawyers’ directory; the group distributes a monthly newsletter that publicizes the achievements of is members; and in-house lawyer Tamera Fair has organized popular monthly meetings about career development issues for in-house women.  The network is beginning to study gender bias in lawyer evaluations at the primary law firms, and it is planning a dynamic 1999 conference to keep the spirit and enthusiasm going.

Obviously, not every in-house corporate department has a formalized network of lawyers from which to build.  DuPont created a network out of an existing mixed-gender organization, so can other corporations.  It may take some courage to be the first to organize a network in your firm or your in-house department, but once you do, you will not be alone in your enthusiasm.  Of course, there are professional women’s networks that already exist, such as the ABA’s Commission on Women in the Profession or the ABA Women Rainmakers.  While these networks are invaluable, support from women in your own organizations, who already have common ground, is critical.  Women’s networks support, encourage, nurture and create a whole new array of business and leadership development opportunities for their members.  Through joint effort with your business partners and other existing networks, you can exponentially increase you efforts to promote women and minorities in your companies and your law firms.

This article was submitted by Lisa M. Passante, Esq., E.I. DuPont de Nemours & Co., Gretchen A. Bender, Esq., Morris James Hitchens & Williams, and Suzi Pomerantz, Innovative Leadership International LLC.

Minority Corporate Counsel Association, Diversity & The Bar, August 1999, pp. 12-13.

For more information, visit Minority Corporate Counsel Association.

Those days, however, are changing. Because now, law firms nationwide can find both inspiration and recognition for their diversity efforts in a single source: the Thomas L. Sager Award. Created and bestowed by the Minority Corporate Counsel Association (MCCA), the Sager Award not only honors law firms whose innovative approaches have resulted in sustainable efforts to increase diversity, but holds up the best examples for others to follow in implementing their own programs – and in the process is working to build a critical mass of support for best practices throughout the industry.

Since its founding in 1997, MCCA has served as the nation’s premier organization dedicated to the concerns of diversity in the legal profession. As America’s chief advocate for the expanded hiring and promotion of minority attorneys, both by corporate law departments and the firms that serve them, MCCA is tasked with this prime directive: Make the business case for diversity. From the outset, the association has recognized that one of the best ways to show a nation how diversity is working is to seek out and highlight those individuals and organizations that are actively demonstrating that diversity, indeed, is making a qualitative difference in their legal endeavors.

Today, the Sager Award has become one of MCCA’s primary vehicles for bringing public recognition to innovative diversity. Established in 1998, the prestigious award is presented to law firms selected from across the country, whose pioneering approaches and practices are bringing about positive, long-term changes to the complexion of corporate law. The annual award was named for Thomas L. Sager, Associate General Counsel for the DuPont Company and for decades a driving force behind advancing the involvement of minorities and women in the nation’s legal profession. Mr. Sager’s groundbreaking work in creating the highly acclaimed DuPont Legal Model helped establish the principle of diversity as a valued means of expanding the potency of legal teams — and proved its validity as a crucial element for legal departments in their quest to maintain a competitive advantage. As a means of recognizing in perpetuity Mr. Sager’s relentless commitment to increasing diversity in the legal profession, MCCA named the award in his honor.

This year marked the first presentations of the Sager Award, with the inaugural group of winners introduced at MCCA’s annual Diversity 2000 Dinner Series, held in Chicago in April and Atlanta in May. Honorees presented at the Chicago dinner were the firms of Sanchez & Daniels, represented by partner Manuel Sanchez, and the firm of Sidley & Austin, represented by Latham Williams. Atlanta’s award winners were the firm of Holland & Knight, represented at the event by attorneys Raymond Carpenter and Reeder Glass; Kilpatrick Stockton, represented by Michael Tyler; and McGuire, Woods, represented by Gardner Courson. Additional honorees will be announced at upcoming Diversity 2000 Dinners held later in Washington, DC, were Akin, Gump, Strauss, Hauer & Feld, L.L.P. and Arnold & Porter.

By what criteria are firms chosen to become Sager Award recipients? The MCCA Board of Directors, which includes general counsel, corporate and senior counsel from some of the world’s leading corporations, makes its final selection after a detailed study of the strength, sweep and depth of the diversity efforts of law firms practicing in various regions of the United States, from East Coast to West Coast. The Board examines such areas of key concern as recruitment, retention, mentoring and promotion of minorities. It looks at a law firm’s collaborative efforts with community and bar associations. Most important, the Board seeks to single out for recognition those firms whose innovative practices have resulted in measurable, sustainable improvements.

And yet, the selection and presentation of the Sager Award is intended to serve a dual purpose, not only to spotlight individual achievements, but to heighten awareness of successful diversity efforts nationwide. What the MCCA Board of Directors hopes to accomplish through the award program is provide others within the legal arena with inspirational models for creating their own meaningful solutions. What it offers the industry is metrics for success. As such, the award program is an extension of MCCA’s greater mission: to research, analyze and disseminate the best information available for managing global diversity in the legal industry.

For the first part of that equation — research — MCCA broke significant new ground with its landmark 1997 survey of diversity in corporate law departments, the first such survey conducted on a national scale, resulting in the establishment of the first benchmarks for diversity in the legal industry. That pioneering study revealed that one out of every four law departments had no minorities on staff. How far has the industry progressed since the release of that seminal study? The answer will come shortly, with the completion of the third annual survey, due by the year’s end. That survey, expanded in breadth and scope for 1999, promises to break more new ground, embracing an even larger segment of the industry as MCCA widens its attempts to help law departments further understand the statistical underpinning affecting a range of diversity issues.

Following the release of the survey, in the first quarter of 2000, will be the publication of the results of MCCA’s years-long, far-reaching research project — a project that, for the first time, will provide law departments with a comprehensive, phase-by-phase outline for implementing a diversity program. Showcasing success stories gathered from progressive firms and departments nationwide, the report will set the framework for an extended dialogue on diversity, giving voice to those who were at the forefront, assisting those whose programs are only just emerging. Moreover, the report will inaugurate a whole new national discussion by establishing the first industry-wide “best practices,” covering areas of critical concern, from recruitment to retention to promotion, and enumerating the actions required for law departments to improve their diversity efforts.

Rather than handing down a set of standards indelibly etched in stone, the best practices contained in the report should be viewed in essence as a chalkboard list, a work-in-progress subject to modification. Additional refinement to MCCA’s best practices will come through the association’s planned creation of a National Law Firm Diversity Advisory Committee. Composed of notable leaders in the field of corporate law, seated together with Sager Award winners representing each region of the U.S., the committee, as its name implies, will act as a national resource for law firms seeking expert guidance and wise counsel on a range of diversity issues, from how to draft a viable plan to finding cost-effective access to qualified minority candidates. Aiding the committee in its global resource role will be MCCA’s new interactive Web site. Going live by September, the site will serve as a world-wide portal for diversity in the legal profession, opening access to a wealth of online research, discussion groups and publications, including digitized articles from the association’s professional journal, Diversity & the Bar. Moreover, the Web site will become a bridge to information offered by other strategically allied organizations, including national minority bar associations and their counterparts among minority law students. And eventually the site will become the home of the MCCA/Sears Job Bank, an innovative enterprise that will allow minority attorneys, law students and minority-focused recruitment firms to post a host of job-related messages, from resumes to openings, thus giving law departments and firms a quick and effective means of reaching the candidates they seek in their quest to fulfill their diversity commitment.

Like the Sager Award, the Web site is yet another broad platform by which MCCA can put the most innovative, most successful approaches to diversity on display for the legal world to behold, study and emulate. Like the Sager Award, it is a presentation of best practices and practitioners, offering inspiration for all who are looking to improve the way they recruit, retain, mentor, sustain — for all who are actively working to move diversity from theory into application. Ultimately, like the Sager Award honorees themselves, it offers living proof of the validity and value of diversity to law departments everywhere.

Johnson, Jr. Lloyd M. “The Sager Award: Advancing Diversity Strategies that Work.” The Metropolitan Corporate Counsel, July 1999, p. 30.

ACCA Diversity Pipeline Kit

MCCA Establishes an Award to Recognize a Champion of Change

Shomper: We’re always looking for opportunities to improve and progress. Currently, we have several things underway. One is the move toward leveraging our network of primary law firms in nonlitigation areas such as transactional work, real estate, and general commercial work. Historically, our program was driven primarily by litigation needs, but we have substantial needs as well in nonlitigation areas.

Another current initiative is to evaluate our global legal needs. We have already designated primary law firms for Mexico, Canada and the UK, and we are in the process of evaluating how to tailor our program in a way that makes sense in light of the significant differences in legal needs and practice in those three countries and any other countries where we may designate primary law firms.

In addition, we’re actively looking for ways to measure our performance both inhouse and outside. A major initiative this year will be to identify appropriate metrics for all facets of our program. We want the ability to measure the overall success of our program, to measure compliance with various initiatives such as early case assessment, and to make meaningful comparisons among lawyers and law firms so we can identify best practices and share those with others.

Finally, we’re continuing to actively promote diversity through the regional Minority Job Fairs, a Minority Counsel Conference, and a Women’s Conference.

Editor: A number of companies in recent years have moved toward convergence and partnering. In your view what does it take to have a successful partnering program? 

Shomper: First and foremost, it takes a high level of commitment by both law firms and the corporate client. There is an upfront investment in time and money to create this sort of program. And it must be a long-term and continuing commitment, not a temporary fix. Simply paring down the number of approved law firms is not nearly enough; that’s just the starting point. And simply paying lip service to the partnering concept is not enough. Both client and law firm have to show their commitment through actions as we talked about earlier. And management support is essential. Direction and attitude start with the leadership at both the corporate client and the law firm.

Second, it requires a fundamental attitude shift in the way we think about client/law-firm relationships. Both the corporate client and the partnering law firms have to be progressive in their thinking, open-minded to new ideas, and willing to take some risks. The ultimate goal should be to have a relationship where the client and law firm are looking out for each other’s interests and are working together toward common goals to their mutual benefit. The entire program should be designed with that goal in mind and obviously needs to be tailored to each company.

Third, in starting a program the corporate client has to be willing to break established ties to firms that are unwilling to engage in this sort of program, and there are many law firms that do not have the combination of legal expertise, innovative thinking, flexibility and risk-taking qualities that are needed.

Fourth, everyone should recognize that it is a dynamic program, not a static one. The program needs to be continually reevaluated from top to bottom, and both parties need to be flexible enough to adjust as necessary. The relationship with each law firm and supplier should be assessed at least annually, and changes should be made if they are warranted. Hopefully, that won’t be needed very often, but the relationship may not work out as each party expected or there may be changing needs driven by changes in the corporate structure or legal needs of the company that can’t be serviced by the existing firms.

Editor: Do you see any trends in the corporate legal industry affecting future relations between corporate clients and law firms?

Shomper: Judging from the number of inquiries we get at DuPont Legal from other companies about our program, I think it’s fair to say we’ll continue to see a shift toward convergence and partnering in legal departments, both large and small. And that’s borne out by recent surveys of general counsel I’ve seen. In fact, convergence and partnering are probably fast approaching the norm, rather than a trend.

Internal cost pressures in law departments will almost certainly continue and will require law firms to be flexible and innovative in their approach to the practice of law. I think many clients will look for alternative fee proposals for example, particularly fee proposals that tie compensation to results or some other predefined goals. Lawyers and law firms that prosper will be those that can come up with creative business solutions to legal problems for the client rather than treating the lawsuit in a vacuum as a single case.

Finally, the pace of legal practice in the corporate setting will only accelerate. The amount of information that has to be digested is phenomenal and is increasing at an exponential rate. And with the increasing globalization of business, decisions have to be made quickly for businesses to remain competitive. What this means for lawyers who serve corporate clients is that legal advice cannot be delayed. Our business clients don’t have the luxury of waiting for a ten-page memorandum explaining the intricacies of a point of law with numerous qualifications and reservations. They have to act now and they need concrete legal advice. Too many lawyers fail to recognize this, and we become barriers rather than problem-solvers. Lawyers who recognize this and who can provide sound judgment and fast legal analyses will be highly valued by their corporate clients.

Editor: We appreciate your willingness to share with our readers information about the DuPont model.

Shomper: If your readers would like more information, they can call me at (302) 774-6403. They can also call FTI at (410) 224-1469 to order, at a small cost, a copy of our 1997 book about the program A New Era – DuPont Legal Model.

Shomper, James D. “DuPont Network Orchestra Plays a Winning Tune.” Networking Interview – Managing a Law Firm Network, Part II. The Metropolitan Corporate Counsel, June 1999, p. 27.

The Benefits of Strategic Partnering

Part I

Shomper: I came from White and Williams in Philadelphia to DuPont in 1990. My area of practice is litigation with an emphasis on antitrust, product liability, class actions and mass torts. I got involved in the DuPont Partnering program in late 1992 when I was asked to work on the committee responsible for the design of the DuPont program. In 1998, I assumed my current position as Manager of Law Firm Partnering. I am involved in selecting DuPont primary law firms around the country and in maintaining and improving the operation of our law firm network. I spend about half my time on the law firm partnering side and half on managing antitrust and large scale commercial litigation.

Editor: What does partnering mean at DuPont? 

Shomper: In 1993, our design committee was given the task of getting control of legal department spending on litigation. We decided that we would be better off with a more organized approach to purchasing legal services, rather than just hiring law firms on an ad hoc basis when cases come in.

We concluded that if we had a more limited number of law firms, we could develop better relationships with those firms. Our counterparts on the business side of DuPont had already been doing this since the 80s. We simply took those practical business concepts and applied them to the purchase of legal services. Our operating assumption was that by forming close relations with a select number of innovative law firms we could better control our costs while also elevating the overall quality of legal representation.

I would define partnering as having a long term relationship with a limited number of highly motivated and progressive suppliers who can identify with us as a company, who get to know our business, who keep our interests at the forefront and work in a supportive and cooperative way with us and the other law firms in our network — as part of a team.

It is a business-oriented program designed to achieve greater efficiency, cost control and responsiveness to the needs of our business clients. And like any relationship, a partnering relationship is a dynamic one, constantly maturing and improving.

