Biglaw, In-House Counsel, Litigators, Shameless Plugs

Inside Straight: Bringing A Client Up To Speed

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First, a shameless plug; then, back to business.

Law360 surveyed practicing lawyers around the country asking what books the practitioners would recommend for new lawyers –- the so-called “legal greenhorns.” (The Law360 article requires a subscription; this recent piece from the ABA’s “Young Lawyer” is free of charge and summarizes the results.) The recommended books for new lawyers included Shakespeare’s plays; Alexander Hamilton and James Madison’s The Federalist Papers; Harper Lee’s To Kill a Mockingbird; and Mark Herrmann’s The Curmudgeon’s Guide to Practicing Law (affiliate link).

That leaves only one question: Who’s that Shakespeare guy, and why’s he cluttering up my list?

But enough of that. On to today’s business. How do you bring an ignorant client up to speed?

This little megaphone at Above the Law is a funny thing: People I meet now occasionally say, “I hope I don’t end up reading about myself on-line.”

Sorry, friends.

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Most of what I perceive as worth sharing here is stuff that I’m living, because life provides examples of how to do things right or do them wrong. I’ve recently experienced a triumvirate of situations that I can’t resist writing about.

(Naturally, I’ll take some artistic license to obscure the actual facts as I describe these events. Even though the following stories exclusively address matters of style, and disclose nothing substantive, someone might start screaming “privilege” if I started writing about real events. In fact, the more I think about it, the more I realize that the three stories that I’m about to tell are entirely fictitious. Although they’re written in the first person, any resemblance to real persons, living or dead, is purely coincidental. Trust me.)

Again, I ask: How do you bring an ignorant client up to speed?

I’ve been litigating for a good long while now, so there are a few things I know. But I haven’t practiced extensively in every area of the law, so there are a bunch of things I don’t know. How can a client tell those subjects apart, educating me (or others situated similarly to me) about stuff I don’t know without insulting my intelligence by regaling me with the basics?

I have three thoughts.

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First, assume the client knows something. Here’s my illustration: I’ve been playing the litigation game for 25 years; perhaps I occasionally paid attention. Folks forget this. I recently received an e-mail from outside counsel reporting that he had an idea for moving to dismiss a lawsuit brought against us. I e-mailed back, “What’s the basis for the 12(b)(6) motion?”

Outside counsel responded — I kid you not — “The complaint doesn’t state a cause of action.”

Thanks, guy.

I couldn’t even tell if this person was kidding. There are only three possibilities: (1) This lawyer (a partner) knew nothing about the basis for the potential motion, but felt compelled to respond promptly to my e-mail; he thus shot off a ridiculous non-response meant to conceal his ignorance, (2) This lawyer figured I’m an idiot and that this response would actually be helpful, or (3) This lawyer has the world’s driest sense of humor. I’ll never know for sure, but my money’s on number one.

Suggestion number two: Before you speak to a client for the first time, do two minutes of research to assess what the client might know. To personalize that suggestion: Anyone who Googles my name would learn pretty quickly that I spent a chunk of time in private practice defending multidistrict litigation, and I’ve written a fair amount in that field. Some outside counsel don’t bother to look, and the results can be embarrassing.

We recently concluded an MDL proceeding. During my first call with outside counsel on that matter, the principal lawyer on the case called in his firm’s “MDL specialist” to help strategize. The specialist put on his pompous, now-I’m-advising-a-client voice, and started telling me how MDLs work. At one point, I said something about moving for summary judgment before the MDL judge. The MDL specialist told me that my idea wouldn’t work, because MDL transferee judges don’t have the authority to rule on dispositive motions.

If you play in the MDL sandbox, this isn’t a subtle error. MDL transferee judges can (and do) rule on dispositive motions all the time. If the MDL transferee judge couldn’t rule on dispositive motions, one of the main efficiencies of the MDL process — obtaining a single consistent answer to what would otherwise be recurring legal issues decided before multiple judges — would be lost. This ain’t a close call.

I gave the MDL specialist a path for retreat: “I’ve been out of the private practice of law for a few months now, and I suppose it’s possible that MDL practice has changed dramatically since then. But I’m pretty sure MDL transferee judges could rule on dispositive motions a few months ago, and I bet that someone would have told me if the MDL process had recently been transformed.”

But no: The MDL specialist insisted that he was right, and he promised to send me a recent case on point.

Needless to say, I’m still waiting.

So that’s point two: Take a couple of minutes to Google an in-house lawyer you’re advising for the first time, to get a sense of what the person may (or may not) know. (I guess there’s also a related concept tucked in here: As between giving correct and incorrect advice, correct is better.)

Finally, my third suggestion: If you’re uncertain of the state of the client’s knowledge, ask.

I was recently on the phone with a prominent lawyer (his reputation preceded him) discussing a piece of litigation that involved a fairly obscure area of law. This guy volunteered: “I don’t know how many of these cases you’ve worked on in the past. If you’re all over this subject, I’m not going to bore you. But if this is the first time you’ve litigated one of these cases, I can take three minutes and tell you the plaintiffs’ usual game plan, how defendants typically respond, how the issues play out, and how these cases generally settle.”

I confessed ignorance, and this guy did a very nice job providing a sense of the playing field in a few short minutes.

It was really well done. That was a (relatively) famous guy whose (relative) fame is easy to understand.

I’m not asking outside counsel to read minds. But use your common sense: Assume that a client might know the basics; do a little research to see if the client has specialized knowledge about anything in particular; and, if in doubt, ask.

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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