THE ATLANTIC--Something is out of balance in Washington. Corporations now spend about $2.6 billion a year on reported lobbying expenditures—more than the $2 billion we spend to fund the House ($1.18 billion) and Senate ($860 million)
To Get Past the Billable Hour, Law Firms and Legal Departments Need to Operate More Like the Businesses They Serve
The billable hour is not the immediate cause of all that ails the legal industry. Freedom from the tyranny of the billable hour would be a fine start. But there is much more to do and discuss. For proof, look no further than law departments. Many corporate law departments suffer from the same pathologies as law firms despite having cast off the perverse incentives of compensable time sheets.
The most common rejoinder to my suggestion that the billable hour is not the immediate cause of all evil in the universe is that law departments are populated by law-firm refugees. Whether or not this analysis is accurate, it concedes the basic point that culture, no matter the original source, is self-perpetuating and that simply eradicating the billable hour is not sufficient to drive the necessary changes. Law departments are filled with autonomy-seeking lawyers who, at a certain size, are highly unlikely to spontaneously organize into a well-functioning team. There are good reasons that traditional law practice has “no economies of scale” .
Rather, as law departments grow, they encounter the same diseconomies of scale that have plagued large law firms for decades. Progressive law departments have responded by moving away from being a law firm embedded in a company and, instead, have started to function more like the businesses they serve. Recent increases in and recalibrations of spend have been directed toward operations personnel and technology. Last year, for the first time, a majority of law departments used metrics. Last year, for the first time, a majority of law departments used an RFP process.
Secretive Group That Wants to Limit Juries in Arkansas Med Mal Cases Plans to Expand Efforts
The Arkansas attorney general has certified the ballot title for a proposed constitutional amendment that would require the General Assembly to limit damages in medical lawsuits, but its health provider backers are pulling that amendment in favor of another they say will be more comprehensive.
Chase Dugger of JCD Consulting Services said the particulars of the new proposed amendment were still being considered Monday, but the bill will be submitted to the attorney general’s office soon.
“Basically at the end of the day, we talked to a lot of health care providers last week and realized that a more comprehensive bill was needed to help lower health care costs and improve access to health services in Arkansas, so we’re going to file a more comprehensive bill hopefully today that will cover all those things,” he said.
$18.7 Billion BP Oil Spill Settlement Receives Final Approval
U.S. Judge Carl Barbier granted final approval on Monday to BP Plc's civil settlement over its 2010 Gulf of Mexico oil spill after it reached a deal in July 2015 to pay up to $18.7 billion in penalties to the U.S. government and five states.
"Today's action holds BP accountable with the largest environmental penalty of all time while launching one of the most extensive environmental restoration efforts ever undertaken," U.S. Attorney General Loretta Lynch said in a statement.
Medical Device Makers Opposed to Limiting Patient Risk Through FDA’s ‘Emerging Risk’ Proposal
Industry stakeholders have answered the FDA’s call for comments on a draft guidance that proposes an earlier public release of risk data regarding medical devices, even before that data is investigated and analyzed. Several manufacturers — including Abbott and GE Healthcare — as well as the Advanced Medical Technology Association (AdvaMed) argued that information in the suggested safety alerts would be unreliable, could do irreparable damage to valuable products, and could cause unnecessary confusion for patients and providers.
In the current system, the FDA investigates and validates all reports of adverse events related to medical devices and releases recall notices, safety advisories, and press releases accordingly. The guidance, released in January, suggests the information be released as soon as the FDA begins monitoring the device and investigating the event(s), with hopes of “limiting the number of patients exposed to the potential risk while the issue is being further evaluated” and increasing vigilance and reporting by clinicians to the FDA.
These “emerging signals” — defined as any new information affecting the benefit-risk profile of a medical device — would be released without evidence to confirm their legitimacy and without a recommended course of action from the agency.
The guidance comes in response to recent lawsuits involving medical devices — including contaminated duodenoscopes and vaginal mesh implants — which were widely used before adverse events were fully reported and the products recalled. Sen. Patty Murray (D-Wash.) praised the guidance and said that any information that could allow doctors to make more informed decisions is critical for ensuring patient safety, according to the Regulatory Affairs Professionals Society (RAPS).
