Biglaw, In-House Counsel, Litigators

House Rules: Tips for Picking Outside Counsel

I received a fair amount of mail this past week asking about transitioning to in-house positions from firm life. I tried to offer useful responses when time permitted. I certainly appreciated all the kind words, and I feel for those enduring the struggle of a job search, especially in this economy. Many folks share in the struggle, and many folks have struggled before you — myself included. It doesn’t make it easier, but it will get better. The words “going in-house” presuppose that you have a choice: to go. For most people these days, the choice is to go where you’ll be able to cover your budget. And that doesn’t always translate to getting the job you want.

I do not view this column as a place to preach, I view it as one side of a dialogue. If you feel moved to write to me and ask for advice or ideas, I will certainly do my best to respond to your email. I knew going in to this that by publishing my real name I was setting myself up for abusive comments from a small group of people. It’s all good; I have been a long time reader of Above the Law. But I also knew that, far more importantly, folks who really wanted or needed to discuss topics that I write about might contact me. To that end, let’s talk about choosing the right person for the job….

I am looking at a list of outside counsel used by my company. Most surprising to me is that no firm has more than a small percentage of the work. Before coming in-house, I had thought that a handful of firms would have the lion’s share. Not so (at least here).

One of ATL’s readers asked me this past week what I thought about Biglaw rates and quality of work compared to mid-sized firms. Biglaw work quality was always top notch, but could I get the same quality for less cost? My immediate answer was that I had always believed Biglaw rates to be outrageous, but that if a public company was hit with “bet the farm” litigation, a large “name” would likely be chosen. Shareholder concerns are too important to ignore on this point.

As one of the more recent additions to the legal team here, I am, thankfully, not going to be in on “bet the farm” decisions. Most cases, however, do not entail that level of exposure. For smaller cases that fall in my wheelhouse, I first choose firms based on my experience with the attorney in charge. If I know the attorney to be top flight in what he or she does, then that attorney is at the top of my list. Even more so if I have worked with that person before, and know of his or her work firsthand. This is also how I go about seeking lawyers in other regions of the country. I find a connection in that region and ask: “Does this person do good work? Is he or she going to represent us well? What has been your experience with this attorney?” Price doesn’t figure into the equation.

Most important to me is reputation of work quality. When I review papers from an outside attorney, they need to be perfect. I don’t have time to call out typos or poor writing. Some of this may be intuitive, but there always seem to be surprises. Next is reputation of the attorney. If I know you personally, and better still, if we have worked together, I can easily assess whether you may be right for the task. If I am seeking someone out of my region, I am left to rely on references. For references I will first turn to internal attorneys, and then to connections I have to the region, from clerking or from past jobs.

The legal field is “smallish” in that your reputation and integrity are so directly tied to the amount of glowing references you receive. Descriptors like “challenging” and “shark-like” tell me a great deal about you — and why I don’t want you working with me. I need to know that I have hired the best attorney for the task so I can relax and let you do your work. If your personality is that of an “abuser,” how can I rest easy? Just because you are pleasant to me on the phone, and because I am paying your bills, the work that people are doing for you under undue pressure simply cannot be trusted. Someone working under the duress of an abusive colleague is not as reliable as someone who enjoys their work. Conversely, if I know you to possess a hardworking yet fair personality, the work product coming out of your shop is likely to be better than the alternative. These may be debatable points to be sure, but when I hire an attorney, my ethics and work-personality extend to you.

Thus far, I have been more than pleased with those firms and attorneys that I have hired. The work has been excellent, the attorneys good people, and the results speak for themselves. And I admit, when I review the bills, I have a more pleasant taste in my mouth.

But what if you don’t know me and have a task of building a book of one million dollars or more? Or what if you’re at a regional firm, and all the major companies in the area are already loyal to certain firms and their senior partners?

Next week, how to get my attention.

After two federal clerkships and several years as a litigator in law firms, David Mowry is happily ensconced as an in-house lawyer at a major technology company. He specializes in commercial leasing transactions, only sometimes misses litigation, and never regrets leaving firm life. You can reach him by email at

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