Biglaw, In-House Counsel, Litigators, Partner Issues

Inside Straight: The Sins Of Inside Counsel

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

It’s time for the other side of the coin.

Sitting here in the catbird’s seat, it’s easy to criticize things that outside counsel do. (It’s not just easy; my hope is that it’s also worthwhile. When I was in private practice, I paid close attention when I learned about things that annoyed clients.) But we’re equal opportunity critics here at ATL. It’s time to turn my sights on myself: What do inside counsel do that works to our own detriment?

I haven’t heard much from my outside counsel on this score, perhaps because I’m the client, and outside counsel are reluctant to criticize me (to my face). And I don’t innately sense all the things that I’m doing that are grossly stupid. But I do remember a fair number of silly things that inside counsel inflicted on me when I was at a law firm, and I can work backwards from there.

What are the sins of inside counsel?

First: Be wary of your influence. When I was in private practice, we’d sometimes send a brief to the client for review, and the client would suggest six idiotic changes. We’d struggle with this: “Making any of these changes will make the brief worse. But we can’t just tell our client that she’s nuts and refuse to make any of the changes; she’ll be offended. We probably have to make revisions to reflect three of her suggestions, and we’ll reject the other three. Which three of the client’s suggestions do the least harm, and how can we make changes that nod in the direction of the suggestions without screwing up the brief too badly?”

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Clients sometimes forget that they’re clients. When they speak, intelligent outside counsel listen and act accordingly. So inside counsel should be careful when they speak. If you’re unsure of something, seek advice. If you’re going to require action, be sure that the action serves a helpful purpose and is worth the cost. If you speak without thinking, you’re likely to trigger a flurry of activity, or responses to your requests, and that costs money and can be affirmatively harmful. Think first; then speak.

Second: Remember where you stand in the hierarchy of clients. If you’re a big client — you’re buying every waking minute of my month — then you get full control over my time. You want me in Seattle on Wednesday? I’m in Seattle. You change your mind and route me to Denver? I’m in Denver. You know what I’m doing, and I’m doing it all for you. If you want to change my priorities, have at it. I’m all yours.

But if you’re not buying every waking minute of the month, you have to permit me to tend to my practice.

When I was in private practice, I fired only one client, and it was because he (or she, but I’ll use the masculine for convenience only) didn’t understand how he fit into my life. (Over time, my secretary and I came to refer to the in-house lawyer at this client as “the creature from Hell,” which we later shortened to “Creech.” So that’s what I’ll call him here.) Creech retained me to handle a couple of small breach of contract cases. Those cases occupied perhaps ten hours per month of my time.

I was, at the time, largely pinned down representing a defendant in a mass tort that involved multiple allegations of wrongful death caused by an industrial chemical. The mass tort kept me at the office nights and weekends. The contract cases did not.

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Creech just didn’t get it. I treated Creech with the utmost respect, as I did all of my clients. (Well, okay. Maybe giving this guy the nickname “Creech” wasn’t exactly showing the proper respect. But we never called him that to his face.) Although I treated Creech with respect, Creech showed no respect in return. For example, I was once at a meeting with senior executives of the multiple-wrongful-death client and got an urgent e-mail from my secretary: “You must talk to Creech immediately. Creech asks that you break out of your meeting and speak to him now.”

I obediently excused myself from the multiple-wrongful-death meeting and ended up chatting with Creech about how we’d handle reviewing some documents that we wouldn’t be producing for several weeks yet.

Sorry, Creech. That message should be left on my voicemail, with a request that I call you back when I have a minute. That’s not the stuff of “drag me out of a meeting with another client, insulting them at your behest.” How would you feel if another client pulled me out of a meeting with you?

I didn’t fire Creech for that alone. He did plenty of other crazy stuff, too. He insisted that we do unnecessary work and then refused to pay the resulting bills. When we tried to talk to fact witnesses to assemble discovery responses, Creech was slow to return calls and would run us up against deadlines. I suffered for a while, but ultimately I put the two pending contract cases to rest, and then referred Creech to other firms when he called for help in the future.

Third: Understand the realities of how a firm is handling your case. If yours is a huge matter, the senior partner who’s working on the case may in fact be giving the case personal attention. But if your matter is smaller, the senior partner may have only a passing familiarity with what’s going on.

This has implications: If you want to know what’s happening on the case, call the person who knows, which may not be the senior guy. If you call the senior guy, he’ll bluff his way through the first call with you, and then he’ll check with his underlings and call you back later with the actual answer. That’s unnecessarily expensive.

If you schedule a meeting with outside counsel and insist that the senior guy attend, realize that your outside law firm will be scrambling for 48 hours before the meeting, because the senior guy will realize that he’s dumb as a stone and is about to embarrass himself in front of a client. The senior guy will ask junior people to run around crazy for two days pinning down irrelevant tangents, so the senior guy feels comfortable despite the depth of his ignorance. You can schedule this meeting if you really want to, but consider the activity it will trigger on the firm’s part.

(If you’re not happy with the senior person’s lack of concern for your case, hire a different lawyer or a different firm. If you pair projects and lawyers carefully, you may be able to get the level of attention you prefer.)

Finally: If you ask for something (and the task is performed responsibly and intelligently), be prepared to pay for it. You can set up a meeting with the senior lawyer for next Tuesday, but don’t be outraged by the time entries for the Sunday and Monday that precede the meeting. You can insist that partners personally review all documents that are being produced in a case, but you can’t later cut the bill because the cost of document review was too high.

As I’m typing, I realize that I’m working up a head of steam here. I left private practice more than a year ago, and my blood pressure still rises just thinking back on these things. Give me a while to calm down. I may return to this topic in the future, if my heart can take it.

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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