Ed. note: This is the latest installment of Inside Straight, Above the Law’s new column for in-house counsel, written by Mark Herrmann.

This post is a two-fer: It both suggests a way for outside lawyers to develop business more effectively and offers a tip to in-house counsel to protect their legal departments. (I bet you can hardly wait.)

First, the business development tip.

Outside lawyers often ask whether in-house lawyers are annoyed or impressed by the brochures that firms mail (or e-mail) to clients and prospective clients. I, at least, am not annoyed to receive those things. It’s awfully easy to delete things unread, so they don’t exactly impose a burden on me.

But am I impressed by the brochures? Obviously not; that’s why I now typically delete them unread.

What’s unimpressive about the brochures? Let me count the things….

First, the content. A typical brochure tells me that a case recently came down; the case said X; and therefore a case came down. It’s gotta be a mighty fascinating case for a purely descriptive brochure to interest me, but most law firms write purely descriptive brochures.

(It’s really no surprise that typical brochures are unimpressive. How, after all, do they get written? Senior partner hears that an important new case came down and says that the firm must quickly crank out a brochure to beat the competition. Senior partner asks more junior partner to write up something. Junior partner enlists associate who promptly types away that in the case of Smith v. Jones, someone sued somebody for something. The trial court held something. And the appellate court held something. So everyone should know that the appellate court just handed down that decision. Junior partner says the firm should print it up and send it out. There’s no quality control, but the senior partner is satisfied that the firm acted. The resulting brochure hits my computer screen, and I’m delighted to delete it unread.)

Even brochures that are not purely descriptive often do their best to hide the ball. The cover e-mail says, for example, that the Trial Practice department of BigLaw Firm is pleased to present another of its periodic publications analyzing issues of importance to corporations. To read more, I should click below.

The only thing I’m clicking on is the “delete” button.

But if I accidentally hit the wrong key, the brochure opens with an introduction saying that an important case recently came down. The bulk of the brochure then describes the case and only at the very end does the author provide a paragraph or two of analysis. That’s better, but still not good.

What would be more effective?

Think about what may actually matter to the recipient of the brochure. Assemble a cover e-mail that identifies — in a short sentence or two — the key point of the brochure. And invite the recipient to read more, if the topic is of interest. That way, if your point (and your short sentences) are relevant and good, I’ll keep reading. If your point is irrelevant to me, I’ll delete the brochure unread. You’ll both have given yourself a chance and done me a service.

Here’s a concrete example of what I mean, and it contains the second part of this blog post — a tip for in-house counsel.

Earlier this year, the federal court in New York handed down a discovery order in Gucci America, Inc. v. Guess?, Inc., 09 Civ. 4373 (SAS) (JLC), slip op. (S.D.N.Y. June 29, 2010) (link here, courtesy of ABA). During discovery, it turned out that an in-house lawyer monitoring a trademark case was only an “inactive” member of a state bar. The magistrate judge held that no attorney-client privilege applied to communications with this person, because he wasn’t properly licensed. And the corporation itself could not claim the privilege because the corporation had not made “any effort to ascertain [the in-house lawyer's] qualifications as an attorney” during the eight years he had been employed.

This is a good issue. (It may be a bad result, at least for certain corporations, but it’s a good issue for client development.) This issue matters to corporations, and it’s therefore opportunity knocking for outside counsel. Indeed, law firms seem to have realized this: I must have received a half-dozen law firm brochures addressing the Gucci case in the weeks after it came down. But only one outside lawyer did the effective thing — and it didn’t even require the effort of writing a brochure.

One lawyer sent me an e-mail that said, basically, “The S.D.N.Y. just handed down an opinion that says that in-house lawyers with bar licenses on ‘inactive’ status are not attorneys within the meaning of the attorney-client privilege. And the court held that the corporation itself could not claim the privilege because it had made no effort to learn the lawyer’s bar status. Consider doing this to protect yourself from that result: (1) send an e-mail to all of your in-house lawyers asking them to confirm their bar numbers, the state (or country) in which they’re licensed to practice, and that their license in on ‘active’ status, (2) show an administrative assistant (or paralegal) how to find the state bar (or national) websites showing bar status of each lawyer, and have the administrative assistant confirm that each lawyer is active, and (3) put a reminder on the assistant’s calendar to check the bar status of each lawyer annually.”

The e-mail continued, “That’s really all you need to know about the case, but, if you’d like to learn more, I’ve attached a link to the decision below.”

Perfect! He told me what mattered, suggested an easy way to avoid a possible problem, and invited me to read more only if I cared to.

Don’t tell me that the problem the lawyer identified was obvious and the solution just common sense. That may be true, but most law firms missed this trick. Most law firms sent me brochures about “an important case that may matter to you,” and I deleted most unread. When I later went back and looked at a couple of those brochures, they tended to describe the case and note the danger, but not to suggest any solution at all — even the obvious one.

Worse yet, several brochures analyzed the things that mattered to law firms, but missed the preventive steps that a corporation could take. Thus, some firms concluded from the Gucci case that lawyers should (1) always do informal discovery to check the bar status of in-house lawyers working for their opponent, and (2) be wary of listing e-mails to and from an “inactive” lawyer on privilege logs, because the privilege won’t hold up. Those are perfectly good conclusions, but the author is looking at the case from the perspective of an outside litigator, not an in-house lawyer. The in-house lawyer will be most interested in the immediate preventive steps his corporation should take, and only then interested in future litigation tactics.

So this blog post is a two-fer: First, for law firms, send short e-mails that briefly describe a problem and a solution, and then invite in-house counsel to read more, if she cares to. When you’re drafting your e-mail and brochure, put yourself in the shoes of in-house counsel, so you’ll say something that matters to your reader. That e-mail may actually reach, and interest, the target audience.

Second, for in-house lawyers: Six months ago, you deleted unread a bunch of brochures about the Gucci case. Those brochures actually raised an issue that matters to you. But there’s no need to go back and read those silly brochures now. Just implement a process that regularly checks the bar status of all of your in-house colleagues.

Earlier: Prior installments of Inside Straight


Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law.

You can reach him by email at inhouse@abovethelaw.com.


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