But last Tuesday was different. Please bear with me.
For 25 years, I practiced, and tried to develop new business, in the complex litigation space. I worked at a firm that wasn’t interested in defending companies in one-off pharmaceutical product liability or Automobile Dealers’ Day In Court Act cases. Those cases were frequently insured (and the carriers often wouldn’t agree to pay our rates) or otherwise too small to fry. But the moment one of those silly little cases morphed into something real — a mass tort or a Dealers’ Act class action — we were chomping at the bit to get retained.
It’s tricky to market into that niche: “I don’t want your ‘drug caused an injury’ case until you have 1,000 of them. Then, even though I spurned you before, I want you to hire me to displace (or, at a minimum, supplement) your existing counsel on the cases.” The existing lawyer already knows the facts and the law, and ignorant you, who showed no interest before, now wants to butt in. How do you pitch that?
I figured the answer was to develop a reputation at the point where small cases transmogrified into big ones: the filing of a class action, the filing of enough cases that a motion for multidistrict litigation became likely, and advising companies how to respond when “60 Minutes” or “20/20″ called for an interview. I thus spent an awful lot of time writing about those topics and speaking at any conference that would give me a lectern and a worthwhile audience.
Then I moved in-house and changed my focus entirely. Until last Tuesday . . .
Last Tuesday, the general counsel of an international company called me. The company was being joined as a defendant in a bunch of cases that fell precisely into my private-practice power alley. The GC knew my reputation from private practice, had poked around on-line, and realized that he (or she) needed a lawyer with just my experience. Because I was no longer available, would I spend a few minutes kibitzing about who the company should retain to defend litigation that once was small but now was large?
What a wonderful set of cases they were! Class actions! An MDL! Statewide coordinated proceedings! Thorny constitutional issues! We chatted generally about the cases and specifically about lawyers who might be able to lead the defense. I was generous with my time, because my juices were flowing. I got off the phone all pumped up.
If I were still in private practice, what a day this would have been! Get copies of the complaints! Start thinking about motions to dismiss that could save your client and make you a hero! Think hard about class certification! Gin up arguments, including novel constitutional ones, that we’d be arguing within a few months! Advise a client about the pros and cons of participating in an MDL or state court analogues! Deal with public relations issues!
I could hardly contain myself. What a day it would have been! I wiped away a tear.
What a day it would have been: Do a conflict check. Receive back a foot-high conflict clearance form that was lit up like a Christmas tree. Try, to no avail, to get your colleagues to respond to conflict clearance e-mails. Nudge the last guy in Taiwan daily for a response to the conflict check, and still get ignored. Apologize repeatedly to the client about your inability to actually accept the work.
Decide you’ll start doing the work before every last conflict cleared — with the client’s consent, of course, but aware that you might have to give up the work (and forfeit any related fees) if a conflict proved insoluble.
And then it would turn out the client wanted to negotiate discounted fees. Run endless bureaucratic traps for weeks trying to satisfy the competing desires of your exciting new client and your existing partners.
Fight with your colleagues about which decent associates can be spared to work on your new matter.
Fly around the country like a lunatic to handle emergency hearings and meet with witnesses. Don’t see your family for weeks on end. Sleep too little. Eat poorly, mainly at the Gate Eight Cafe at Reagan National.
Suffer through endless silly phone calls with opposing counsel who won’t agree to the dates or locations of depositions. Meet and confer with a series of sociopaths about meaningless discovery spats.
Read opposing counsel’s motions seeking to imprison your client, disbar you, and sanction your grandmother and your cat.
Have your bills cut randomly by an unthinking computer and a college kid who has to prove his value by hacking fees.
At year-end, transmit your firm’s message that rates are going up seven percent across-the-board, and have the client tell you that times are tough, and fees are frozen.
What a day it would have been, indeed.
On reflection, I’m staying in-house.
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 email@example.com.