When it comes to the procurement of legal services, probably the most contentious discussion between your sourcing organization and the legal department is about scoping. Sourcing will insist that a clear scope needs to be put together for an engagement. How else will the law firm know what to do? The general counsel will argue that it is difficult to say how the matter will develop and the scope is likely to change.
As not often in life, both arguments are equally valid. Scoping is important and really the only way for the legal department to make up their mind about what they want the law firm to do. Asking a law firm to do work without a proper scope, is like asking a plumber to ‘have a look at the bathroom‘. On the other hand, the development of legal matters is notoriously hard to predict and the scope is likely to change as things become more clear.
Having said that, legal departments do things that are hard every day of the week. Just because it is hard to do, is not a reason not to do it at all. The trick is to make sure each scope contains the below elements every time. The only difference from time to time should be the level of detail. If the scope is something you do regularly and you have a good idea of how the matter will typically develop, have a standard scope with a lot of detail ready. If this is a one-off matter with an unsure outcome, focus on what you know and let the firm fill in the gaps in their offer.
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Background and Facts: Provide a clear overview of the matter, including the underlying facts, relevant documents, and any existing legal proceedings. This is often where most of the attention goes to and the more information you give the firm, the better the offer will be. However, it is important not to stop here.
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Legal Issues and Objectives: Outline the specific legal issues that need to be addressed and the desired outcomes or remedies. Again, typically comfortable territory for the in house counsel. Just make sure to keep going.
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Scope of Services and expected products: Define the specific legal services required, including drafting of documents, legal research, negotiation, representation in court, or other necessary actions. Surprisingly often this is left way too general. The firm will want to give you what you want so if this is initially a short e-mail from the partner with the conclusion on top, better let them know. Especially if a firm is not familiar with your preferred way of working yet.
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Timeline and Milestones: Establish a timeline for the engagement, identifying specific milestones and deliverables along the way. This is where the unpredictability of matters becomes a problem. Here I would focus on what you know: initial deadlines, upcoming meetings etc. When even those are not known, focus on the practicalities of the process with the firm: kick-off meeting; initial input from firm; follow-up meeting etc.
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Communication and Reporting: Set expectations for communication between yourself and the firm, including frequency of updates and reporting formats.
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Fee Structure and Billing: Clearly define the fee structure, including hourly rates, caps or other arrangements. Take capped fees per phase or product as a starting point. The firm will not be shy to let you know if they think a cap is not realistic although they should be able to cap the work.
Good to know: if you use the CounseOps solution for the procurement of your legal services, the creation of the scopes are part of the service and the use of the scope is the starting point of the process. In other words: all your engagements will use pre-defined scopes without any additional effort for you or the firm.