In-House Counsel

Inside Straight: On Intelligent Delegation

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Some tasks are meant to be delegated; others are not.

Sometimes, whether the task is meant to be delegated depends on what the supervisor has in mind.

Let’s think about three examples…

Example number one: I can write a letter. I cannot write a letter in your words. Whether the task of drafting a letter is meant to be delegated depends on what the supervisor has in mind. If the supervisor needs a letter that generally conveys an idea, then any competent person can handle that project. On the other hand, if the letter must be worded exceptionally delicately, or if the supervisor is unable to restrain himself from editing everything intensely, then the supervisor shouldn’t delegate the task. Graduating from law school and passing the bar exam makes one a lawyer, but it does not make one a psychic. If writing the letter will require mind-reading, then the drafting duty can’t be delegated to a mere lawyer. (If the letter will contain some parts that simply convey ideas generally and other parts that require a special touch, then the supervisor should pause for a moment and think about how to handle this.)

Sometimes, the supervisor simply doesn’t know what he or she wants. I remember distinctly, from some 25 years ago, a partner telling me that I should make “these five points in a short, snappy introductory sentence to the brief.” That task can’t be delegated. It’s likely impossible to make five points in one short sentence; if it’s not impossible, then the partner had something in mind that I couldn’t divine. If you need something written in your words, then you must write it yourself.

Example number two: I can conduct settlement talks. I cannot conduct settlement talks precisely as you would conduct them. If the supervisor honestly believes that something significant will turn on the precise words that are spoken during settlement talks, then the supervisor should conduct those talks herself. If the instructions to the subordinate (whether the associate at a firm, the junior lawyer in-house, or outside counsel taking instructions from a client) will basically include a script for the conversation, then the task probably shouldn’t be delegated. “You should start by saying that the client is outraged and doesn’t think it should be paying a nickel in this case. The senior executives at the client were already having the lawyers’ heads when the lawyers proposed paying anything. We should then say blah, blah, blah. When opposing counsel says X, it’s crucial that you then act angry and say Y. Opposing counsel will then say A, and you must furrow your brow, squint your eyes, and say B.” And on and on.

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This is either necessary or unnecessary. If it’s truly essential that the negotiator speak precisely the words being dictated at precisely the times specified, then you probably shouldn’t delegate the task. You’re not asking the subordinate to conduct settlement talks; you’re instructing the subordinate to conduct settlement talks in your very words. It can’t be done. Either don’t delegate or carve out a task that is in fact delegable.

Last example: I can handle a case (or argue a motion, or take a deposition). I cannot handle a case (or argue a motion, or take a deposition) exactly as you would, reacting instinctively and deciding every close judgment call precisely as you would have. If you want the case managed, or the motion argued, or the deposition taken in a responsible way, then a responsible lawyer can do that for you. But if you need the case handled or the other actions conducted exactly as you would have, then do it yourself. Either the task is not meant to be delegated or you, the supervisor, are not able to delegate it. Either way, don’t try; the attempt at delegation will quickly cause both you and your subordinate to become unhappy.

What does this mean for relationships among lawyers? If you’re a supervisor, think hard about what you’re delegating. If the task is meant to be delegated, then do so — but give only guidance that’s necessary and able to be heeded. If you find yourself scripting the letter, or the discussion, or the trial tactics, then perhaps either you don’t want to delegate this or you’re unable to let go. Either way, don’t try to delegate. Handle the task yourself.

The amount of guidance that’s necessary depends on the nature of the task you’re delegating and your level of confidence in your subordinate. If you’re supervising someone fresh out of law school who you’ve never before seen in action, it might be appropriate to say: “Please draft a letter to convey this thought. Then, let me review the draft before you finalize the letter and send it.” On the other hand, if you’re supervising a senior associate on the verge of partnership, you might say: “The amount in controversy in this case just barely justifies our firm handling the matter. We’re really taking the case to accommodate a client for which we do a lot of other work. So this case is all yours, with one caveat: See me before you commit malpractice. If you have a question about anything, I’m always here and always ready to help. If you’re making a tough call, talk to me rather than make a mistake. But otherwise I trust your judgment. This case is really all yours.”

If you’re a subordinate being asked not simply to do a task, but to do it according to a script, this issue is trickier. You’ll have to decide whether the supervisor really means what he or she is saying. If the supervisor doesn’t really mean what he’s saying, then do what he wants, not what he says. (My long-ago partner did not really want five thoughts in one short, snappy sentence. I suspected that he didn’t really want that. So I drafted something sensible — five thoughts contained in two or three introductory paragraphs that spanned a page or two. When the partner read those paragraphs, he realized that was what he actually wanted, edited the paragraphs gently, and we were both satisfied.) It is, of course, high-stakes poker to ignore what the supervisor asks and do instead what he wants, but it’s often possible.

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If the supervisor scripts settlement talks, the supervisor typically doesn’t really care precisely what words you speak or with what intonation. (The supervisor is probably just a compulsive nutcase who can’t resist scripting everything.) If you settle the case on the specified terms, the supervisor will probably be satisfied.

But if there’s a real chance that the supervisor honestly believes that everything must be done according to the script, raise that issue with the supervisor before you proceed. Tell the supervisor that you’re happy to take the deposition and you appreciate the guidance, but it’s likely that unexpected things will happen and your instincts won’t be the same as the supervisor’s would be in the same situation. Commit to do everything intelligently, but, depending on how events develop, perhaps not exactly as the supervisor is proposing.

If the supervisor chooses not to delegate, you’ve lost an opportunity, but you’ve avoided creating two unhappy people. If the supervisor agrees to delegate despite your warning, you’ve at least raised in advance that the task will be accomplished, but perhaps not precisely as it had been scripted.

Supervisors, be sensible. Subordinates, be sensitive. We can all get along; I promise.

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 (affiliate link). You can reach him by email at inhouse@abovethelaw.com.

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