Biglaw, Cheapness, In-House Counsel, Partner Issues

Inside Straight: In Praise Of Mediocrity!

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

All this perfection crap.

One reader wrote to me to complain. Surely, he said, there’s room in the world for a law firm that does work that’s “good enough for the occasion at a fair price.” Isn’t perfectionism the enemy of the reasonable bill?

That reader is undeniably correct.

Small matters, whether transactional or litigation, may not bear the freight of comprehensive factual or legal research. And lawyers who don’t recognize this — whether they work in-house or at firms — won’t last very long. For many matters, “good enough” is good enough.

But I’m not going to spend much time fretting about this, for three reasons.

First, there’s plenty of mediocrity in the world. Although it may engender outrage to type these words, the average lawyer is . . . well . . . average. You don’t have to search very far to find people who produce average work….

Second, clients know this. Everyone working in-house is keenly aware that some outside lawyers (and firms) are mediocre, some are good, and some are breathtaking. Every sophisticated client uses that knowledge when selecting outside counsel. When we’re picking counsel to defend a case that’s manifestly silly and threatens only a small exposure, we rule out firms that will charge a hundred grand to circulate a first draft of a motion to dismiss. We try to match lawyers and firms to matters, and we retain less polished (or, at a minimum, less expensive) firms to do less significant work.

(In late November, right after I started writing this column, an in-house lawyer wrote to suggest a topic for a future post: “We have our ‘go-to’ firms and our ‘we’ll use ’em for things that don’t matter’ firms. Does every corporation think about their outside counsel that way? If so, does anyone ever reveal the hierarchy to the outside firms?” Thank you, dear reader, for waiting while I got around to answering you.)

If the question is, “Do mediocre firms charging fair prices for fair work fill a need?,” then the answer is, “Yes.” This happens every day.

(Do we tell our outside firms this? Of course not! We want to have a solid working relationship with our lawyers, and we appreciate the work they do for us. We need all of the firms equally — the fair firms at fair prices and the breathtaking firms at breathtaking prices — and we use them all regularly. There’s no reason to go out of our way to insult people.)

Third: Even though everything I just wrote is (to my eye) true, I still can’t imagine a law firm affirmatively marketing itself as the place to hire for “fair work at fair prices.” If someone pitched for business that way, you’d gasp: “My, God! If they’re ready to admit that they’re mediocre before we’ve even retained them, imagine how awful they must really be! There’s no way we’re hiring those guys!”

But there are gentler ways to frame this pitch, and they can be effective. We hear many variations on the “fair work at a fair price” theme. They sound like this: “We’re big firm refugees, so we provide big firm quality at small firm prices.” (That’s not really saying, “We’re mediocre.” It’s more saying, “We’re just as good, but cheaper.” But it’s surely a pitch based on price.) Or we hear this: “We’re a small shop with less overhead and lean staffing, so we can do your smaller cases for an attractive price.” (That’s not affirmatively pitching mediocrity, but it’s implicitly acknowledging that we shouldn’t retain the firm for a bet-the-company case. That spiel is fairly common, and it’s aiming at a target far short of perfection.) Those aren’t bad marketing pitches, and they sometimes work.

Even firms that fill this niche (and there are many such firms, because the average legal assignment is . . . well . . . average) don’t expressly acknowledge their mediocrity. And lawyers working at those firms shouldn’t aim to produce mediocre work product. It’s entirely fair to send a draft contract or brief accompanied by a cover e-mail that explains the limitations of what you’ve done: “At your request, we did not take depositions of the following third party witnesses [identified by name], and we did not research possible choice-of-law permutations, because you didn’t think this matter warranted that effort.” There! You’ve said it! We didn’t run down every rabbit hole and do every possible 50-state survey!

Despite all that, the enclosed document should still be perfect, within the parameters that you’ve set. I’m happy to receive a brief that reflects only the spadework that we’ve chosen to do, but I nonetheless expect the brief to be coherent, persuasive, and generally error-free. If you can’t produce high quality work, then you can’t compete even in the space reserved for mediocre lawyers.

Mediocrity? I’m all in favor.

As long as it’s perfect.

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

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