How Legal Teams Can Work in Agile

“Agile” or its sexier variation “agility” often seem like nothing more than buzzwords of the digital era. Everyone wants to be agile, everyone seeks agility.

We usually associate the terms with agile software development, as opposed to the more traditional waterfall methodology, where you define all of a project’s software requirements and milestones upfront and in great detail, and then you don’t deliver until the product is market ready, or as close to market ready as possible. The problem with this is that IT projects, like marriages, are works in progress and not everyone knows exactly what they’ve signed-up for until after they’ve said “I do”. Conditions change, technology evolves, and customers are impatient. Moreover, in long term projects developers tend to become further removed from the customer while the account managers lose track of the technical complexity of the project or have already moved on to the next opportunity.

Agile development tries to solve these problems by dismantling those silos where teams operate in isolation of each other and by delivering in short imperfect iterations known as sprints. Instead of focusing on the perfect, each sprint allows for customer feedback and correction, improving customer ownership and engagement in the project, permitting the supplier to show value right away, and empowering the development teams to be more innovative. In Agile, you are allowed to fail fast until you get it right. In waterfall, you fail hard and pay delay penalties.

The two major problems with Agile are: first scope creep where you lose control of the development costs in front of a customer with a fixed budget who keeps asking for modifications; and second Agile only works when your customer can reciprocate your agility. Agility requires both a shift in how you build your business case and how you interact with your customer.

When most of us think of Agile, we think of a wall full of post-its and nerds without suits in stand-up meetings. But the concepts and best practices of Agile don’t need to be limited to R&D teams, and many other areas of business are looking at Agile to ameliorate some of the same challenges.

In particular, when a company grows, especially as it globalizes, it tends to suffer from silo-ization or the isolation of key internal stakeholders across a business unit, area of specialization or geography. These teams’ ability to interact is vital to convey and obtain the necessary input, not just for delivering a project but also for making informed decisions or improving communication.

Sitting on puffs during my start-up days

So take a start-up as an example. At first, it is a small team that inhabits the same open-space. When you want to talk to marketing, operations or to the product manager, you pull up a chair. When I worked for a start-up, we’d literally take our laptops and puffs to a quiet corner of the office. In fact, I happened to sit between two web designers. I would bug them all day long with my ridiculous ideas for new marketing campaigns. In a normal company, no one would have paid any attention to me. But in a start-up, nobody cared that I wasn’t Marketing. We all gave our input and were able to try out lots of ideas quickly until we got one right.

Imagine that start-up (or a new business unit) scaling up very quickly. Suddenly you have a product management team of ten people, three regional sales teams, and operations and R&D located at separate sites from the business-facing teams. Next thing you know, your business has become very siloed, communication is strained, messages are lost in translation and teams become tribal. We’ve all seen this happen. Sales doesn’t understand what it is peddling and R&D doesn’t understand what the customer needs. The support functions, like Legal, HR or Finance, become their own centralized tribe out of sync with actual customer and market needs, and what they have to offer is many times too late, out of context, or one size fits all.

Also as companies grow exponentially and teams silo based on geography or subject matter, employee engagement often diminishes. Now one step removed from customers, other teams, or where decisions or products are made, employees lose perspective, rarely receive positive feedback or gain visibility for their work, cease seeing the value in their own output or their roles, and become more entrenched in the group think of their tribe or immediately surroundings. We fight our myopic battles and resort to finger pointing. Sales fights with Operations, Product Management with Strategy, R&D with Implementation, and everyone rolls their eyes at Legal.

The idea behind business agility is that by better defining your customer’s needs and your deliverables, you can build cross-functional squads that work together on the same goal whose output (ie, sprint) can be shared very quickly with the customer. You break down both geographical and subject matter barriers, create a vehicle for communication, promote risk taking in a controlled environment, and empower squad members, giving them greater visibility of customer needs while allowing them to earn recognition for a job well done.

Okay, Eric, got it. Now what does this have to do with lawyers and in-house counsel?

In many in-house legal departments, you have the same issues. You are either organized regionally, by area of expertise, business unit or all of the above. So you have transactional lawyers who are customer-facing and negotiate commercial deals, and you have subject matter experts like competition, privacy or tax lawyers who have their day job of helping the company meet its regulatory obligations, but also need to support the transactional lawyers on the drop of a dime. You may also have other related teams like Risk & Compliance, Industry Affairs, and Information Security (as we do in Amadeus). This means that the Legal Department tends to work in silos as well, and when I am the transactional lawyer in a large deal where I need input from subject matter experts, I become the bottleneck. The business unit that I support wants to quickly get a new product to market and I need to chase the privacy or competition lawyer because I don’t know the answer, I become the bottleneck.

Luckily, I work with some very forward thinking colleagues who made me sit through basic Lean and Product Management training. In a very simplistic nutshell, Lean teaches you to define your output (ie, the “work”) so that you can remove unnecessary tasks (“don’t improve what needs to be removed”) and become more efficient. In Project Management training, I had the revelation that we lawyers – whose inclination is to go at it solo, office door closed or earplugs in, and draft away in silence — should start treating major negotiations as projects with predefined tasks, processes and the coordinated collaboration of others.