Editor: Lawyers can be overly cautious. Do you feel that the Partnering Program promotes more risk taking? 

Shomper: When I talk about strategic partnering I would normally talk about risk taking. It is an essential component of a partnering relationship. Certainly collaboration and networking are important, but so is creating an atmosphere where law firms are willing to take risks. The goal in any true partnering relationship is to get to a point where there is mutual sharing of risks and rewards. For instance, if you want to use alternative billing arrangements successfully as part of an ongoing relationship with a law firm, you have to have a certain measure of trust between the law firm and the client. It’s easier for law firms in our network to entertain alternative fee arrangements because they know that we are going to treat them fairly if they take a risk and for some reason their good faith effort craters. 

Likewise, the firms recognize that we are willing to accept a degree of risk. Therefore, they don’t run up large bills turning over every single rock, trying to take every single deposition and serving document request after document request. There may be some bet-your-company cases where you can justify turning over every stone, but the vast majority of law suits do not rise to that level.

And, in the end, the long-term commitment to the relationships allows our law firms to offer creative business-focused solutions to our legal needs. There is a certain element of risk in offering creative solutions like these, and the strategic nature of our relationships facilitates this risk taking.

Editor: What do you do to inspire a partnering spirit? 

Shomper: There are many ingredients. One is communication. We are all linked electronically so that it is easy for us to talk to one another. We also have annual meetings of the entire group where they have a chance to network and get to know each other.

DuPont demonstrates its commitment to the relationship by various means, including paying legal fees electronically within 14 days, by actively promoting its primary law firms with other prospective clients, by seeking opportunities internally for our law firms, and by financial incentives, to name only several. Importantly, most of our legal work goes to our partnering law firms – over 90% of new matters goes to them. Likewise, the law firms demonstrate their commitment by providing high quality, cost-effective representation, by looking after DuPont’s interest beyond the immediate case they might be handling, by investing substantial non-billable time in our program, and by working collaboratively with other DuPont primary law firms. 

Editor: DuPont makes significant demands on the primary law firms. Attendance at meetings and other similar activities involve nonbillable time. Do you have a way to recognize law firms for making a special effort? 

Shomper: We have what we call Challenge Awards. Each year, just before the annual meeting with our primary law firms and service providers, we will determine which of them have made the greatest contributions. We give total cash awards of up to $2,000,000 annually. In this last year, we gave seven awards at the annual legal meeting. The awards were for such things as achieving an advantageous settlement in a case where we were the plaintiff and for contributing to our diversity objectives by helping make our Minority Conference a success.

Editor: Another aspect of the DuPont Partnering Program is that you have made a tremendous effort to help the primary law firms and service providers develop new business. 

Shomper: Yes, at DuPont, we see our relationship with those in our network as a two-way street. We encourage our primary law firms to market themselves to other companies by leveraging the significant experience they have gained in working within the DuPont system. They know that they are part of a group of some of the best and most innovative law firms in the country. As a result, they have developed such confidence in one another that a lot of work gets referred from one primary law firm to another that doesn’t have anything to do with DuPont.

We advertise the merits of the primary law firms and encourage them to advertise their relationship with us. We prepared some basic templates for advertisements for use by our firms and have picked up a big share of the costs of placing those ads. We welcome visits by companies to our offices in Wilmington to discuss our primary law firms and service providers. Over the last three years about 125 companies (most of them in the Fortune 500) have dropped by or called us to discuss in depth our Partnering Program and the DuPont network. Next month we will be sitting down with three companies. We plan to review our program with them from top to bottom. The only thing we ask of these companies is that they come with an open mind and at least consider using our primary law firms. There is no absolute commitment.

Every time we speak at a public function, we always make an effort to put in a positive plug for our law firms because we are very proud of them and of what they have done for us.

There is a significant volume of referrals within our primary law firms. In fact, some firms have gotten more work from these referrals and external marketing than they have from DuPont cases.

Editor: Tell us about your early case assessment program?

Shomper: Within 120 days of getting a case, we do an early case assessment. The inhouse lawyer, the outside lawyer, and the business client participate in this process. They consider a series of questions. What do we know about the case? How strong is the case (to the extent this can be determined at that time)? What should our strategy be? Is it a case that we ought to be looking at trying to settle early or is it a case that we need to litigate because it involves some overriding principle? And, perhaps most important, what is our goal in the case from a business standpoint? It is a formalized and structured program, and it is done on every case – large or small.

Editor: Does the Partnering Program apply only to litigation? 

Shomper: A major emphasis of the primary law firm network is litigation. Tom Sager and I are making a continuing effort to get the nonlitigation areas more involved with our primary law firms.

Editor: Do you have a document that spells out the details of your relationship with your primary law firms?

Shomper: When we first retain a primary law firm, we send out a retention letter that spells out the relationship in very general terms. It covers such things as our billing guidelines and the appointment by the firm of an engagement partner.

Editor: Do you require the primary law firms to use task-based billing?

Shomper: Yes. By grouping the time spent on a particular phase of a case, we can compare the work of one firm with another. This would be very difficult if we had to go through 50 pages of itemized billing. It enables us to determine the time spent on a motion, deposition or other discrete activity and its cost. It helps to identify those firms and lawyers that are the most cost effective and to generate metrics that allow us to better understand how to improve performance. We can then share the approaches used by the most efficient firms with all our firms. Everyone benefits.

Editor: You spoke at an ACCA meeting in New York at which PeerPoint Technologies, Inc. discussed their software. It seeks to avoid conflict with law firms by assuring that bills conform to mutually agreed standards. Is this something that DuPont is investigating? 

Shomper: Yes. We are always looking at ways to improve our relationships with the primary law firms. For this reason, we are looking at the PeerPoint system, but to date have not made a decision on whether we will use it. 

Editor: What types of billing arrangements do your firms use? 

Shomper: Hourly rates are the most prevalent. I think everybody is comfortable with this traditional way of billing for legal services. We do use other arrangements. A key component of the DuPont program is use of Alternative Fee Arrangements. We are big advocates of AFAs, and have used them extensively. We have used flat fees for individual matters as well as for all work being done by a firm over a one year period. We have sometimes coupled a fee with a performance bonus based on achievement of our business goals.

Currently, about 25% of our outside counsel payouts are under Alternative Fee Arrangements. We encourage their use and have experimented with virtually every type.

Editor: Are you now paying all your primary law firms on a short turn around electronic basis?

Shomper: Yes. We are. Their bills are transmitted to us electronically on a monthly basis. We pay them electronically by deposits to the law firms’ accounts within 14 days, with the average turnaround time being about ten days. If there are adjustments to be made, we will make them in future billings rather than hold up the process.

Editor: Do you use any kind of generally available software in connection with the billing arrangements? 

Shomper: Yes, we use BillWiz.

Editor: DuPont has been a pioneer in using what has been called “unbundling.” Could you explain what this is and how it works? 

Shomper: We enter into master agreements with major service providers pursuant to which they provide services to our primary law firms and bill us centrally for these services. This assures a high degree of responsiveness, quality and uniformity of performance and a favorable price structure.

The alternative – retaining service providers in every individual case — is less efficient and more expensive in the long run. Unbundling allows us to establish partnering arrangements with these service providers — which run the gamut from copying to court reporting to document management to financial analysis.

Editor: Could you mention the service providers with whom you have “unbundling” arrangements? 

Shomper: For temporary lawyers and legal assistants, we use The Law Registry. For document management, we use QuorumLanier. For economic damages assessments, use of technology, and financial analysis, we use Arthur Andersen and Pricewaterhouse Coopers. For jury research, demonstrative evidence and some other marketing and communications consulting, we use FTI Consulting. For photocopying, we use IKON. For court reporting, we _use TranscribeAmerica/Alderson Reporting.

Editor: I understand that participating in the DuPont network is a wonderful educational experience for the primary law firms.

Shomper: They get to deal with cutting edge legal management issues like early case assessment and strategic budgeting and partnering. Take early case assessment, for example, several firms have used their experience in putting together and working through these formalized early case assessments as a marketing tool with other corporate clients.

To a large degree, our program provides a laboratory in which our law firms can experiment and gain experience in areas that can be cross-marketed. 

Editor: You mentioned earlier your willingness to meet with companies interested in learning more about the DuPont model. Are there other ways that our readers can get more information about the program? 

Shomper: They can call me at (302) 774-6403. I would be happy to answer any questions that they might have or, for a small cost, they can call FTI to order a copy of our 1997 book about the program A New Era – DuPont Legal Model authored by our Associate General Counsel, Tom Sager and coauthored by Dana Mayer. FTI’s phone number is (410) 224-1469.

Shomper, James D. “DuPont Network Orchestra Plays a Winning Tune.” Networking Interview – Managing a Law Firm Network, Part I.” Metropolitan Corporate Counsel May 1999, pp. 29-45.
The Benefits of Strategic Partnering

Part II

DuPont, a company that has enthusiastically promoted and encouraged the role of women in the practice of law, proved it on September 24-25, 1998, by sponsoring a two-day “Conference on Women and the Practice of Law for DuPont” at The DuPont Hotel in Wilmington, Delaware. Conference participants were provided with an atmosphere conducive to expanding their professional networks while leveraging relationships with other women. Professional and business development sessions were held to discuss proactive approaches to mentoring and personal development. Breakout sessions helped to identify problems, issues and barriers specific to women representing DuPont, and brainstorming sessions helped uncover practical solutions to problems encountered daily in today’s legal environment.

The primary purpose of the conference was to maximize the professional power of women attorneys for the benefit of DuPont and its network of law firms. The answer to the subtheme of the conference, “How Can We Make DuPont More Profitable?” is relatively simplistic: “We Need to Maximize our Assets.”

DuPont is a corporation that recognizes the fact that their most important assets are its people and the knowledge they carry, and that today’s female attorneys are giving their lives to their firms. Clearly, they need a voice — a way to exchange ideas and meet their unique challenges head-on, and DuPont provided the ideal forum for this exchange.

Sharing their innermost professional secrets, anxieties tumbled forth in an atmosphere of camaraderie. Combining practical legal experience sharing to the strains of songs like “I Am Woman” and “I Will Survive,” this conference drew 125 female attorneys from across the country.

It is clear that today’s generation of women lawyers are guarded against the demands of a profession that has a history of being unaccommodating. Some of the topics discussed included “The DuPont Legal Model Perspective,” “Women as Rainmakers,” “Women in the Law: Putting us In Our Place,” and “Perspectives of Seven Successful Women:” subjects selected to provide ways for women attorneys to adapt new skills while finding solutions to old problems and stereotypes.

Change is what is required in today’s legal workplace. Born out of a serious need for balance in our courts, this conference for women took place in an atmosphere of sharing, trust, and candor. DuPont understands the importance of speed and adaptability in a changing world of work. This conference specifically designed for women in a demanding legal career encouraged women to interface and support each other while learning to sidestep loneliness and professional isolation.

The important issues raised and discussed at “The Conference on Women and the Practice of Law” are not easily resolved. Education and patience are required to change long ingrained attitudes and habits that have persisted for decades. The conference brought to the forefront the fact that progress is possible if all attorneys – both male and female – understand that the bottom line of a corporation or law firm will dramatically improve from providing a stable, high-quality, productive and satisfied workplace for everyone.

Clients value most those law firms where whole individuals deliver the best service. Women choose to leave the practice of law when they are forced into environments in which they cannot be whole, and therefore cannot reach the pinnacle of success because of their gender.

With positive energy and support from corporations like DuPont, women can change the legal world!

Janczak, Lynn M. “DuPont Promotes Legal Workplace Diversity with its ‘Conference on Women and the Practice of Law.” The Metropolitan Corporate Counsel, November 1998, p. 30.

Creating the DuPont Women Lawyers’ Network

Bivins: I am presently Senior Counsel at DuPont, and have been here for the last five years. Before that, I was in private practice.

Brown: I am presently a partner in the law firm of Wyatt, Tarrant & Combs. I’ve been with Wyatt since 1990 and I am now the engagement partner at the firm for the DuPont affiliation, meaning that I have responsibility for all our DuPont representation. Wyatt is the primary law firm providing DuPont with legal services for the states of Kentucky and Tennessee.

Editor: Does DuPont use law firms that are committed to diversity?

Bivins: Our convergence program was designed to concentrate the work done for DuPont in its 34 primary outside firms. We call each of these a Primary Law Firm (PLF). When DuPont’s convergence team selected these firms they used three criteria. One of those three criteria was the extent to which the firm practiced diversity.

Editor: What is the underlying philosophy behind the DuPont diversity program?

Bivins: Basically, our reasons are that the population is diverse. You have more creativity when you have different perspectives. We are a global corporation. Therefore, our workforce and those of our preferred suppliers should reflect the diversity of the country and the world in terms of race, ethnic background and gender.

Editor: I understand that you recently organized a Conference to improve the effectiveness of your diversity program.

Bivins: We held a Minority Corporate Counsel Conference last March in order to give our attorneys of color, both in-house and in our law firm network, an opportunity to present concrete ideas as to how to recruit and, as importantly, how to retain attorneys of color. It’s a continuing process of learning how to better implement and encourage diversity. The Minority Counsel Conference was Michael’s brain child. He asked me to work with him to organize the Conference. I handled it from the inhouse perspective.

Editor: Michael, tell us more about the purpose of the Conference?

Brown: DuPont has made it a priority to encourage diversity from the beginning of its convergence program. It was an objective that was shared by all, but after several years we felt that we weren’t making as much progress as we would have liked. So in April of 1997, I discussed with Tom Sager, DuPont’s Assistant General Counsel, how we could make our diversity program more effective and measure the results. The 34 PLFs were spread out all across the country. They ranged in size from the smallest, eight, to more than 400 attorneys. A single cookie cutter approach was unlikely to work. My suggestion to Tom was to convene a Minority Counsel Conference to get input from the minority lawyers on the DuPont legal staff and its network of law firms. The concept of the Conference was to bring as many of our minority attorneys as possible together in one place to come up with focused recommendations that we could then use to improve our efforts.

