Like most outsourcing attorneys, I have experienced the telephone book-sized outsourcing deal.  Truth be told, I even created a couple in my day.  Being in the relatively unique position of in-house outsourcing counsel, I also had the opportunity to deal with the other end of the process – governance.  While these documents were good, sometimes great, from a purely legal standpoint, many of them failed as business resources, too complex and impenetrable for mere mortals (e.g., non-lawyers) to use in their day-to-day operations.

Why does this happen?  After all, it isn’t brain surgery, is it?  Maybe it should be.  While brain surgeons are highly trained specialists – and may not be able to tell an aorta from a femoral artery – they are supported by people and devices that constantly monitor the condition of the patient during surgery.  If there is a loss of blood pressure or a heart arrhythmia, the monitors start beeping and they bring the crash cart and often save the patient.  In such situations, the trauma generalists – the people who know how to keep the patient alive – push aside the specialists and do what is necessary to preserve life.

Outsourcing deals aren’t quite so lucky.  Unlike brain surgery, a major outsourcing deal usually has few, if any, corporate “monitors,” either human or mechanical.  The deal tends to progress in a vacuum, oblivious to the actual, day-to-day goings on in the organization.  The specialists specialize, creating this wonderfully thorough, comprehensive (i.e., long and complex) deal, and then leave the room – leaving to internal management the operation and governance of the deal.

Many of the lawyers and consultants doing these deals have never had to govern them on a day-to-day basis.  They know the law and the technology, but they may not know what works and what doesn’t, how much detail is necessary for day-to-day operations and where the frequent friction points may be.

Given the relatively high failure rate of outsourcing deals and the anecdotal evidence pointing to poor governance as a frequent root cause, we in the legal profession may not be serving our clients in the most effective manner.  This series will suggest ways to improve the “governability” of a deal, through architecture, planning and negotiation, with the goal of creating a document that can become a vital business tool which a client can use to manage its outsourcing relationship.