The unplanned work having to be undertaken, Gartner explained, is “particularly taxing” on legal departments because of persistent inefficiencies and waste in the legal department’s typical approach to new and emerging issues. These, Gartner said, can be split into two categories: over-analysis and overspending.

Among in-house counsel and legal operations managers, over half (52 per cent) are relying on over-lawyering (i.e. advice that is overly thorough) and 58 per cent rework initial analyses and recommendations.

On the question of overspending on expertise, 55 per cent are defaulting to customary outside counsel providers regardless of cost and half go over budget to get a faster turnaround. Moreover, 53 per cent are spending significant time reworking law firm guidance.

Legal departments are also reporting a higher volume of work relating to labour and employment (44 per cent), government affairs and relations (42 per cent) and regulatory and compliance matters (39 per cent).

Reflecting on the findings, Gartner legal and compliance managing vice-president Vidhya Balasubramanian said: “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.”

“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,” she said.

Twenty percent of the time spent on unplanned work is wasted, Ms Balasubramanian continued.

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“That’s over a thousand work hours in a year at a typical $1 billion 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.

When it comes to reclaiming some of those wasted hours, Gartner proposed, legal departments must embed decision principles with lawyers to reduce the inefficiencies in their execution of unplanned, high-urgency work.

“This approach improved performance more than twice as much as early identification of emerging issues, another approach to mitigating the fallout from unplanned work,” the company said in a statement.

“This means leaders need to update lawyers regularly on appropriate risk posture for different kinds of work and provide a defined approach for communicating this posture to outside counsel. 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.”

“Decision principles need to be both broad enough to be useful as guidance for different scenarios, yet prescriptive enough to direct the desired response,” added Ms Balasubramanian.

“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.”

At present, Gartner noted, fewer than one in three legal leaders embed decision principles for unplanned work.

Common objections are that risk tolerance changes too quickly with emerging issues to set fixed decision principles, it mused, “and that 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”.

“Think more in terms of establishing a process to guide risk tolerance for resourcing decisions, rather than a fixed set of rules,” concluded Ms Balasubramanian.

“Counterintuitively, with new and emerging issues, departments need more mechanisms to resolve grey area issues, not less.”