Editor: Did the Conference adopt recommendations?

Bivins: Yes, we did it through a very detailed process throughout the day. The first portion of the day, we discussed retention and recruiting, and then in the afternoon there were five breakout groups which formulated specific recommendations.

Editor: What is the procedure to implement these recommendations?

Bivins: Each law firm as well as DuPont Legal will adopt its own program to implement these recommendations to fit its particular circumstance.

Editor: What is the definition of the minority group that you are targeting?

Bivins: All attorneys of color, and by “attorneys of color” I don’t want to miss anyone, I want to be sure that everyone is covered.

Brown: They include, among others, African-Americans, Hispanics, Asian-Americans, Pacific Islanders, and Native Americans.

Editor: Did the Conference develop any recommendation relating to the recruitment of minorities?

Bivins: One recommendation was that the company and its law firms seek minority candidates not only using the usual channels, but also by going to nontraditional sources such as minority bar associations and minority law schools. 

Editor: I also understand that DuPont sponsors a number of minority job fairs in order to attract minority candidates.

Bivins: There are three job fairs scheduled for this year, the same as there were last year.

Brown: DuPont has had for a number of years a minority job fair in Wilmington and representatives from the PLFs are invited to attend and interview law students there. It was a great idea, but it tended to attract only students from the northeast corridor. So, in order to correct for that, we added job fairs in Los Angeles and Chicago, where the Cook County Bar Association was our partner. This year, we are going to repeat that same pattern. I went to Chicago and interviewed people all day, and one of those individuals will be starting as an associate in our firm this fall. Sometimes you have to travel that distance just to get someone who is truly interested in joining one of your offices.

Editor: Are the law schools graduating a sufficiently large number of minority lawyers? I have the impression that the pool is pretty small.

Brown: I would agree that the pool is not as large as we would like, but I also believe that it is larger than we might perceive it to be. The problem has been in looking in the right places. I have a philosophy called realistic recruiting. Realistic recruiting means that I want to target candidates who are likely to want to join us. It’s easy to go out and make great pitches and maybe even get some bright young people to come in for a summer, but if they don’t have any familiarity with you or they don’t feel comfortable, they are not going to stay even if they accept the job. So our emphasis has been on finding talented people who have either a regional or local connection. Take, for example, the young man that I found in Chicago. His family is from northern Alabama, so he was very interested in finding something closer to home. He then became a primary target of mine because what I had to offer him was a full-service law firm with major clients in the geographic area that he wanted.

Editor: How many students, on average, would you have at each of these job fairs?

Bivins: It varies from year to year, but in 1997 more than 750 law students applied to attend the fairs. After screening and a match-up process, the final number interviewed was approximately 200 students.

Editor: Is each DuPont firm represented at each job fair?

Brown: No, not at each one. I review the preliminary data on the attendees. If no one is interested in a job in our area, I would not attend.

Editor: From the student’s perspective, are enough jobs being offered so that it is worthwhile for them to attend one or more of the fairs?

Bivins: In 1997, 28 of the PLFs participated, out of the 34. This year all the law firms are participating, plus some of our service providers. The number of summer and permanent positions available depends on the size of the firm.

Editor: I gather there would be more summer jobs available then permanent positions?

Brown: Our main objective is for the permanent hire. However, service as a summer associate allows us better to evaluate the candidate’s qualifications for a permanent position.

Bivins: Summer positions allow the student lawyer to get to know the firm, to be sure that the firm offers an environment in which they would like to work.

Editor: Would lateral hires come through the job fairs as well?

Brown: Lateral hires come from a couple of sources. One source is through the Wallace Law Registry which is creating a national database of attorneys. Another source is the public service arena. In the culture of some law firms, as it existed in the past, the doors might have been cracked, but they were hardly wide open to minority lawyers. Therefore, many very talented minority lawyers do not start out in large law firms. They may go to work in smaller firms or in a district or a city attorney’s office, in an attorney general’s office, or in the military in JAG corps, or in any number of public sector employments where they get a lot of experience in a hurry. This is what I was getting at as far as the size of the pool goes. I think the pool may be larger than we realize. It’s just that we may not be looking in the right places. The purpose of the Wallace database is to collect information about minority lawyers wherever they may be employed. 

Editor: What is DuPont’s relationship to Wallace Law Registry and how extensive is the database that Wallace is creating?

Bivins: Wallace Law Registry is one of the partners in DuPont’s convergence program. As our exclusive staffing partner, Wallace provides temporary and permanent attorneys and legal assistants to our legal department and PLFS. At last count, their database included over 900 minority lawyers working in various legal capacities with employers throughout the country. All attorneys in their database have been interviewed by one of Wallace’s professionals. This process enables us to identify lawyers by areas of expertise. Wallace has a very successful track record not only in placing the right people in temporary positions, but in placing them in permanent jobs as well. We are pleased to be able to avail ourselves of their expertise.

Editor: To what extent is serving as a temporary lawyer a stepping stone to becoming a permanent employee?

Bivins: It allows candidates to get their foot in the door. They get to know the firm and the firm gets to know them.

Editor: Do you have any other comments on how you recruit?

Bivins: One thing I want to make sure that we make clear is we are not asking a PLF or the corporation to lower its standards. We are asking them to use the same standards, but look in different places to fill the need and then give minority candidates a fair opportunity.

Editor: Once you hire a minority lawyer, it is very important for them to feel comfortable. I understand that you have a mentoring program which addresses this concern.

Bivins: Yes, we have begun a mentoring program to help new hires learn the ropes. A senior partner or a senior member of the legal department works with new recruits to help them understand what is expected of them, to introduce them to the right people and to be sure that they are included in informal activities with their co-workers. We want to be sure that the minority employee gets the benefit of this process. We have developed a structured mentoring program to accomplish this. Each minority hire is assigned a mentor when he or she first comes in.

Brown: The need for mentoring was raised repeatedly by the people who attended the Conference.

Editor: Could you tell us about your diversity training program?

Bivins: A key ingredient in the program is our diversity video intended to educate people to the need for diversity and its benefits. This is shown to everyone in the organization.

Editor: What is an acceptable level of diversity for the purposes of your program?

Brown: “Acceptable” is not the appropriate term. That term means you’ve stopped. That puts the brakes on everything. I think we’ve made great progress, but you’re not going to get me to use the term “acceptable”. We don’t use it in any other aspect of the law firm business. You don’t say “We have an acceptable number of fine young attorneys,” or “we have an acceptable number of large clients.” If you say “yes,” does that mean you stop looking for talented attorneys or sending out, or responding to, RFP’s?

Editor: Are the PLFs recognized if they do an outstanding job in achieving greater diversity? 

Bivins: Last year, Howard Rudge announced a two million dollar challenge to the PLF, indicating that he hoped to reward up to two million dollars to firms who showed outstanding efforts in helping DuPont achieve its stated objectives. At our annual meeting in October 1997, Howard distributed a fair part of that two million to the PLF’s which had turned in an outstanding performance, including in the area of diversity. The selected firms received a monetary award and a beautiful crystal remembrance. In the letter accompanying the award to our firm, reference was made to our “leadership in the diversity effort.” This year the challenge has been repeated. We don’t as yet know exactly how much is in the pool. Diversity is also something that can be used by the firms when they are marketing themselves to other potential clients.

Editor: How do you ensure that minority lawyers are given the opportunity to demonstrate their skills on significant projects and for important clients?

Brown: In part, that works through the mentoring process. The concept is you are not hiring someone to just come and sit by the door, and to pass a pigment test. They are there to do significant work. DuPont, for instance, asks the firms it hires specifically about the use of minority and women attorneys on their matters. To retain the best and the brightest, you need a process to give them meaningful work.

Bivins: In order to encourage the use of minorities, we published the first DuPont directory of all of the minority attorneys in the PLFs. It provides information about the specialty and the location of each attorney. If I get a phone call in from California, I can now look up what minority counsel might be in that area, it’s quick and easy.

Editor: What are your plans for fine tuning the diversity training program?

Bivins: As I explained, what we have right now is a diversity video. We would like to expand upon that by actually going out and training groups of employees.

Editor: I know that our readers appreciate hearing the details of the DuPont diversity program. Thank you for taking the time to be interviewed. 

Bivins, Janet Y. and Brown, J. Michael. “DuPont Plays a Leadership Role: Janet Y. Bivins and J. Michael Brown Provide Inside and Outside Counsel Perspectives.” The Metropolitan Corporate Counsel, October 1998.

Model Impressions

MS. MAYER: Five years ago, DuPont’s legal function began a process to integrate the business of law with the practice of law. How have your initial expectations about the initiative compared with its implementation?

MR. COURSON: I have represented DuPont for 24 years, so I spent a lot of time working within the parameters of the old paradigm before this model was proposed. It was a radical change. I was struck by the courage it took for the legal department managers to make the leap of faith needed to take on such an effort.

Through performance and ordeals, many of us developed relationships with people in the legal department at DuPont. But to develop a corporate relationship on a larger basis was unusual. I was somewhat skeptical, initially, that they could build the trust to make it work, but they have succeeded.

MR. GLYNN: I initially worked for DuPont as an associate for a large law firm. As the program evolved, I was skeptical of aspects of it. For one thing, I don’t think procuring legal services is the same as procuring large volumes of supplies; buying legal expertise does not equate to buying pencils, even though there are general concepts that can be transferred. I trusted DuPont, though, because, as far as clients I’ve worked for over the years, few are as civilized or engender a culture that values relationships.

Now, five years later, I’m amazed at how much has been accomplished and how relentless the vision has been. It’s been made clear: if you don’t agree with the initiatives, then there’s room for you somewhere else.

MR. RUDGE: Even I started out doubting the program. While I tried to stay out of the way of those trying to make it work, my position was clear: if they wanted my support they had to show me the money. And they did. The results of this program speak for themselves: fees down 60 percent, disbursements down 25 — all while reducing our settlements and judgments.

I give the legal function credit. They captivated people with this idea and proved it could work. They overcame the if-you-want-it-done-right-do-it-inside-the-company culture at DuPont. We have become receptive to ideas coming from our supplier network, which have been, in many instances, more creative than our own.

MR. ROCKWELL: For me, the transition to the Legal Model inspired a blend of enthusiasm and uncertainty. One of my early concerns was the seemingly heavy emphasis on law firm assignment by geographic area. My initial skepticism was substantially leavened by the realization that we need the geographic dispersion. Interestingly, the model has evolved away from a geographic emphasis. It employs what I call “intellectual geography”: professionals who bring specialized skills and knowledge, who also work across the geographic boundaries of a national network to serve DuPont.

There has been consistency in many respects of the program, but there’s also been important and constructive evolutionary change, change driven by an increased understanding of what we are trying to do.

MS. PROWN: That flexibility is why the model works. For example, the fourth phase of “New Leadership” that we’re in now has produced the practice group effort, which was not anticipated when the program began.¹

MS. MAYER: Shannon, you were involved with the Arthur Andersen study that produced some of the initial recommendations. What were your expectations? Were there any surprises?

MS. PROWN: Unlike my colleagues here today, we couldn’t really afford to be skeptical. We were gratified by the positive reaction and the level of participation. One thing that seemed to surprise people was the amount of effort it takes to do this the right way. Technology efforts like getting KnowledgeBase up and running, developing Early Case Assessment, and establishing metrics, were Herculean efforts.²

It takes work to understand everyone’s needs, make the model work for all involved, and get buy-in. It’s not just the DuPont Model. It’s everybody’s.

MS. SOOY: I first started working with DuPont in the role as national counsel in their polybutylene pipe litigation, and that role continued for a number of years before they established the Convergence Program.

When they announced the program, we thought the partnering concept was just a buzz word. I mean, what does “partnering” really mean? Here we are, a group of law firms, natural competitors for a client’s work and attention. I had a hard time with the idea that we were going to all stand shoulder to shoulder and partner in our efforts for this client. To me, the most stunning accomplishment is the fact that there is a high level of collaboration and cooperation among the lawyers sitting here at this table, the lawyers in their firms, and the other firms and lawyers in the network. DuPont has done a great job of providing concrete financial incentives, both in terms of awarding work and giving bonuses, to make certain that collaborative efforts are rewarded.

MR. COLLINS: Unlike some of the others here, my firm had not represented DuPont prior to the model’s implementation. Our skepticism had a different source; while we were pleased about the opportunity, we didn’t think we’d make the final cut because DuPont had a long-time relationship with another good Delaware firm. Our skepticism changed to enthusiasm fairly quickly when DuPont selected us and another firm as their Delaware counsel. That was a fairly substantial statement that DuPont was serious about changing its outside counsel relationships.

Model of Efficiency?

MS. MAYER: One of the claims that was made when the model was unveiled was that it would eliminate inefficiencies. What efficiencies have you realized in your practice as a result of working with DuPont?

MR. COURSON: Alternative fees are a good example of an economic driver for efficiencies. Shifting the responsibility for risk and reward to the law firms provides an incentive to control costs. If you are efficient and effective, there is an opportunity to actually improve profit margins under the alternative fee system DuPont uses.

For example, although I was intrigued with technology, I never associated a dollar value with its use until the financial outcome of a case really meant something. Applying off-the-shelf technology to reduce the amount of time and effort to produce certain repetitive products — such as petitions for removal to federal court — is an example of how our firm has become more efficient. Use of nonlawyers, where appropriate and with the right kind of guidance, is another example of how to eliminate inefficiencies in the litigation process.

MS. SOOY: My view of the efficiencies that have been created comes from a different perspective. DuPont has really turned the old style of legal practice on its head. Providing legal services to a big client in the past entailed doing absolutely all you could imagine. DuPont has been willing to work with us to decide what we’re going to do and, more importantly, what we’re not going to do on a particular matter. That’s a huge leap from the way we used to work with big corporate clients. We now focus on the important things and get them done faster, better, and more cheaply.

Work Process Mapping
MS. MAYER: Did that come about as a result of the work process mapping³and reengineering?

MS. SOOY: It led to it. One great benefit of working with DuPont is that they sent a team from Arthur Andersen to study how we manage big national litigation.

