Every time I sit down with a client, I tell them what we achieved since we last met, what we’re going to do next and I remind them exactly what we have promised to deliver in their matter. Yes, even in litigation, we define very specific benchmarks and then set out to achieve them. The vast majority of the time we deliver on our promises. In fact, our ability to get paid is at least, in part, dependent on delivering agreed upon benchmarks. Yes, we wake up in the morning thinking about how we will make good on the benchmarks we have identified for the client as deliverables.
So what is a benchmark? In a contract case, it may be negotiating a contract which includes the three key terms that your client must have in order for the deal to make sense. Your risk is that the other party won’t like the language you’ve proposed. Your job is to make sure that they do agree with your language.
Yes, this involves a lot more than marking up a documenting and emailing it to the other side. It requires the attorney to think outside the box. If you have to deliver a non-compete clause and exclusive dealings provision in favor of your client, you better figure how to make those terms acceptable to the other party.
If you didn’t get paid if the other party didn’t accept, how much time do you think you would spend in the morning strategizing about achieving that benchmark? You would not be merely marking up documents in "track changes" mode in Microsoft Word. You would be on the phone educating the other attorney about why the provision is important and fair. You would be imbedding audio comments in your PDF markups explaining how provisions work and why the deal made business sense for the other side.
If you had no idea whether the other side would be agreeable to a non-compete and exclusive dealings contract, the first phase of your project would be ensuring that those provisions would be generally acceptable to the other side. You wouldn’t spend one ounce of time drafting an arbitration clause until you knew that the three most important items which your client required were acceptable in principle before spending the time drafting.
I hear attorneys say that the value billing approach won’t work because there are too many variables beyond the attorney’s control. In many ways, this is an incredible cop-out. First of all, the value-billing project can be defined in a way which accounts for those variables. Second of all, I will guarantee you that if you take risk on those "unknown" variables, you will spend a lot more time in your client’s shoes sharing the risk and, as a result, focusing on achieving your benchmarks.