This column comes from a narrow perspective — that of a litigator and, in particular, an in-house head of litigation.
I suspect that in-house SEC lawyers, or M&A lawyers, may have entirely different perspectives on this topic. But as a litigator, I pay a lot of attention to briefs and other written work. Why is that?
Because I can.
When I was a partner at a firm, I’d let junior lawyers argue motions. For significant matters, I’d chat with the lawyers beforehand, to discuss how to approach an argument. But I almost never attended those arguments. Maybe I should have (for reasons of associate training and evaluation), but I generally viewed sending myself as an observer to be over-staffing an event. I thus rarely saw associates on their feet in court.
I also didn’t double-staff depositions. In mass torts (which was a lot of my practice, way back when), senior lawyers typically defended depositions, and more junior lawyers typically took them. This is partly driven by the nature of mass torts; in that environment, deposition defense is critical. If the senior VP of research and development gets her clock cleaned in deposition, that testimony will come back to haunt the client in hundreds of later cases. In mass torts, senior lawyers play deposition defense….
On the other hand, offensive deposition discovery in mass torts is somewhat less critical. We’re facing hundreds (or thousands) of plaintiffs. We have to depose them in bulk. And if we screw up taking the deposition of one injured plaintiff, or one treating physician, we can always settle that particular case. We might overpay that one plaintiff, but we won’t be burdened with bad testimony in every later case. In mass torts, junior lawyers play offense.
I didn’t watch the junior lawyers take those depositions, so I really couldn’t judge the associates’ personal presence in the trenches. And I rarely read the deposition transcripts, so I couldn’t assess the quality of the questioning. You wouldn’t read the transcripts immediately after the depositions were taken, because there was no need. You might only skim the transcripts when you were preparing summary judgment briefs, so long as you had another trusted lawyer who was reading the transcripts closely and making maximum use of them. You would finally study the transcripts when you were preparing to cross-examine witnesses at trial, but cases rarely go to trial. So you rarely read deposition transcripts closely.
If I rarely see you in action in court, and I rarely read deposition transcripts, which of your activities am I legitimately able to assess? I can tell whether you offer intelligent ideas when we’re discussing strategy, I can see how you handle clients in meetings or interviews, and I can see whether your draft briefs are any good. In that environment, written work counts. It’s your best opportunity to gather your ideas, think about them carefully, and present them persuasively. Your eyes might be the window to your soul, but your briefs are the window to your mind.
This focus on written work becomes even more intense when you go in-house (as a litigator). I’m now almost never attending arguments or depositions, and I don’t spend my days reading deposition transcripts. (I sometimes hear reports about how depositions went, but I haven’t yet heard an outside lawyer say that he’d messed one up. Sometimes I hear that the other side had tough witnesses, and sometimes I hear that our witnesses performed poorly, but I’ve never heard a lawyer report that he asked the wrong questions or didn’t prepare our deponents properly.)
So what’s my experience with outside counsel? I hear the advice you give by phone and in person, and that’s awfully important. I see the results you achieve, and I’m surely paying attention on that score (although we all recognize that results vary by jurisdiction, judge, and chance). But I can also sit down and read draft briefs supporting dispositive motions, and that shows me the quality of your advocacy after you’ve had a full opportunity to think about your approach and craft your language. Reading briefs gives me a sense of how issues are playing out and how a judge might react, and it gives me a basis for deciding independently our likelihood of success.
Why do I focus on written work? Because I can. Because briefs are a big chunk of our pretrial communications with courts. And because briefs give outside counsel the opportunity to present arguments at their polished best.
Briefs speak to both courts and clients. Outside lawyers should be certain that those briefs speak well.
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 [email protected].