The evaluation was intimidating at first. They wanted to know every step we took from the first phone call and the first piece of paper that arrived in our office. We constructed diagrams of all the steps, with the names of the staff members involved in each step, how many copies of documents we made and where they went, and so on. The Arthur Andersen team studied those diagrams and suggested ways to increase efficiency, integrating the new technology available through our partnership with DuPont.

MR. ROCKWELL: There is a striking difference in the way we approach a case with DuPont; we start with business rather than law. Together, we design a legal strategy that serves the business objective. That is a significant change.

MS. MAYER: Does that attention to the business interest translate into cost containment?

MR. ROCKWELL: Absolutely, because you’re stripping away that which is not needed. Of course, sometimes you’re doing more on those matters that have been prioritized as important. Early case assessment is part of that process. DuPont’s goal is case assessment within 90 days. In our firm’s alternative fee agreement with DuPont, the goal is 45 days. We routinely deliver case assessments within 14 to 21 days.

MS. PROWN: Another benefit of the DuPont partnership is the data that have been developed about the caseload. We are not making assumptions about where the work is coming from or how the cases are being disposed. We have data that drive decisions about where we need legal work done or how we want to get legal work done. For example, when we looked at work in the Delaware venue, people were surprised by the ratio of the number of cases being handled in Delaware to the number of lawyers and number of firms involved. Consequently, we changed the staffing and developed a contract lawyer relationship with two of the PLF suppliers to cut the costs of those cases.

MR. GLYNN: Sometimes the most intelligent and cost-effective judgments are those about what not to do. It is remarkable how often receding from the litigation in a prudent way can lower profile and result in a better outcome and lower transactional costs.

Risk
MS. MAYER: Everyone wants the ability to make better informed judgments like that, but there’s no real incentive to because the culture of the department is risk averse. How did DuPont make the shift to taking risks?

MR. GLYNN: Because the relationship with DuPont is based on mutual trust, we can propose ways to lower profile and to lower costs. It allows us, for example, to advise DuPont that we have 50 depositions scheduled, but there are probably 40 we can skip.

Making suggestions that are not in the immediate financial self-interest of the law firm adds to that sense of trust, making the relationship better and stronger. If you have an untrustworthy or adversarial relationship with your client, then the tendency to leave no stone unturned is imperative.

MR. RUDGE: Those are judgment calls I like to see outside counsel make. Law firms gain by offering their services as business people first and lawyers second. That way they’re involved in growing their client’s business in addition to their profits. DuPont’s outside counsel are my eyes and ears seeking ways to become more successful.

That’s a big change. We used to place the highest value on being thorough in our preparation and doing everything ourselves. There’s an old story about how we went to New York state to take a deposition with a team of three attorneys, three technical people, and a paralegal. The DuPont folks laughed when the plaintiff’s attorney showed up in a limousine and said, “We’d never waste money like that.” The plaintiff’s attorney responded, “If DuPont sent only one person to take a deposition, that person could afford to come in a limousine.”

Knowledge Capital
MS. MAYER: A large part of the success of the DuPont Model entails changing the status quo approaches to problem solving through exchanges of “knowledge capital.” What are some examples of how this behavior is cultivated among DuPont and law firm staff?

MR. COURSON: Fifty-seven trial lawyers and support people got together last summer in Atlanta, at their own expense, to create a product capturing their collective experience in Early Case Assessment. Virtually every firm in the network participated in some fashion and contributed their time and talent to create a meaningful work product, at no cost to DuPont. We have all been to meetings where we would never disclose strategies to competitors. The environment DuPont fosters allows for things like the ECA Knowledge Capital Conference to take place.

MS. SOOY: A lot of the efficiencies have come from the fact that the firms are willing to share their work product with each other. DuPont has set up a system, largely through the KnowledgeBase technology, that allows law firms to share their work product.

A Model Worth Emulating

MS. MAYER: Have other companies implemented initiatives similar to DuPont’s?

MR. RUDGE: Other companies are at least talking about having partnering relationships. At a Fulcrum conference I recently attended in San Francisco, the majority of sessions were about some aspect of our Legal Model: alternative fees, case assessment, convergence. When the question was asked whether other companies should consider “programs like DuPont’s,” a lawyer from a prominent law firm opined that no company could afford not to. The legal industry has to face up to the fact that this is the wave of the future. I’ve even been approached by lawyers from firms who work for one of our competitors asking me to convince my counterpart to implement a program like ours.

MR. COLLINS: We are involved in some partnering relationships with clients that work because the relationship is mutually beneficial. Other relationships are portrayed as similar to the DuPont program, but they haven’t been win-win relationships, so they have not worked well. They’ve achieved some short-range cost benefits, but they have not been successful in achieving the kinds of benefits the DuPont program has generated. For example, none have made the effort to develop technology or to hold meetings to provide for collaboration among the firms.

MS. SOOY: We have many clients with whom we work successfully. What’s unusual about the DuPont situation is the strong relationships among all the PLFs.

Going into this program I thought that I would develop a deeper relationship and grow to know DuPont better as a client. The big surprise was the fact that I got to know all these people around the table and the people at the other firms much better. I feel like I have a network of people — not just firms, but individuals — all over the country whom I can call upon for assistance. We have resources we didn’t have before. That hasn’t happened with other clients. They haven’t built a network that would allow the people at their various firms to get to know each other.

MR. GLYNN: Most of the time when you hear of a program that may be perceived as similar to DuPont’s, it’s a Trojan horse that hides the real agenda: to squeeze the law firms on pricing. Everybody who’s associated with DuPont’s program trusts that DuPont legal’s initiatives will improve the way legal service is delivered. The key is that is not done at the ultimate expense of the law firms and suppliers.

MR. ROCKWELL: I have many clients for whom I have a high degree of trust because the relationship has worked well, but sometimes that is incidental, not intentional. The critical difference is that with DuPont trust is structural and deliberate.

MS. MAYER: Have any of you encountered the criticism that this program is not as beneficial to those involved as it’s portrayed?

MS. SOOY: I’ve confronted it, but not from a PLF. I was involved in making a new business proposal to another major corporation and as part of that team we met with a handful of in-house lawyers and business people from that company. I had been asked to give a brief description of how we work with DuPont. After listening to my description, one of the people from the other company looked at me and said, “I just don’t believe it; I do not believe that 34 law firms are all working as one big happy family for DuPont.” There was nothing I could say to convince this person that it’s true.

MR. GLYNN: I’ve heard that many resent the program because it has generated so much publicity. One reason is that they get heat from their board of directors or their general counsel, who want to know why they aren’t doing something creative like this about quality and costs. Other companies think they are implementing the DuPont Legal Model — or at least their version of it.

Obviously the bottomline for our law firms is the hope that this program will be the source of economically beneficial opportunities within DuPont and outside of DuPont. It stands to reason that, to the extent it doesn’t deliver, those on the short end of the stick will have less enthusiasm for it.

That’s probably why DuPont has been active in providing other benefits to the network. For example, the whole focus of our last meeting was to identify ways to use the network as a marketing tool outside of DuPont. The fact that a client would devote resources to helping law firms design marketing strategies to gain other clients is amazing. But DuPont is committed to making sure that whatever revenue might have been lost to efficiency flows in from other sources.

MR. COLLINS: As the lawyers in DuPont say, they don’t create cases. But they are placing their work with the PLFs. The program’s goal was to place 75 percent of new cases with PLFs. According to the information communicated at the last annual meeting, over 90 percent of new cases are placed with PLFs. Clearly, different firms within the network are getting different levels of work as a result of where they are geographically or what their subject matter expertise is. That’s just a fact of life.

Early on we were not getting a lot of DuPont work. DuPont was conscious of that and encouraged us to stay with it; past data indicated that cases would be coming our way. And in fact what they said materialized. The firms involved in this program are in it for the long run.

MS. MAYER: Five years into this revolution, has DuPont won the war? If so, how do we know?

MR. COURSON: The metrics have been well documented and are impressive.

It’s clear from talking to other corporations that they are enamored with what DuPont is doing. Many don’t understand the cost of getting there, however. They want to cling to their old relationships.

MS. PROWN: Law is practiced differently here. You can call them practice groups, portfolios, or whatever you want. It’s pulling together the expertise, managing the risk, and applying the tools consistently that is changing the practice of law.

MR. ROCKWELL: I don’t think revolutionizing the practice of law was intended. I recall Jack Krol speaking when we met here in Wilmington in the fall of 1994 when he was then vice chairman, soon to become chairman. I was particularly struck by the simplicity of the comments he made, the gist of which was that, really folks, all we’re trying to do is to apply some basic common sense and business principles to what we’re doing. These aren’t ideas no one ever thought of before. The difference is, few have done it systematically until now. That’s been the enormous reward of being involved with DuPont.

MS. SOOY: I agree that we didn’t set out to revolutionize the practice of law. But, in many ways what has been done with these simple concepts has been revolutionary. When you move from lawyers who compete to lawyers who collaborate, when you get to a situation where not only does DuPont save on legal dollars but the law firms are profiting from all the new efficiencies, too, you really have done something that’s very different from anything that’s ever been done in the past.

MR. COLLINS: Often the easy answers are wrong. The revolution of corporate America requires a large-scale adoption of Dupont’s Legal Model. The popularity and, ultimately, the success of the Legal Model depend on its utility to American companies, factors which can be measured accurately only after years of application.

Notes

1.  The term practice groups refers to networks of in-house counsel, outside counsel, and business people, specifically organized to work collaboratively. These groups share resources, information, work product, and best practices to achieve greater efficiency and bolster KnowledgeBase via the dedicated computer system. Their organization resembles a law firm’s in that they have “practices” (that is, intellectual property, mergers and acquisitions, and so on). 
2.  For background on these efforts see the following articles: Thomas L. Sager, “Toward a Common Goal,” ACCA Docket 15, no. 4 (1997): 12-24, and Thomas L. Sager and Gerard G. Boccuti, “Achieving a Common Goal: DuPont’s Perfomance Metrics,” ACCA Docket 15, no. 5 (1997): 12-26. 
3.  Work process mapping is a reengineering term that identifies the activities conducted in the process of completing a given task. For example, work process mapping may address what happens once a complaint is filed (that is, who gets the paperwork and what they do with it).

Reprinted with permission of the authors and the American Corporate Counsel Association as it originally appeared: “Five Years into the Experiment: An Evaluation of DuPont’s Legal Model Revisited,” ACCA Docket 16, no. 4 (1998): 24-34. Copyright© 1998 by the American Corporate Counsel Association. All rights reserved. For more information or to join ACCA, call 202/293-4103, ext. 360, or visit www.acca.com.

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More About the Legal Model
More about the Lessons Learned

In DuPont’s legal department, Associate General Counsel Tom Sager is a driving force for improving the hiring, retention, promotion, and involvement of minorities and women. Sager helped pioneer DuPont’s Convergence and Law Firm Partnering Program and continues oversight of the program today. Through his leadership, the DuPont Legal Model has received national acclaim for infusing business principles into the practice of law.  And one of the founding principles of the Legal Model is diversity, valued for the way it improves the quality of legal solutions and the creative results of legal teams.

Sager’s vigilance helped create a growing awareness that the juries, customers, and policy makers that the company dealt with were growing in diversity at a faster pace than its workforce. The disparity impacted the company’s ability to effectively connect with increasingly diffuse segments of the business world and to reach them on intellectual, emotional and personal levels.

“Diversity is more than the right thing to do,” Sager explains, “it’s good for business.  Our ability to connect with deal makers, politicians and juries must be better than our competitors.”

Consequently, when the DuPont Legal function undertook a major program in 1992 to select preferred providers of legal services, Sager kept diversity considerations at the forefront of the process.Four criteria established who would become the primary law firms.  Each prospective firm was asked to demonstrate a commitment to forging a long-term strategic business alliance; to employing new technologies; to using alternative fee structures; and–equally important–to hiring, retaining and actively involving minorities and women in the firm’s representation of DuPont.

Determined to share with the primary law firms more than just legal matters, Sager emphasized that he wanted service providers to share its corporate values as well.  The diversity criterion was integral tot he new DuPont Legal Model – and to the entire partnering program.  It was not an afterthought, devised simply as an add-on social service. Nor was it to be strictly a matter of increasing numbers.Diversity in the legal ranks was crucial to maintaining a competitive advantage as a corporate legal department.

Although such initiatives are often accompanied by sharp criticism and compelling financial and political pressures, Sager says the short-term discomfort is offset by the long-term benefits.“Driving diversity ensures that the best-suited, most competent counsel handle all DuPont matters – and ensures that we can successfully contend with a business environment that is increasingly global and decreasingly dominated by the traditional white male hierarchy.”

Instead of imposing mandates and quotas, Sager and the DuPont Legal Model team found ways that DuPont could take an active role in creating solutions.A critical area in need of improvement was recruitment at the law firms.To enhance the outside firm’s recruitment efforts, DuPont Legal organized a Minority Job Fair in 1994.

Marion Tucker, former director of the ABA’s Commission on Opportunities for Minorities described the effort as the nation’s first corporate minority legal job fair.The fair presented students with an unmatched opportunity to meet representatives from the primary law firms and be interviewed for both summer and permanent positions.

Corporate Legal Times recognized the creativity of the initiative by honoring DuPont Legal with its 1994 Award for Distinguished Legal Service. Such positive response encouraged the transformation of the DuPont Minority Job Fair from a one-time event into an annual affair that has expanded across the country and today includes additional sponsors.The three job fairs held in 1997 drew over (750) student applications, with at least (12) offers extended to students.

Internally, Sager and the Legal function also promote diversity through a variety of efforts.The intellectual property group recently recruited and hired four minority corporate counsel, a success due in large part to the efforts of Hinton Lucas. Lucas previously served DuPont as associate general counsel and now concentrates on diversity in a new position for personnel relations.

Other efforts include an exclusive contract with The Wallace Law Registry to meet DuPont Legal’s employment needs for both temporary and permanent lawyers.As part of the arrangement, DuPont tasked Wallace with developing and maintaining a nationwide minority legal assistant and lawyer database, accessible to DuPont Legal, its primary law firms and other Wallace clients.

