General Practice, Solo & Small Firm DivisionMagazine
Volume 17, Number 4
WHEN DOES THE CONSULTANT GO TOO FAR
BY John L. Mellitz
Certain subjects are guaranteed to get attention. Sex is one. Consulting is another.
The former draws attention because of familiarity and common experience. The latter because it lacks a clear definition, deals with matters about which most people have very little knowledge, and poses a threat to one's authority, pocketbook, or both.
The title of this article is not an abstract question. It is one that frequently arises at some point in a consulting engagement, and it represents a breakdown in communication, or a misunderstanding between the consultant and the client. Often, it foretells the failure of a consulting project. All too often, it represents a mindset that existed from the inception of the project. To respond to the question, one must first ensure that the consulting relationship is one of mutual trust.
Most independent technology consultants would agree with me that lack of trust is a serious, and not uncommon, problem when serving lawyers. This is particularly true with regard to solo and small firm lawyers who cannot delegate responsibility for implementing a computer system to a management committee, MIS director, office administrator, or some other party who can devote the necessary time and attention to overseeing the project.
Only when the lawyer regards the consultant as an agent for accomplishing a goal that is beyond the lawyer's available resources can a consulting project begin.What It Takes to Be a Consultant
The term "consultant" encompasses everything from an unemployed slacker who was fired from a third-rate MIS department, to brilliant advisors fluent in both the technical and practical/business aspects of their field.
In Silicon Valley, computer consultants are often programmers-highly skilled technicians with special knowledge of a particular computer language or platform. They often lack any common sense or fundamental business knowledge whatsoever. All they can do is "make something happen" according to specifications handed to them by an MIS director or systems analyst.
At the other end of the spectrum are firms such as Andersen Consulting, Altman Weil, and Hildebrandt. These are the computer consulting equivalents of "law factories"-huge organizations that are unaware of the fact that solo practitioners make up about 60 percent of the lawyers in the country today, and more important, don't give a squat.
Then there are consultants such as those of us who frequent Internet discussion groups, (List Serves) and have made it a point to become familiar with the problems faced by solo and small firm practitioners. (For convenience, I refer to this as the SASFIRM market.) We are often solo practitioners ourselves, or small consulting shops that are unique in our skill sets, interests, and abilities.
Some legal technology consultants are former lawyers who just got carried away with their hobbies (like me), have a penchant for picking up technical concepts (but are not technicians), and have a superior understanding of the market they serve. Included among us are contributors to this and other law-related publications; members of national, state, and local bar committees and sections; and in several cases, practicing lawyers who divide their time between consulting and law.
We network with lawyers and join legal organizations, just as lawyers join civic organizations and country clubs, and generously contribute our time to worthy causes. We do this not just to "pan" for clients, but also to keep abreast of the trends in the profession and attitudes among our client base, and to continue to serve the profession in any way we can.
Other consultants are skilled technical people who found the SASFIRM market particularly interesting and decided to specialize in it. Among these are consultants who have become familiar with software having broad application in the legal market, such as Time-slips Certified Consultants, Time Matters Authorized Independent Consultants, Amicus Partners, etc. Many of these are top-notch independent legal technology consultants, but not lawyers.Independence Day
The most important thing you must consider to ensure that a consultant does not "oversell" you (i.e., "go too far"), is the consultant's degree of independence. Many consulting firms are nothing more than vendors capable of convincing you that their product is the only one right for your situation. If, in fact, they happen to be right (purely by chance), then they may be the best thing that ever happens to you. More likely than not, however, their recommendations are, at best, not optimal for your practice, and at worst, harmful and totally inappropriate. Keep in mind that you are not their client...you are their customer. They are employed by their client, or their clients are manufacturers of certain products, or providers of specific, proprietary services.
True legal technology consultants sell only their time and skills, just as lawyers do. They represent you in your dealings with the dynamic, rapidly changing computer industry. Yet the bottom line is that while some legal technology consultants may hold themselves out as independent, there is really no such thing as a truly independent consultant. We all eventually have to make decisions as to which products we are going to maintain in our inventory of recommended products. We look for products that are flexible and versatile, so that they can meet the needs of as many clients as possible. We may be familiar with several such products, but generally, we settle on a few as our favorites in given areas because we think they do a superior job in most situations where they are appropriate recommendations.
There is always a subjective element to such decisions. The situation is not unlike that of estate planning lawyers who recommend certain bank trust departments because they are used to working with them, have confidence in them, and regard their services as appropriate for many of their clients.
Usually, there are a limited number of players in a given area that are recommended by more consultants than others. This may be an indication of the overall quality of the product, including its functionality, the quality of the technical support, the viability and business philosophy of the manufacturer, and myriad other factors that you pay a consultant to evaluate.
For example, you will find that many legal technology consultants favor one of three or four case management systems, even though there are many such products available. That's a pretty good hint that those few products are good bets, from an overall standpoint, but there may be other products out there that are much better technologically, and that may even appear to be a better fit for your particular application. In most such cases, the consultants have weeded them out for some reason. That's why you hire a consultant.
Having established an inventory of recommendations, and having settled on favorites in the various areas, some consultants develop a great deal of expertise in those favorites-expertise that they want to trade on in the form of installation, configuration, and training. This marketable expertise precludes them from being completely independent, because they are going to be inclined to recommend their favorites with a view toward additional fees. There is nothing wrong with this, as long as the consultant is up front about it, and makes an honest effort to be as objective as possible.
The consultant also should inform you when you are asking for advice that is outside her comfort zone, or when the consultant doesn't feel qualified to render advice in a given area. Some consultants, especially those just starting out or who need the money, will profess expertise in a given area, and as soon as they're out the door break into a cold sweat and spend the next several days in a crash course to gain a modicum of knowledge and skill in that area. Worse yet, they may try to bluff their way through without the effort.
You have to judge for yourself just how objective the recommendations are. You can be reasonably sure the recommendations are appropriate, if the consultant (1) doesn't stand to gain financially from the sale of a recommended product; (2) discloses the benefits they ultimately may realize as a result of the recommendations; and (3) provides reasonable and credible explanations for the recommendations.Judging a Recommendation
A good consultant will recognize when a product recommendation is immaterial. For example, I decided long ago that I could not be an expert in network operating systems. If I tried to be one, I would be spreading myself too thin. I soon realized that in many cases, if not most, the needs of my clients (mostly solo and small firm practitioners) were such that a system based on any of the major providers of network operating systems (Microsoft, Novell, Artisoft, etc.) would be more than adequate. After performing a needs analysis and eliminating obvious misfits, it usually came down to who is going to install, configure, and support the system-NOT which system is "best."It's All About Relationships
If you do not trust your consultant, then there is nothing to hang your hat on. Conversely, if you do have the trust and confidence, you should be able to communicate freely with the consultant without fear of being railroaded into accepting the consultant's "agenda."
Rewind: Did the Consultant Go Too Far? If you must ask that question, then more likely than not the answer doesn't really make any difference. The prospect of a viable consultant/client relationship is slim, given the fact that the client starts out by questioning the consultant's judgement.
This is not to say that as a client you shouldn't get a second opinion. Such a step is just plain good business sense. It doesn't mean that you don't trust the consultant. It simply means that there is enough at stake, either in terms of money, time, or effort, to warrant some sort of assurance that the tentative decision to retain the consultant is well-founded.
John L. ("Tim") Mellitz is an attorney who practiced law for 16 years, and for the last 14 years has practiced legal technology consulting as Mellitz & Associates, which specializes in the automation of law firms. He assists small- to medium-sized law firms in the design and implementation of microcomputer systems.