We have all heard (or been heard) inside counsel bemoan the performance of a lawyer or a law firm. Such laments invariably beg the question, “why not change?” One barrier frequently mentioned is the cost of switching counsel. In the vein, I draw your attention to an excellent post by Rees Morrison in his Law Department Management blog. His conclusion is that “such concerns are over-rated.” I tend to agree, and for many of the same reasons.
In addition to the points Rees raises, however, there are a couple of others worth considering. First, the “learning curve” process is one that fits perfectly with a fixed fee concept, allowing inside counsel to know exactly what the cost will be. Likewise, fee agreements with respect to the balance of the case should be much easier to negotiate. In other words, there is no excuse for inside counsel to be left wondering how much new counsel will cost. The only issue should be whether the change is worth it.
Last point. Given the ease with which such a situation plays into an alternative fee agreement, I encourage inside counsel to think beyond the immediate case and consider whether the opportunity at hand is really an opportunity to experiment with alternative fee arrangements so you will know whether such arrangements are within your comfort zone and help solve some of the problems you may have with outside counsel.
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