In recognition of these and many other efforts, MCCA presented DuPont Legal with the 1997 Diversity 2000 Award.DuPont’s General Counsel, Howard Rudge says “efforts to improve diversity have come from many people throughout the Legal function.Tom and his people have kept this issue moving.Through his leadership, our outside law firms understand hiring and retaining minorities is a top priority.Just watch our video about improving cultural competency and you can see for yourself that we do more than mouth the words.”

The idea for the video originated with Sager and the Law Firm/Supplier Diversity Task Force.In 15 high-impact minutes it makes the case to DuPont firms to recruit, retain, and promote minority and female attorneys and identifies resources for those who are not certain what to do next.

Sager’s relentless commitment to increasing diversity in the legal profession – despite competing interests and mounting cynicism – is why MCCA created the “Thomas L. Sager Award.”Given to inspire others to move beyond lip-service and to create meaningful solutions, the Sager Award will recognize leaders who support MCCA and the Pioneers of the Profession.

Says Lloyd Johnson, Executive Director of MCCA, “Tom Sager typifies the kind of commitment MCCA wants to encourage – leadership by example and a deep, consistent sense of responsibility for creating results.The award will be given to those who carry on that spirit.”MCCA created the award to help others learn how to overcome the obstacles often encountered in trying to change the status quo.The MCCA board of directors recognizes that the subject of “corporate counsel of color” often evokes a range of reactions that stall even the best of efforts.At one end of the spectrum, boredom and skepticism can slow progress by creating inertia; at the other end, reactions like hopelessness and resistance are often more debilitating.

“All-to-often, people excuse themselves from having to make a commitment to working with minorities by saying, ‘We can’t do anything about diversity, we can’t find any candidates!’” Johnson explains.“Recognizing their frustration, this award is one way we can help show them possibilities.To those who say, ‘we can’t…’ this awards says, ‘Hey DuPont did, Tom Sager did.  And you can too.’”

By Dana Mayer

For over 12 years Dana Mayer has written and consulted about how the synergy of marketing communications and human resources can reshape the way people collaborate to maximize profit and productivity.

Minority Corporate Counsel Association, Diversity & The Bar, May 1998, pp. 44-45.

For more information, visit  Minority Corporate Counsel Association.

More About the Legal Model

New Article by Tom Sager

Overview

Many legal departments develop a vision of the future and try to measure their progress in achieving it. The problem with measuring visions, however, is that they are intangible and abstract. Strategies and tactics for implementing the vision, on the other hand, can be measured.

Metrics — standards for monitoring individuals, organizations, or programs over time — are what DuPont turned to to measure legal performance and validate assumptions about the department’s workings and bottomline effectiveness. The metrics support organizationaI objectives by increasing our understanding of how well we are doing in meeting the objectives and what underlying factors can be attributed to our success or failure in meeting the objectives.

Our metrics analyze performance, track common objectives, and allow leveraging and sharing of relevant information throughout the organization. An interactive process, DuPont’s metrics program solicits input and feedback from attorneys and staff — inside and out.

Success in the legal profession of yesteryear was measured in the simplest terms: winning cases. In the legal environment of the nineties, success is defined more broadly: a never-ending mission to perform better today than yesterday and better than the competition tomorrow. As the profession continues its rapid adaptation to business realities the need to validate strategies and improve performance will also grow.

Sidebar 1

Deciding What to Measure

Determining what to measure is a delicate balance between having a thorough metrics system and being overwhelmed by too much data. DuPont looks to metrics as an informational tool to measure performance in cost efficiency (the business of law) and quality and results (the practice of law). Our approach is unusual because it is used by case teams and primary law firms (or PLFs: firms with whom DuPont established exclusive relationships after its convergence process¹), not just by upper management, to continuously improve performance.

Based on focus groups with department management and in-house and outside counsel, four areas of performance were selected: traditional results (transaction costs, recoveries, and pay-outs); compliance with internal initiatives (for example, ensuring that every matter has an early case assessment and a budget); efficiency (case staffing, disbursements, and cycle time); and peer-to-peer (best practices and use of cost-saving technology). Quantitative measurements were set up, followed by a detailed analysis and interpretation of the data to ensure that the metrics set met our objectives.

Metrics are an integral part of the continuous improvement process, helping ensure that objectives are being met and that the organization is succeeding, and, just as importantly, identifying which programs are not working and where changes should be made. The DuPont metrics tell us more than the cost of improvements to a process or product. They tell us where to focus resources and help us discover the best practices that drive quality and results.

Management with metrics has led to a 40 percent reduction in the average cost of a case filed against DuPont because of the alliance between our in-house staff and PLFs to meet targets. In fact, in many cases we have surpassed our targets. One of the stated goals of our convergence program, for example, was to place 75 percent of new matters within the PLF network. Reports indicate that over 90 percent of new matters are being filed with our PLFs. This indicator is vital for several reasons: it demonstrates our commitment to building a long-term relationship with our PLFs; it gauges the success of the convergence and partnering program; and it increases savings to DuPont when work goes to firms we have selected as price/performance leaders in their practice area or region.

Tracking Information, Evaluating Results

A metrics strategy must include decisions on the technology that will track the data and generate reports. DuPont’s legal department used advantages gained by the evolution of information technology to upgrade traditional metrics for the competitive nineties. The ease with which information can be measured and monitored has increased each year as new software appeared on the market; databases became easier to create, input, maintain, and use; and analysis tools focusing on the operational dynamics of the legal profession became available.

LawPack®, DuPont’s case management system (or CMS, which allows us to track project staffing and identify optimal strategies), tracks most of the case level information and many other program areas.

LawPack replaced an awkward, hard-to-use mainframe-based system and made a higher level of management information accessible. Sophisticated applications to pull data from our matter databases and PC applications such as Microsoft’s ACCESS®, EXCEL®, and Powerpoint® allow us to customize reports and measure and communicate our initiatives. We added a module to allow us to analyze invoices on a task rather than an hourly basis and are implementing strategic budgeting and case assessment modules to report on those initiatives.

Generally in the form of easy-to-use charts and graphs plus analysis, our reports allow us to persuasively and objectively demonstrate our success in meeting and even surpassing our clients’ expanding expectations. They provide valuable information to the department and our network of PLFs and legal service suppliers. By finding better ways to measure and communicate our initiatives we create discipline within the organization and ensure the accuracy of our course and timely corrective action.

After a trial distribution to a sampling of in-house and PLF attorneys, we quickly realized a less-is-more approach would be needed: anything more than 14-18 metrics would be too unwieldy and difficult to communicate. Knowing that management and most attorneys would not have the time or desire to decipher complicated reports, we chose to issue color graphs that made a statement and made it quickly. The At-a-Glance, You-are-Here, and Task Based charts are good examples (Figs. 3, 4, and 5, respectively). Also included is a brief summary and overview of the metrics as interpreted by DuPont management.

At-a-Glance. At-a-Glance charts are crisp, one page summaries of key information for management’s use in understanding the trends and changes in DuPont’s litigation docket. They list the types of cases we face along with average legal costs, average cycle time, number of cases closed for each type, and percentages of change over a three-year period.

You-are-Here. You-are-Here charts are issued to in-house attorneys and PLF staff and are the primary performance indicators for these members of the legal team. They report on the average legal costs and cycle time for the assortment of cases in DuPont’s docket. The bars on the chart indicate averages and the dots indicate an attorney or PLF’s performance compared to the average. The charts have been useful for goal-setting, staffing decisions, and more meaningful collaboration between in-house and outside counsel.

Task Based. DuPont was a member of the ABA-ACCA-Price Waterhouse committee that developed the Uniform Task Based Management System (UTBMS) litigation code set. We adopted the system and believe it is useful for in-house and outside counsel. The UTBMS information provided by our PLFs includes a breakdown of tasks performed, case information, billing rates, hours spent on each task, and so on. The data enables us to not only understand the services we buy from a particular law firm, but to integrate case strategies with the expected costs at the task level. Task based reports are also useful in “profiling” our docket by task. Finally, by analyzing historical task information from similar cases, the task based reports help us develop more effective alternative billing strategies.

Management, in-house lawyers, and, most notably, our PLFs receive reports. The reports let our PLFs know how they are doing relative to their counterparts, explain the legal challenges facing our company, and provide the basis for constructive discussion between in-house counsel and PLFs.

Although the first set of reports were printed and mailed, future biannual reports will be distributed electronically via intranet, eliminating the costs and delays of hard copy distribution.

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Challenges

Implementation of the metrics program was a revolutionary event that required a change in corporate culture. Performance issues would now be discussed, costs would be closely analyzed, and outside counsel’s performance would undergo analysis based on objective measurements rather than subjective ratings.

Buy in

Communication was key to getting buy in from department staff and outside counsel. It helped that we had been discussing the need for strategic metrics since 1994, so the concept was not new. A system of metrics was also a main component of DuPont’s new legal model which was set up to manage legal matters through continuous improvement and best practices. It also took nearly two years to fully implement the information technology platform and architecture to support the metrics system, during which time we seized every opportunity to promote the metrics program and explain how we intended to use it.

Sometimes the audience was not very appreciative of the effort. At one management development training session, for example, one of the more vocal attorneys pronounced his general displeasure with the initiative: “If we were interested in numbers we would be accountants.” Nonetheless, the message was simple and generally well received: metrics and performance data would be used to learn from each other and direct our efforts to continually improve with the goal of becoming a world class legal department. By setting targets we could all agree on, the metrics data could be used to support our efforts and point to our accomplishments.

Resources

Because the amount of resources required was staggering, it was necessary to identify available resources and skill sets early. Our team consists of a systems manager, a legal assistant, and a lawyer. The systems manager is responsible for DuPont’s CMS and underlying technologies. The legal assistant processes the data, ensures its reliability, and translates it into understandable graphs. The lawyer is the team leader and analyzes the graphical data for recipients.

In addition to the internal team, we enlisted the services of a consultant to assist with project design and implementation. In that capacity, Arthur Andersen professionals provided expertise in the area of statistical validity, data integrity, and general project management.

Technology

The sheer volume of data necessary to produce useful metrics creates a need for advanced technology to electronically aggregate, process, and disseminate information. Additionally, since the process of metrics and measurements is never stagnant, it is imperative that the technology be flexible enough to support a constantly changing set of requirements.

Flexibility v. Consistency

A metrics program is only as good as the questions one proposes to answer. On one hand the project should be flexible enough to allow for new questions: each new approach and strategy creates an opportunity to adapt the metrics to provide additional or better management information; on the other, a completely ad hoc, freewheeling inquiry would prove chaotic, costly, and inefficient. A balance between a level of consistent reporting and flexibility to investigate a novel idea or problem must be struck.

Data Input and Validity

The data in our CMS and other systems form the basis of DuPont’s metrics reports. Data must be entered and updated in a timely fashion or it will be incomplete and possibly misleading. The data must also be valid: not miskeyed or entered into the wrong field.

A system of checks and balances is vital to ensuring valid data. The complexity of our CMS and supporting systems (such as vendor payments) makes it difficult to ensure 100 percent accurate data without affirmatively validating and cross-checking it with other information.

Several measures may help mitigate the inevitable problem of invalid data. First, taking a snapshot of the data (which changes from day to day) and labeling reports valid as of that date will help ensure consistency among the different analyses. (Note that consistency may come at the expense of not having the most up-to-date information.)

A problem with litigation related metrics is relevancy of comparisons between specific legal matters within the same category of cases. Not all product liability cases are the same, even when the same product is involved. We have attempted to minimize the “apples versus oranges” dilemma by defining case types as broadly as possible, but also allowing specific exclusions where cases that are not typical exist. We also focus on long-term trends, not incidental occurrences, as a way to mitigate the data validity problems that stem from the diversity in our docket.

Other approaches that may help ensure data validity include:

• impressing the importance of accuracy upon clerks, legal assistants, and staff attorneys responsible for keying in data 
• performing cross-referencing reports for key information 
• summarizing data for counsel to validate key items prior to analysis 
• setting long-term targets and using metrics to track progress over longer periods of time 
• seeking assistance from those who have a good sense for the organization and how things are going. Their intuition and input can help identify areas where more data cross-checking should be conducted.

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Report Creation

A considerable amount of time is required to design and test the queries used to poll the CMS and generate reports. We are examining ways to streamline this process.

Report Distribution

Distributing reports in hard copy is time consuming and somewhat costly. Copying and binding inevitably involves delays. Quality checks must be performed to ensure that the right people get the right reports. As noted above, the legal department’s intranet has become the primary means of distribution.

Apathy

Report recipients must take time to understand them and take action accordingly. Expect initial resistance and uncertainty.

Management should take an active role in talking to their groups about the need for strategic performance measurements. Consider publicly recognizing and rewarding performance leaders as a way to raise interest. Also consider and communicate performance evaluation and career progression implications. Make reports as personal and useful to attorneys and their staffs as possible.

Human Resource Implications

Many of the reports provide peer-to-peer measurements of in-house attorneys’ performance. This data may not be expressly shared on an individual basis, but there are some potential HR issues. For example, will metrics related to an employees’ performance be at all tied to their performance evaluation? If so, will management need different metrics to make individual assessments? Because we wanted our in-house attorneys to understand and feel positive about metrics, we wanted to address these concerns.

Before distributing the metrics reports, the management team met to discuss a uniform approach to using the metrics data and analysis. The team worked with a consultant to develop a framework that was then refined. It was distributed with guidance on the metrics that were to be used to evaluate performance, setting and monitoring targets, and how to positively discuss quantitative data that may reflect poor performance.

Conclusion

John A. Krol, DuPont’s president and chief executive officer, recently concluded a global video conference with the statement “what gets measured gets results.” Finding a nontraditional way to measure and communicate a firm’s performance and success has become a necessity and is a direct response to the changes taking place in the industry. Many organizations, including DuPont’s legal department, now have a formal metrics program designed to not only support current strategies but anticipate future needs as well.