Study: Clients Want More Efficiency From Law Firms, But Not Sure What That Looks Like
Corporate clients are displeased with their law firms. And the displeasure is not confined to opinion surveys. A decades-long decline in realizations has been paired with flattening of demand for external law firms. Overall demand remains on upward trajectory, but law departments are insourcing and sending increasingly more work to alternative service providers. It is abundantly clear that corporate clients are not satisfied with the status quo and that law firms will need to change to meet evolving client expectations.
But is it really that clear? Apparently not. Every year, Altman Weil asks managing partners why they are not doing more to change the way that legal services are delivered. Every year, the managing partners’ primary response is that “clients aren’t asking for it.” On first glance, it beggars belief that anyone could look at the data and reach the conclusion that clients are satisfied with their outside counsel. Except that isn’t what the managing partners are saying—other survey questions reveal that they are quite cognizant of client discontent. Rather, as a husband I can attest that it is all too common to be fully aware that someone special is upset with you without having the faintest idea why, let alone having any clue as to what, if anything, can be done to remedy the situation.
Clients complain that law firms are not cost-conscious or innovative. Clients believe that law firms are not doing enough to complement legal expertise with business processes and technology. In the traditional law firm model, there are literally, “no economies of scale.” So clients bring expertise in house, invest in technology, and unbundle legal services so the labor- and process-intensive activities can be sent to service providers deliberately designed to take advantage of economies of scale.
calls for “efficiency,” “cost-effectiveness,” and “innovation” are maddeningly vague. Beyond the serious few, clients have previously proven quite unreliable in following through on decades of strong public statements on more tangible initiatives like alternative fees and diversity.
In private, many partners wonder whether most clients would know efficiency if they saw it. These partners consider insourcing and alternative service providers to be pure labor and real-estate arbitrage. Almost every abstract discussion the partners have with a client about efficiency devolves into a concrete discussion about discounts. The discount discussion occurs with every firm and seems completely unmoored from how legal services are actually being delivered. Firms wonder what, if any, innovations clients will actually reward. It seems that no matter what firms do, clients are going to ask for the same discounts and writedowns. Why invest in innovation if clients don’t actually care—i.e., if clients aren’t asking for it?
Public Citizen: DOJ ‘Going Soft’ on Pharma Crimes
A new report from the consumer group Public Citizen says the feds collected just $2.4 billion in penalties from pharma from 2014 to 2015, less than a third of the amount levied in 2012 and 2013--a tally that came to $8.7 billion.
That might be because drugmakers have wised up to the cost of breaking the rules of marketing--in the U.S. and abroad--and financial reporting. Mega-settlements don't just cost money, they cost in public opinion, and the pharma industry's image isn't so stellar already.
It might be because courts are more demanding when it comes to proving a False Claims Act case, as some legal experts have suggested. Or that the DoJ isn't going after off-label marketing as vigorously as in the past, as free speech defenses in such cases gain momentum.
Public Citizen, however, says one reason for the declining dollar value of settlements is that the DoJ has gone soft on pharma infractions. The group points out that criminal penalties took a nosedive from 2012-2013 to 2014-2015, falling from $2.7 billion in the earlier period to just $44 million more recently.
BigLaw Mergers Lead to Higher Fees with Less Value – GCs Looking More to Smaller Firms
When FMC Corp. hired a procurement consulting company this year to analyze potential cost savings across any indirect spending, it sent a shudder through the legal department whose general counsel admits she was a bit skeptical at first of the impact such data analytics would have on her choices for outside counsel.
But for general counsel Andrea Utecht, she is willing to see where the process will take her as she also has to deal with weeding out the duplication of law firms in a number of regions after FMC’s acquisition last year of Denmark-based Cheminova.
Utecht is far from alone when it comes to in-house counsel looking to adjust their outside law firm complement. While convergence is far from new, general counsel have expressed a growing willingness to experiment with smaller firms and a skepticism of some of the techniques used by larger firms to address costs. And as convergence of clients through acquisitions increase, or new company leadership comes in, the need to review outside counsel rosters also rises. But one thing that was clear from their comments was that no one approach is a cure-all to the pricing pressures and results-driven needs of in-house counsel.
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