And luckily, I also get to work with very smart and capable internal business process consultants who I have recently harassed about working in Agile. What I really wanted to know was how we could design efficient, silo-busting teams in Legal to work in project mode on specific, timely initiatives. These very smart and capable colleagues kept bringing me back to reality. Agile is just a buzzword, they’d tell me, unless you can define your deliverable and the customer need that justifies an Agile solution. So this is what I came up with:

First I don’t want to give myself or anyone else added or unneeded work. People are busy, and if my goal is to build a squad from across different teams within the Legal Department, I need buy-in from the squad members’ bosses. I won’t get them on board if I am wasting people’s time. For this I need to choose projects:

• that relate to new initiatives that the business has prioritized
• that require a holistic legal perspective
• where the team can provide real, tangible deliverables, and
• that are timely, meaning we can help out the business right away

For my company, this would generally mean projects relating to new technologies or products, and in most cases, the deliverables would be either holistic legal guidance on the new product – including on product design from a privacy, security, regulatory and customer relationship perspective (including how you would contract with and charge your customers) – or on producing the contract templates for sale of the product. For other companies it may not be so tech focused, but may mean new lines of business or entering new markets. The key is that you are looking into novel opportunities where you don’t have an off-the-shelf solution at hand. Moreover, you want to avoid scenarios where the business gets your input too late and has to go back and start all over after they have already invested time, effort and resources on the new venture.

Imagine that your company has developed a new service which they have already pitched to a couple of customers. The Sales team is very excited as are the perspective customers. They call you up and ask you for the contract. You say, “a contract for what?” They explain and you use a preexisting template, hoping that making a few changes here and there will do the trick. For the data protection provision, you show it to your privacy lawyer who raises an eyebrow as it looks like data may be stored in various data centers around the world. She asks a bunch of questions and points you in the direction of the information security office. No one ever told them about the project, and they never analyzed the service’s architecture. You are almost too afraid to ask the Tax team whether the locations of the databases presents a permanent establishment risk, and you realize that maybe the IP team wasn’t put in the loop either. Houston we have a problem. The customer is ready to go, but we will likely need to rewire a chunk of the work, losing weeks of effort and resources. Everything from the product architecture to the business case needs to be reevaluated. Worst of all, the business thought that you were the lawyer who solved all their problems, but now you’re the guy who causes havoc and panic. And the worst kind of lawyer is the one who doesn’t have the situation under control.

Again, Eric, we got it. So just tell us how you are going to work in Agile.

Here’s the plan:

Once we have identified the project, we can then assemble our squad. The squad will be composed of six to eight members of the Legal Department, each from different teams. Ideally, I would have:

• One lawyer who supports the business unit who owns the new product
• Another lawyer who supports a different business unit that may use the product or a similar product in the future and who can provide a different perspective
• One privacy lawyer
• One information security member
• One intellectual property lawyer
• One tax lawyer/team member

Depending on the nature of the project, for example if it relates to an area that is self-regulated by industry stakeholders, where the regulations are unclear, or where we are heavily dependent on a supplier, we would then want to include:

• One regulatory lawyer
• One person from Industry Affairs
• One procurement lawyer, or
• One person from Risk & Compliance

Once we have identified our squad members, we set up a meeting with the new product owner who will present us with the initial product plan, prototypes or sales pitches. In this session, we can ask questions and gather information to prepare our first sprint. The product owner becomes our customer, and the purpose of the sprint will be to deliver our initial holistic guidance. These sprints occur over relatively short periods of time, so that we can provide our input quickly to the customer. The process is repeated regularly with new sprints until the squad and the customer are comfortable that the product is ready for market.

In parallel, squad members will report back to their individual Legal teams, informing them of how the new product is developing and sharing information. Throughout the project, we will have:

• Reduced silos
• Gained more across-the-department knowledge of the business
• Learned more about our colleagues and taught our colleagues more about ourselves
• Given ourselves the opportunity to take active roles in the development of new business and ownership in the success of those ventures
• Empowered team members outside of their normal activities
• Built stronger relationships
• Provided more holistic iterative legal guidance, in a more efficient, faster to market way, and
• Hopefully increased overall engagement.

So will it work? I will let you know. But in order for it to work, we need to have very good networking abilities across the business to identify opportunities for collaboration and customers willing to engage with Legal on these projects. If we don’t have good interlocutors or don’t select projects that can deliver real value, then the squad members will quickly lose interest and the customers will lose faith in our ability to deliver. Then we’re back to square one. For now, my plan is to start one project at a time.

Of course there is nothing stopping in-house counsel from proactively participating in squads that are managed by other teams. In fact, we should encourage our lawyers to play more leading roles as business partners, including taking a seat at the table in our internal clients’ Agile projects. Because at the end of the day, if you aren’t invited or going to the party, you aren’t having any of the fun!