DuPont’s metrics program will continue to expand as the need to quantify and differentiate the value of a company or service provider expands. In today’s corporate environment, the costs and efficiency of general services and functions such as human resources, marketing, finance, and legal, are under close scrutiny. Our ability to quantify performance has been invaluable in showing senior management that the legal department has surpassed goals and delivered value to the company. DuPont’s metrics will also serve to bridge the communication gap between the client’s business needs and the lawyers’ ability to provide legal expertise to meet those needs.

Reprinted with permission of the authors and the American Corporate Counsel Association as it originally appeared: “Achieving the Common Goal: DuPont’s Performance Metrics,” ACCA Docket 15, no. 5 (1997): 12-26. Copyright © 1997 by Thomas Sager, Gerald Boccuti, and the American Corporate Counsel Association. All rights reserved. For more information or to join ACCA, call 202/293-4103, ext. 360, or visit www.acca.com.

Five years ago, the DuPont Legal Model was a concept. Today it is a reality that has changed the company’s practice of law in a global, market-driven economy. Like the rest of the corporation, DuPont’s legal practice is now managed to make money, not prove principles. Consisting of partnerships with law firms and legal service providers, efficient use of technology, and results-oriented work processes, the program has facilitated a significant transformation in the industry by bringing business innovations to the practice of law.

Creating a Network of Primary Law Firms

DuPont had too many lawsuits and had grown accustomed to a win-at-all-costs approach to cases, resulting in high overhead, inefficiencies, and work disruptions when triage was necessary. Under the DuPont Legal Model attention was redirected to reducing the trial docket and the volume of claims confronting the company by settling where practical, even if a principle was at stake. (If establishing principle was going to be costly, we’d let others do it.) This strategy reduces not only legal overhead, but risk.

When the convergence process began, DuPont had dealings with 350 outside law firms and an untold number of vendors. A legal team assigned to examine expenses and implement the program set out to identify ways to reduce immediate costs and pave the way for future gains in efficiency and cost savings. To this end, the team audited work processes in an effort to create systematic approaches to handling the docket. It discovered that DuPont was paying a high price for thoroughness. Time was spent researching every issue to avoid risk – turning over every rock, as opposed to just the right ones. To address this concern, the team made the need to move from thoroughness to appropriateness its top priority, a shift that required in-house and outside counsel to work together to determine objectives and a strategy for achieving cost-effective results for each case.

Sidebar

A smaller network of outside law firms and suppliers was needed for this kind of teamwork and DuPont set about creating a network of Primary Law Firms (PLFs). The network’s purpose was to reduce litigation costs, improve the quality and efficiency of work product, gain a competitive edge within the industry, and provide a technological advantage. Eventually, the network consisted of exclusive relationships with 34 primary law firms (PLFs) and seven service suppliers.

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Criteria

The team determined that each PLF should be specially suited to handle part of DuPont’s caseload, so, before reducing the number of firms with which DuPont had dealings, a matrix was used to identify the number and type of law firms required to handle its docket. The matrix plotted types of litigation, services required, and regions where services were needed.

Cases typically fall into one of four categories: complex (which we dubbed brain surgery), such as multiplaintiff, multidefendant cases like Benlate, which put the company’s financial health at risk; specialty litigation, such as antitrust and patent; product liability/personal injury, such as toxic torts; and repetitive litigation (commodities), such as employment discrimination and slip-and-falls. Most of DuPont’s cases are in the product liability/personal injury and commodities categories. For such cases, expensive, high-profile firm are overkill and simple, efficient legal service providers are more appropriate.

In our search for firms we looked for those that accepted our technology, billing, and strategic relationship ideas in addition to looking for matches in terms of type of litigation, services required, and geographic region. Ownership and commitment of DuPont’s principles rather than previous relationships was the deciding factor in selecting PLFs and service suppliers. The team conducted extensive interviews with each firm to determine the basis of their commitment to:

• Competence, excellence, and getting results
• Relationships founded on trust
• Mutual financial success
• Technology and work process reengineering
• The retention and contributions of minorities and women
• Taking risks and advancing creativity.

Because our program is an active model, changes in the relationships between DuPont and the network are encouraged. The model was intended to meet the varied needs of all participating members and as such is being continuously adapted to reflect the current business needs of the corporation and network participants.

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PLF Benefits

DuPont has reaped many benefits from its strategic partnerships with primary law firms (PLFs). In addition to the already noted savings of time and money, the legal department received discounts and complimentary goods and services amounting to $1.4 million from three suppliers in 1995 alone. The PLFs and service suppliers have fared well, too. Being a DuPont preferred provider confers PLFs and suppliers with:

• Increased cash flow due to DuPont’s 14-day-or-less payment cycle.
• Reduced sales cost, because PLFs are spared the expenses of beauty contests and RFPs.
• Greater marketplace visibility, because the partnership with DuPont is well publicized.
• Technological edge, which translates into a competitive advantage, because the network firms share DuPont’s technology (case management software and wide area networking link the network for email, consultation, and work sharing).
• Competitive edge, because DuPont is a learning lab. The training PLF staff receives prepares them to work more cost effectively and efficiently for other companies.
• Increased business, because PLF staff become part of an elite group of law firms and service suppliers who refer business to each other.
• Networking opportunities through DuPont’s meetings, educational forums, and teaming approach.
• Increased business to minority-owned firms.
• Purchasing power, because we include network participants in contract negotiations for telecommunications services, computer hardware and software, and travel services. Network participants are thus set up to capitalize on DuPont’s vast buying power.

Sidebar

They also reap sizable rewards for significantly reducing costs. Last year, for example, Howard Rudge offered a $2 million challenge to other PLFs and service suppliers to obtain further cost savings. DuPont helps network participants focus upon such initiatives and looks for ways to create attractive incentives to challenge the PLFs to change their staffing and compensation patterns. For example, staffing practices at DuPont, our PLFs, and suppliers are required to reflect a commitment to reengineer work processes and to hire and assign women and minorities to the corporation’s cases. We look for ways to make incentives for improving the bottom line – at our offices and theirs – irresistible.

The PLFs and service suppliers have counted many wins, individually and collectively. Through their unique relationship with DuPont, they have profited from expanding workloads and increased their professional capital through new forms of compensation and model business practices.

Copyright © 1997. All rights reserved.

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Reprinted with permission of the authors and the American Corporate Counsel Association as it originally appeared: “Toward a Common Goal.” ACCA Docket 15, no. 4 (1997): 13-24. Copyright © 1997 Thomas L. Sager and the American Corporate Counsel Association. All rights reserved. For more information or to join ACCA, call 202/293-4103, ext. 360, or visitwww.acca.com.

About the Legal Model

Articles on the Legal Model

Diversity Is A Business Imperative

The reasoning behind the diversity push goes beyond its obvious virtue. As Jack Krol, President and CEO of DuPont succinctly framed the issue, “Diversity in our company is itself a business imperative — vital to our ongoing renewal and our competitiveness into the 21st century.” DuPont recognized that its stakeholders – its customers, business partners, the communities it operated in and the policymakers it dealt with – were growing in diversity at a faster pace than its workforce. The disparity impacted the company’s ability to effectively connect with increasingly diffuse segments of the business world, to reach them on an intellectual, emotional and personal level – and do it better than its competitors. “The bottom line,” said Krol, “is that we needed a work force that at least equaled our stakeholders in diversity.” Consequently, when the DuPont Legal Function undertook a major program in 1992 to select preferred providers of legal services, diversity was put at the forefront of the process. In selecting who would become the primary law firms, four critical criteria were established. Each prospective firm was asked to demonstrate a commitment to forging a long-term strategic business alliance; to employing new technologies; to using alternative fee structures; and – equally important – to hiring, retaining and actively involving minorities and women in the firm’s representation of DuPont. 

Sharing Diversity Values With Law Firms

We were determined to share with our primary law firms more than just our cases; we wanted to share our corporate values as well. As such, the diversity criterion was integral to the new DuPont Legal Model – to our entire partnering program. It was not an afterthought, devised simply as an add-on social service. Nor was it to be strictly a matter of increasing numbers. Diversity in the legal ranks was crucial to maintaining a competitive advantage as a corporate legal department. If the juries we faced, the clients we served, the business leaders with whom we negotiated were growing in diversity, then clearly our legal team should be as well. By driving diversity into the Legal Model, we would ensure that the best-suited, most competent counsel would be available for all DuPont matters – and could successfully contend with a business environment rapidly segmenting, increasingly global and decreasingly dominated by the traditional white male hierarchy. There was, as well, an added value to driving diversity into the Legal Model. Put simply, diverse people generate diverse thinking. When it comes to problem solving, if six people are gathered around a conference table, all with the same background, education and experience, the issues tend to be viewed through a narrow lens. Diverse thinking, on the other hand, can produce a more expansive view of the issue under consideration. More and better questions arise, leading to more and better answers. New perspectives are shared – and creative legal solutions spring forth. Ultimately, diversity results in a better work product. While the DuPont network’s commitment to diversity was strong, some selected primary law firms lacked the resources required to attract and hire top-flight women and minority attorneys. Many of the smaller firms found it difficult to compete with larger, deep-pocketed firms who could travel the country, visit law schools to personally interview students — and eventually land the best and brightest. We had two options to our primary law firms’ hiring dilemma. We could simply tell them “do better – or else.” Or we could take an active role in enhancing their recruitment efforts. Prior to the Convergence program, the second choice would have been an unlikely scenario. But significantly reducing our number of primary law firms allowed us a greater level of interactivity. After all, it’s much easier to lend a hand to 34 firms than to 300.

Minority Job Fair – A Recruitment Tool

If our primary law firms couldn’t go to the students, we decided we would bring the students to our firms. So in August 1994, DuPont Legal organized a Minority Job Fair – the nation’s first such corporate legal job fair, as described by Marion Tucker, former project director of the American Bar Association’s Commission on Opportunities for Minorities in the Profession. Minority law students from around the United States were invited to apply to attend an interactive fair, held at DuPont’s headquarters in Wilmington, Delaware. The fair, scheduled to mesh with the company’s annual meeting between outside firms and inside counsel, would present students with an unmatched opportunity to meet representatives from the primary law firms and be interviewed for both summer and permanent positions. One hundred forty law students, mostly second and third year, applied to attend. Out of those applying, invitations were extended to the top forty students, from schools that included the University of Chicago Law School, Howard University School of Law and Duke University School of Law. If a student was unable to financially afford the trip, travel assistance was offered. As with any start-up enterprise, the results of that first fair were modest; only a handful of students landed positions with primary law firms. Yet the experience was well received by the firms involved, the students who attended – and by industry observers. In particular, Corporate Legal Times recognized the initiative’s creativity by honoring DuPont Legal with its 1994 Award for Distinguished Legal Service. Such positive response encouraged the transformation of the DuPont Minority Job Fair from a one-time event into an annual affair. Since that inaugural fair, the number of student resumes submitted each year has risen dramatically, as has placement of minority law students within our primary law firms. For the 1995 fair, 370 applications were received, out of which 50 students were invited to come to Wilmington, hear Justice Randy Holland of the Delaware Supreme Court deliver a keynote address at a special luncheon, and meet with representatives from 27 primary law firms. Last year’s job fair attracted even greater attention, garnering more than 500 applications, out of which 60 were selected to be interviewed by 28 firms. Nearly two-thirds of those interviews led to jobs.

Today, DuPont Legal is building on the fair’s success. Urged on by Mid-West and West Coast firms wishing to enhance their recruiting presence, two additional fairs have been scheduled for August 1997, offering primary law firms expanded opportunities to participate. In addition to the traditional site in Wilmington, fairs this year will be held in Chicago and Los Angeles. Together, the three fairs are expected to draw a total of 1,000 student applications, with at least 12 primary law firms interviewing at each site.

Wallace’s Nationwide Minority Database

Internally, the Legal Function also is promoting diversity through a newly structured relationship with Wallace Law Registry, a legal search and placement firm in Hartford, Connecticut. In September of last year, Wallace was given an exclusive contract to meet DuPont Legal’s employment needs for both temporary and permanent lawyers. As part of the arrangement, Wallace was tasked with developing and maintaining a nationwide minority legal assistant and lawyer database, accessible to both DuPont Legal and its primary law firms. The online resource should prove an invaluable tool not only in the recruitment effort, but also in opening career development opportunities for minority legal professionals around the country. DuPont Legal’s innovative efforts in hiring and promoting minority lawyers were recently honored by the Minority Corporate Counsel Association, which on June 19 presented Howard Rudge, General Counsel of DuPont, with that organization’s Diversity 2000 award. And yet, while Legal was singled out for recognition, its efforts – importantly — are part of a greater whole. Legal’s diversity initiatives are integral to DuPont’s long-standing, corporate-wide goals. In particular, over a decade ago, DuPont established its TEMPO program, “To Encourage Minority Purchasing Opportunities,” in which all supervisors with purchasing authority were required to place as much work as possible with minority-owned vendors. Since 1989, Legal alone has placed more than $11 million with minority-owned law firms and suppliers. That volume of business has accelerated dramatically since the implementation of the Convergence program, in part through the use of minority-owned law firms targeted by geographic area and expertise.

Law Firms’ Accountability For Achieving Diversity

In the early years of the DuPont Legal Model, primary law firms were informally graded on their diversity efforts, as matched to the original selection criteria. In 1996, however, the evaluation was made more circumspect with the development of a detailed self-assessment form sent directly to primary law firms and suppliers. Using the survey form, firms were requested to evaluate their contribution and progress in achieving the major objectives of the entire Legal Model. Among the specific areas they were asked to address were the strategies employed to increase the hiring and use of minorities on DuPont matters. The survey returns revealed that progress, indeed, was being made, that the network was diversifying — and best practices in hiring and promoting women and minorities were beginning to be shared among the primary law firms. Some firms had established minority intern programs, while another had designated a full-time manager of diversity recruitment. Still, the returns were not entirely heartening. Several firms pointed out the difficulty not only in hiring but retaining highly qualified women and minority attorneys, due in part to the wealth of alternatives and opportunities presented to them by competing organizations. As a whole, the survey showed that DuPont Legal remains short of its goals. Now, the hard questions must be asked: Why are we not succeeding in recruiting the diverse legal force we say we want and need? Why do the very people we say we are trying to attract and promote keep walking out the door? The challenges to hiring and retaining a diverse legal team are many – some perhaps out of the control of either the primary law firms or the Legal Function itself. But there is one area amenable to corporate control, and that is accountability. As strategic partners of DuPont Legal, our primary law firms and suppliers are accountable for diversity as a business deliverable. Over time, their failure to staff DuPont matters with a diverse population of well-qualified attorneys will result in a decrease in the amount of work received.

