Unplanned work due to COVID-19 burdens US legal leaders, survey finds

Unplanned work due to COVID-19 has been a burden on legal and compliance leaders in the US, a survey conducted by US research and advisory firm Gartner Inc. has revealed.

Labour and employment issues have contributed the most to legal departments’ workload according to a survey of 286 legal leaders, with 44% of respondents reporting an increase in the volume of work related to this field since the COVID-19 pandemic struck. This was followed by government affairs and relations (42%) and regulatory and compliance matters (39%).

As a result, 68% of respondents are having a difficult time managing their workloads.

“Nearly two thirds of legal leaders tell us they have been pulling resources from other workstreams to support unplanned work since the beginning of the pandemic,” said Vidhya Balasubramanian, who is the managing vice president of Gartner’s legal and compliance practice. “This added burden of unplanned work comes at a time when every department is facing severe cutbacks to mitigate the ongoing economic effects of COVID-19.”

Legal departments in particular struggle with unplanned work due to “the persistent inefficiencies and waste in the legal department’s typical approach to new and emerging issues,” Gartner said. According to the firm’s research, such inefficiencies can be categorised into over-analysis and overspending.

Balasubramanian said that 20% of the time allocated to unplanned work was “wasted”—amounting to “over a thousand work hours in a year at a typical US$1bn company with 10 full time employees in the legal department.”

“As legal departments address more complex and unpredictable issues, their workload will only continue to increase, and most are not addressing the sources of this waste and inefficiencies,” she said.

To address this issue, legal leaders need to “embed decision principles with lawyers,” Gartner said. This approach has been implemented by less than one in three legal leaders, with the typical objections being “risk tolerance changes too quickly with emerging issues to set fixed decision principles” and “lawyers tend to resist any complex constraints on the resources they may use because they believe decisions rules will diminish the quality of legal advice they can give.”

Balasubramanian explained that in handling novel “grey area” issues, departments should have a greater number of mechanisms in place.

“Think more in terms of establishing a process to guide risk tolerance for resourcing decisions, rather than a fixed set of rules,” she said. The decision principles to be embedded should be “broad enough to be useful as guidance for different scenarios, yet prescriptive enough to direct the desired response.”

“This will reduce the over-conservatism that can slow legal departments and their business clients, and pre-empt the rampant escalation, rework and duplication of work within legal departments,” Balasubramanian said.

Under this approach, legal leaders should provide lawyers with regular updates on the appropriate risk posture for various matters. They should also outline how lawyers can advise external counsel of this posture.

“It’s also important to guide resourcing decisions by clarifying how to act on unplanned work, offering a clear overview of all the external resources at lawyers’ disposal and codifying the categories of outside counsel and alternative legal services and when it is appropriate to engage them,” Gartner said.

The firm reported that this approach was more than twice as effective as identifying emerging issues early—another suggested solution to the workload problem.