Seven Steps To Build And Maintain Diversity

Organizational change rarely comes in a single step. To achieve a competitive level of diversity, a series of transforming events must occur. Jack Krol has identified seven specific things that have to happen in DuPont – or in any company – to build and maintain a diverse workforce. These seven steps are applicable as well to DuPont Legal, primary law firms and the business of corporate law as a whole: First, a diversity of people must be sought out and brought into the organization – they have to be hired. Second, people have to be given meaningful, challenging work to do, and must have mentors to help them along the way. In other words, they have to be developed and valued. Third, people must want to stay. They must see role models and feel they are in a positive environment. They must be retained. Fourth, diversity must be seen at all levels of the organization, and definitely among management and leadership – they must be upwardly mobile. People need to be able to look up and see themselves. Fifth, business leaders need to know and understand that all of these things are expected of them. Sixth, leadership must be held accountable. The job of creating awareness is done. Now it’s time for action. Seventh, the ability of business leaders to build and maintain a diverse work force must be evaluated as other business imperatives are – there must be consequences for success or failure. The steps to bringing diversity to the practice of corporate law travel down a path too long overgrown. Today’s business imperatives demand that we increase our efforts in clearing the way for women and minorities. Tomorrow’s success depends on our commitment to maintaining a wide-open, meaningful career path, for all to follow.

Sager, Thomas L. “Changing Partners, Changing Faces: Diversity and the DuPont Legal Model.” The Metropolitan Corporate Counsel, July 1997, pp. 26-38.

Survey Results

Both surveys have been reporting for several years that the gap between the fully loaded inside counsel cost and the blended average outside counsel hourly rate has been narrowing. In the 1996 survey, Price Waterhouse reported that the average fully loaded inside counsel cost was $146 per hour while the blended average outside counsel hourly rate was $197 per hour. 

Several commentators have noted that the maturing of corporate legal departments may be driving up salaries at an accelerated rate as senior staff age. This raises an issue of whether these attorneys are being paid for greater quality work or simply increased tenure.

Both surveys note that a reaction to this is the increased use of temporary staff, including both temporary lawyers and temporary legal assistants. It also appeared during the survey that reporting companies were increasing their paralegal head count and decreasing their secretarial staff, thereby further leveraging attorneys resources.

It is clear that inhouse law departments are being asked to do more with less, since although aggregate legal spending increased during the most recent reporting period, total legal spending as a percent of revenue went down. It is also apparent that companies are depending more on bonuses and stock options as compensation components.

The surveys continue to report that there is a continued trend of bringing more work inside, focusing on such areas as contracts, corporate, labor and employment, regulatory affairs and real estate. Litigation work is still primarily handled by outside counsel, although inside counsel are increasingly taking portions of that work inside, especially matters such as document discovery and settlement negotiations.

Partnering is becoming an increasingly important trend, particularly when companies are able to cut down the number of outside firms to ease their management oversight, often coupling this with concentration of work and ability to secure volume discounts.

Survey respondents also indicated that they plan to use discounted rates more, as well as blended hourly rates and fixed fees, though in practice most who use these arrangements are using them in less than 25% of their matters. The Uniform Task-Based Management System is being used only by a small minority of firms, although a significant percentage of firms indicated that they plan to use it.

Partnering Trends

Several trends are emerging as general counsels work to re-engineer the delivery of corporate legal services in order to increase client service and reduce costs:

1. Companies are insourcing in those areas where the outside/inside counsel cost differential is high and there is enough work to occupy inside specialists;
2. We continue to see more radical experiments, such as those engaged in by ALCOA, Chrysler, DuPont, Whirlpool, Stanford and Monsanto, where corporations look to outsource portions of their law department functions, or radically reduce the number of outside counsel or in the case of Pacific Telesis, required the inside staff to compete with outside counsel for the work;
3. We will see more strategic partnering with companies relying on fewer firms, and using the increased volume of work to secure price concessions, such as volume discounts, or fixed fees where the nature of the matters is relatively predictable, or the overall volume is stable over time and thus predictable;
4. We will see more “rent-a-lawyer” situations where the law department purchases a block of time of a specific specialist from an outside law firm to fill a specific need;
5. We are seeing more “teaming” of inside and outside counsel, with inside counsel taking more of the burden, particularly on certain discovery, but increasingly also on pleadings, motions, settlement discussions and depositions;
6. Teaming is being made easier as corporate law departments migrate away from proprietary mainframe and minicomputer computer software, towards the Windows environment, standardized e-mail platforms, Lotus Notes, and Internet gateways, all of which are enhancing electronic communications with outside counsel;
7. We are seeing more early case planning, budgeting and task-based billing, particularly being used to make various decisions regarding case strategy, focusing on what activities will be done and what will not be done in the litigation;
8. More and more companies are thinking about using counsel in small and regional cities where rates are cheaper;
9. More and more companies outsource legal research to specialty legal research firms;
10. More and more companies are outsourcing work entirely to non-lawyers.

It is apparent that we are only beginning down the re-engineering path, and that we will continue to see more creative and radical solutions, and that increased use of technology and knowledge-sharing software will continue to push us to yet another level of partnering in the years ahead.

Committee On Corporate Counsel

The Committee on Corporate Counsel of the ABA Section of Litigation, which I co-chair with Nancy Barton of G. E. Capital Corporation, continues to be a leader in focusing on solutions to corporate law and practice issues to dialogue between inside and outside counsel representing corporations. Its membership is balanced between inside and outside counsel. It has led the profession in focusing on methods on controlling the costs of corporate litigation through the study of innovative billing and budgeting techniques, imaginative litigation management methods and alternatives to litigation. The Committee sponsors an annual three-day mid-winter meeting on Presidents’ Weekend, a series of regional workshops, and presents other CLE programs. The Committee has also published The Corporate Litigator, ABA Press 1989, and is now working on its second edition, and publishes a regular newsletter with timely articles and law surveys.

Burke, Jr., Francis J. “Reengineering and Compensation Trends and Their Impact on Partnering.” The Metropolitan Corporate Counsel, July 1997, p. 2

Primary Law Firms & Suppliers

There are three phases in managing electronic documents for litigation. The first is the “proactive” management phase when documents are created, long before litigation is in the picture. The second is the discovery phase when electronic documents are produced. The third is the archive phase when electronic documents are merged with the entire case document population for the litigation team’s use. Mismanagement of any phase can impact the outcome of a case.

Phase One – Proactive Electronic Document Management
“Proactive” document management is a new concept in the legal arena. It means creating a retention strategy and a protocol for content at the time a document is generated. A thoughtful strategy can prevent or reduce the possibility of legal action and expense down the road. Robert Byer, a partner at Kirkpatrick & Lockhart in Pittsburgh, has advised a number of corporate clients in this area. He states, “companies should contemplate how retention policies might have an impact down the road.” The strategy should be based on three considerations: the company’s use of documents internally, government requirements including regulatory and statutory law, and any possible litigation down the road, not just for document production, but more importantly, as the basis of a defense. 

Law firms are beginning to add proactive document management as an additional legal service. Dorsey & Whitney law firm in Minneapolis understands the value of proactive management and how new technology opens up opportunities to capture and organize documents when they are created. David Lubben, a corporate partner at Dorsey & Whitney, comments, “In the future, proactive document imaging will be used extensively in corporate practice. Image systems have been used in large case litigation to control costs and improve the result. There is no reason that the same technology should not also be used in other high document volume matters, such as mergers and acquisitions, or public and private finance. The costs and results justification should apply with equal force in the corporate context.”

Most companies are now scanning documents into an electronic system when they are created. As Mr. Lubben suggests, the documents can be proactively managed when the image is scanned. Optical Character Recognition (OCR) processing can capture the full-text, and the documents can be coded for selected fields of information. Copies of the imaged documents on computer disk like CD-ROM are then stored in electronic “file” cabinets as part of the company archive.

An Ounce Of Prevention
A first important area in proactive management is having a records program with a defined document retention policy. This should be designed by the corporate legal department and/or representing law firm lawyers working closely with the company central records manager. A carefully crafted electronic document system will allow the lawyers to respond more quickly and thoroughly to legal requirements like filings and government compliance. For example, documents in regulated areas like banking or chemical manufacturing must be tracked and maintained for compliance purposes. Patent documents must be organized for Federal filing requirements or an international patent application. The CFR Guide to Records Retention Requirements, published annually, sets forth the Federal laws. Protection from future litigation is a secondary effect of a good electronic document retention program. It can lower or eliminate litigation support costs if a suit is ever filed.

E.I. DuPont de Nemours is a company that has taken a strong proactive stance with electronic document management. Electronic records are just one aspect of the corporate records program. Jim Michalowicz, Manager of Litigation Support at DuPont, states that the company has created three “best practices” guides for internal use throughout all divisions:

• “Corporate Business Writing Guide”
• “Corporate Records Management Program Guide”
• “Corporate Proprietary Information Protection Guide.”

The DuPont legal department provides the expertise to ensure that the document retention strategy satisfies the legal requirements of all the various document categories and uses.

The Legal Role Of The IS Department
With the growth of electronic documents in litigation, the company Information Systems Department becomes important. The IS department should be an integral part of a company’s retention strategy planning process from the beginning. Bruce Aho, attorney and Board Chairman of the Quorum Group, has worked with corporate IS people to help them understand their role should litigation arise. He says, “In the future, IS people will be deposed. They will need to know the company document retention policy, the back-up system, and the entire software inventory.” Jim Michalowicz suggests that companies establish a training program to prepare IS people for giving testimony in depositions.

Reckless E-Mail
Document content is the second important proactive area. Most people perceive an electronic memo or letter to be a business document and are quite careful about what they write. They are far less careful about what they include in e-mail or computer “chat” groups. A “chat” group is a discussion held on a network using a groupware program like Lotus Notes1. Although the participants may perceive the interchange to be as casual as face-to face or voice-mail, computer discussions are stored and discoverable. In a 1990 case, Bourke v. Nissan, a Los Angeles Superior Court ruled that Nissan had the right to read an employee’s e-mail. Jim Michalowicz comments that, “Companies should have an e-mail policy that is reviewed and understood by employees and that clearly states its right to review these records.”

Joan Feldman, president and founder of Computer Forensics™ in Seattle, cites several examples in which reckless e-mail comments became damaging evidence. E-mail with jokes about women was introduced against both Mitsubishi and Chevron in sexual harassment cases. The outcome of a breach of contract suit brought by Siemens against ARCO may turn on a reckless e-mail. It is imperative that corporations establish written guidelines and train their entire staff in what is appropriate to write in any electronic communications.

Phase Two – Electronic Document Discovery Requests For Production
Although electronic documents have been around for a long time, technology is constantly pushing the definition of what a document is into new territory. For years, standard requests for document production have included “computer records and electronic recordings.” However, the litigation team should give some thought to exactly what types of media may contain relevant case information. The lawyer or paralegal drafting the request should review the standard language on electronic documents and craft it carefully to include all possibilities. 

A document should be defined to include the original, an identical duplicate, or non-identical duplicate. All earlier drafts or versions are discoverable. Network file management systems like PC DOCS2 and SoftSolutions3 allow the user to create and store multiple versions, all of which should be included in the request for production. The produced document should also include annotations, highlighting, and transmission notations. A transmission notation is an electronic cover memo sent with a document when it is transmitted.

Physical media-storing documents can include paper, phonographic media, photographic film (including pictures, slides, and microfilm), magnetic media (including hard disks, floppy disks, compact disks, and magnetic tapes), computer memory, and optical media.4 Media which store notations, pictures, and sound are constantly changing and expanding. The litigation team facing a case that could involve a number of document storage media should work with a forensic computing consultant before drafting and serving a request for production.

Forensic Computing
Documents may be stored electronically in locations of which the company is unaware. Even if the computer hard drive is physically destroyed, the documents it contained may reside somewhere else like a printer’s memory. When a company believes sensitive documents have been deleted from a hard drive, they may still be there.

The need for forensic computer detectives has produced a number of highly specialized service companies. Computer Forensics in Seattle is one such company. Another is OnTrack Data Recovery in Minneapolis. Rick Moher, a lawyer working for OnTrack in litigation data recovery, comments that “most data damage is unintentional due to causes like power failures.” OnTrack’s core business is providing access to data that has been damaged, deleted, or modified. “OnTrack provides access to data thought to be no longer available.”

The tenacity of computer files brings to mind the old saying, “Gone, but not forgotten.” In the case of computer files, however, the proper adage would be, “Forgotten, but not gone.” In an address at the 1995 American Bar Association Annual Meeting, Joan Feldman cautioned lawyers to “scare the socks off” their corporate clients making them understand that “one (computer) file can equal three files (the original, the back-up to hard drive, and an independently stored back-up); files are hard to kill; and files proliferate.”

“Files (documents) are hard to kill.” When a user deletes a file, many operating systems do not destroy it. Remember Fawn Hall, the secretary whom Oliver North instructed to destroy sensitive documents in the Iran/Contra scandal in 1987? Forensic computing specialists found them on her office PC hard drive. Many systems widely used, including DOS and Windows5, simply delete the pointers that allow the user to find the document. The document itself still resides on the hard drive and will not be destroyed until it is overwritten when the drive runs out of space. A good computer forensic specialist can locate and reconstruct the “deleted” file using special programs like Norton Utilities6. Rick Moher adds that, “ they can even reconstruct files from drives that have been damaged by water, fire or malicious acts.”

Not very long ago, a 180 megabyte (180 million) personal computer (PC) hard drive was considered powerful. Now gigabyte (1 billion bytes) hard drives are affordable in the PC mass market. In fact, for about $400, a business can purchase 5 gigabytes of memory for a PC, one byte for every person on earth. With this staggering amount of memory in common use, electronic documents will be stored and discoverable for an indefinite period of time.

“Files proliferate.” Nearly all computer systems have a backup mechanism as a safeguard should a user lose some work product. Most backup systems include automatic saving mechanisms in operating systems and software that preserve work. If the user forgets to save work and the power goes down, they will lose only a small amount of work product. The user usually is able to set the frequency of the backup. Automatic backup creates a second set of the documents on the hard drive. 

“Forgotten, but not gone.” Most business organizations include system backup as part of their disaster recovery program. All computer output is loaded periodically, usually daily or weekly, onto a magnetic tape or disk and stored in a secure facility. The storage vault is frequently off-site to guard against destruction by flood or fire. If opposing counsel fails to produce documents that the litigators suspect exist, they should specify production of a complete set of backup media. 

Electronic documents can also reside in the memories of printers, fax machines or any other system that requires downloading of the document to operate. If the litigators have doubts about the thoroughness of the opposition’s production, fax and printer memories can be requested for production. Forensic computing experts can then search them for relevant documents.

Phase Three – Merging Electronic Documents With The Case Archive
The electronic documents may be produced on hard disks, hard drives, floppy disks, magnetic tape or any of a number of other media. They may also be produced in any of a staggering number of software programs or in ASCII, the universal computer interchange format. The litigation team faces the daunting task of converting all the documents to one format, indexing them, and merging their data fields with the master case database. The electronic document itself must be merged with entire case document population which may be a mix of paper and microfilm. An experienced litigation support company, like Quorum Litigation Services, that has worked with complex data merges may be required to assist in-house resources.

The litigation team should work with a consultant from the beginning of discovery and form an overall case document management plan that includes all types of documents (paper, film, or electronic) in the case archive. The paralegals and lawyers should be able to search all the documents on one database.

The paralegal or lawyer with a case document population that is a mix of paper, microfilm, and electronic documents need not be alarmed. Searching and retrieving documents will be fast, easy, and thorough. Paper and microfilm will be converted to digital image and merged with the electronic documents. All indexing will be contained in one central database or across databases with hypertext links. All document hits can be found in one search.

Regardless of the physical location of the archive, the litigation team members can work with the archive at their desktop with a PC if they are connected by a LAN or WAN and have litigation document management software. Once a search is complete, the responsive documents can be viewed on-screen, an exact replica of the original.

Preparing For The Future
Although paper-based documents are still predominant, electronic documents are now a part of virtually all litigation. With the tremendous growth of communication through WAN’s and the Internet, electronic documents will begin to avalanche. Paper and film, while never going away completely, will diminish in importance. Solid planning and preparation now through proactive document management strategies can save corporations from being buried in litigation costs. Once a case is filed, proper discovery management can ensure that electronic evidence is found and brought into the case arsenal.

George, Molly. “Electronic Discovery Litigation’s Newest Challenge to Corporate Records.” The Metropolitan Corporate Counsel, January 1997, pp. 45-54.

Primary Law Firms

Well, it’s no joke. DuPont asked FTI and 37 other law firms and suppliers to do just that, and it’s a huge success.

As a result of a new legal model we helped DuPont create, my firm, FTI, a full-service litigation consulting company, has quadrupled its business with DuPont. Plus, we’re building similar alliances with other Fortune 500 clients. Part of this new business comes from the halo effect created by our affiliation with DuPont. Mainly it comes from an almost total shift in the way we do business in the changing legal industry. 

The End of “Business As Usual”

This major shift began several years ago. Tired of searching for business in “beauty contests” that ultimately were determined on low bid anyway, we began an evaluation of the markets for our future.

We conducted a “dispute strategy study,” in which we pulled together a dozen representatives from corporate legal departments, several trial attorneys, a judge, an educator, and some high powered CPA/consultants. For six months we explored what our clients were thinking and what was happening in the legal world.

We discovered how fundamental shifts in the way people think and work in corporate America affects buying decisions in the legal industry. In the evolving legal marketplace, clients were pressuring in-house counsel, outside lawyers and suppliers to create innovative billing structures that reduce cost and reward outstanding results. 

The conclusion: it was the end of “business as usual” for lawyering. Those who for so long had been so dedicated to advising clients about risk, were now going to have to take some risks of their own. It reminds me of the motto of the old French Foreign Legion, “March or Die.” The legal profession today must follow a similar phrase, “Change or Die.”

At the same time, change was on the mind of DuPont. Working under a mandate from Chairman and then CEO, Edgar S. Woolard Jr., to cut the corporate budget by one billion dollars, DuPont’s legal department had begun forging a unique relationship with its suppliers of legal services. We called the new relationship “convergence,” a process in which client and supplier move from different directions toward a common goal. 

At DuPont this became a paradigm shift. From affiliations with 350 outside law firms, DuPont selected 34 Primary Law Firms and four legal services suppliers (including FTI) as strategic partners.

For DuPont, the results have already been significant. For example, just through the coordination of document management in 1996, DuPont has saved approximately six million dollars. In addition, the average case cycle-time has been reduced by just under 44%. But the impact is much greater than cost savings — for both DuPont and FTI.

We no longer have a relationship of client and vendor. We are strategic partners. The relationship is more like a joint venture, where the partners are committed to long term cooperative business arrangements. The partners share goals and visions, mainly because the relationship is based on mutual benefit. 

The Value Added Equation

The mutual benefit can be shown as a value added equation. 

On DuPont’s side of the equation, it gets better results along with lower costs. This is achieved through value-based billing, an alternative fee structure under which the strategic partners share risks and rewards. As explained in the recently published book, The DuPont Legal Model A NEW ERA:

“The goal of today’s marketplace is to balance the clients’ objectives with the lawyers’ rewards. Lawyers’ risks and rewards have become one-sided. The risk is to the clients and the reward is to the lawyers, regardless of the outcome. At the root of this problematic structure is hourly billing, a paradigm that exchanges time for money. Unfortunately, the incentives are misplaced. The lawyer makes more money for taking longer to complete the job, rather than for getting a good result.

“Risk and reward sharing helps the law firms shift into an alternative billing structure, specifically value-based billing. In this arrangement, a client’s fees are directly related to the value of the services rendered, rather than the time spent on the services. DuPont, like other clients, does not want to buy time; it wants to buy results. Value-based billing is tied to outcomes — there is a performance bonus for winning and more incentive for the Primary Law Firms to share risks and rewards. That is, if DuPont wins, the firm wins.”

What’s In It For FTI?

So, DuPont has successfully altered its relationship with outside law firms and suppliers. By limiting the number of firms it does business with and guaranteeing business volume, DuPont focuses and thereby, leverages its purchasing power. The company is assured not only of discounts that average 15%, but the true commitment of a powerful network. But what is the mutual benefit to the outside firms? What do we get out of it?

On our side of the equation the benefits are considerable. We get:

• Reduced Business Cost: The cost of money is reduced through DuPont’s 14-day or less payment cycle plan.
• Reduced Sales Cost: No RFPs and beauty contests to deal with.
• Increased Marketplace Exposure: The DuPont partnership is highly publicized.
• A Technology Edge: The competitive advantage of using new technology — including e mail and a wide area network — to produce more cost-effective and higher quality work products.
• A Competitive Edge: Gained by a staff retrained to work on partnering accounts.
• Networking Opportunities: Being part of a preferred group of law firms and consultants for referrals and teaming.

The opportunity to join an industry-altering venture with a Fortune 500 company.

The value added equation helps us identify and evaluate all sources of revenue and contribution and be responsible for managing them. Otherwise, strategic partnering is a euphemism for a discount.

Our evaluation of DuPont and its leadership told us we could trust them to understand the spirit of this equation and be fair players in this game of looking out for each other’s bottom line. This is evidenced by our quarterly discussions with the people at DuPont. We sit down with them and put rough numbers in the segments on both sides of the equation. None of it is easy to calculate, but we try to make sure both sides are getting value out of the relationship.

This value driven relationship really works for us. In return for the 16% discount we get a fixed fee. We worked out an annual fee with DuPont, divided it by 12 and on the first of each month there is a wire transfer of the fee from DuPont to our bank.

The added value of that is in the lower cost of money and lower cost of sales. We’ve reduced our cost of money created by aged receivables, which, on the incident-driven side of our business, can run as high as 90 to 120 days. 

Because we don’t participate in many “beauty contests” anymore, the cost of sales is radically reduced. We don’t have to pay for all the materials and other expenses associated with competitive bidding. 

Then there’s the value of the DuPont name and the support that goes with it. DuPont has actively helped us secure accounts such as AT&T. DuPont people actually go with us to our potential clients to help land the account. This works for DuPont, too. While the dollar value is hard to quantify, we take the time to do it every quarter so that everyone understands the contributions that have been made on both sides.

We also assign a tangible value to all revenues that come from DuPont’s partnering Primary Law Firms. Last year we received $2 million in revenues from these firms. Much of that business probably would not have come to us if we hadn’t been a strategic partner. In fact, DuPont’s in-house lawyers actively encourage their Primary Law Firms to use our services. 

As I mentioned earlier, our legal services to DuPont, itself, have quadrupled. And they have expanded to include our business development and engineering services as well as our communication and jury services for litigation. 

The relationship also pays off in purchasing power. DuPont Legal includes its partners in negotiations for contracts for telecommunications services, computer hardware and software and travel services. Partnering firms get to capitalize on DuPont’s significant buying power. For example, participating firms save up to 35% in travel costs.

The overall impact of partnering on FTI is enormous. Three and a half years into this new paradigm, and we’ve gone from zero to 15% of our revenues being generated from annualized fee arrangements such as the one with DuPont. Another 30% or more of our revenues come from business partnering relationships, in which there are no contracts but where we handle large volumes of their work. As our CEO, Jack Dunn, said to me when first considering the “risks” of partnering, “The only risk lies in not partnering. The number one issue facing our clients is the cost of obtaining quality legal services and we must provide them with successful alternatives to sky-rocketing fees.”

Today less than half of our revenues come from the classic incident-driven contracts that, in 1992, accounted for all of our business. Our company has had 6,000 clients over the last 10 years. Today we primarily work with 39 key account clients. That’s a major shift in focus. 

That major shift is a result of “convergence,” DuPont and FTI moving from different directions toward a common goal. We believe it’s a new legal model for a new era of lawyering.

Luczak, Daniel W. “Creating a New Client Relationship – The ‘Convergence’ of DuPont and FTI.” The Metropolitan Corporate Counsel, June 1996, p. 52.

This has elevated litigation from an expensive nuisance to a line item in the debit column of a company’s annual report and brought the cost well up on the CEO’s radar screen. The resulting mandate to the general counsel’s office to cut costs and manage litigation more efficiently is not hard to understand.

In last month’s Metropolitan Corporate Counsel, Dupont’s Thomas Sager outlined the ground breaking program that his company implemented to manage the litigation process more efficiently. This piece briefly outlines the benefits such a program gives to Price Waterhouse as an outside provider of litigation support services. 

I. Relationships

For Price Waterhouse, all of the benefits of Dupont’s Convergence Program can be summed up in one word: Relationship. Price Waterhouse has always focused its business on long-term relationships with its Fortune 500 clients. By making us the preferred provider of litigation support services, Dupont is making a commitment to our skills as dispute analysts. We want to do our best not only for the fee but to prove that Dupont’s trust in our abilities was well placed. This forges an enduring relationship that supports the goals of both parties and the important goal of litigation support services. We can achieve these goals without losing our independence.

II. Best Practices

Foremost in our minds is the opportunity to provide the best possible service. By working on repeat matters, we become intimately knowledgeable about the company’s operations and are able to provide counseling that can head many problems off at the pass. In addition, we develop a set of best practices for the corporation that enable us to solve complex business disputes in a quick and cost-effective manner.

We hope to make similar valuable contributions to Dupont as the company continues to seek continuous improvement and development of the best approaches to problem solutions, increased efficiency, case management and early case assessment. For example, our professionals will support inside counsel in risk assessment decisions analysis, business consideration of discovery choices, internal education on the development and management of budgets, sharing lessons learned elsewhere and assisting Dupont in making decisions in the areas of claims resolution. 

Some ideas we are currently exploring on a trial basis are:

• Immediate electronic mail interfacing
• Joint educational programs, including personnel for your partnering law firms
• Exploration of exchange programs
• Immediate exchange of ideas on how to reduce costs

A key benefit of the Dupont system is that it eliminates the duplication of effort and helps ensure consistent response in litigation. This allows us to develop expert testimony and other litigation support services through empirical testing — learning from our efforts to hone solutions and strategies to be the most effective.

III. Investment In The Future

Becoming a preferred provider for corporations such as Dupont provides financial stability to our practice and creates many ancillary benefits for the client. Because we are not living on a case by case basis, we can make investments in things like technology and unique staff members. These investments are used to create cutting edge litigation support techniques that give value to our clients and keep us ahead of our competitors. Also, partnering relationships are consistent with the changing legal marketplace. It is no secret the general counsel are leading a rengineering of the legal marketplace. The demand for innovation in litigation management is no longer one any legal service provider can ignore. By partnering with a corporation such as Dupont, we have the financial incentive to become an efficient producer of services. This allows us to be competitive in terms of price, capture more market share through our innovations, and maintain our margins.

IV. Conclusion

The Dupont model is a harbinger of the future of corporate litigation management. We believe that other corporations will be considering similar approaches to handling their legal costs. The components of the Dupont model are ones that we feel should be mirrored in other programs. They deliver the kind of cost controls that the CEO is looking for while providing for the supporting role of outside independent litigation management services.

Bardnell, Gregory. “The DuPont Convergence Program: How One Outside Service Provider Benefits.” The Metropolitan Corporate Counsel, June 1996, p. 53.

DuPont Collaboration Task Force