Some companies litigate their own cases in-house, writing their own briefs, taking depositions, and trying cases. If that’s your company’s model, then you’ll need to hire lawyers with a certain skill set.
My joint operated that way at times in the past, but now uses in-house lawyers to manage litigation. We hire outside counsel to represent us, and the in-house lawyers typically supervise the work being done by outside lawyers. In that environment, who’s the right person to hire?
Even in that more restricted world, the answer isn’t immediately clear….
Among corporations that don’t litigate cases in-house, there are at least two possible roles for in-house lawyers. Your in-house lawyers could basically be conduits for information and keepers of records. To prove that I can be as snarky as the next guy, I’ll call that the “bobblehead” model of litigation management: Outside counsel makes requests and speaks words; we obediently nod in agreement and do as we’re told. Thus: “Outside counsel must interview Witness A; I’ll set up a meeting with Witness A. Outside counsel says that we’ll spend $50,000 over the next six months defending the Smith case; I’ll budget a $50,000 expense. Outside counsel filed the attached brief for us last week; I’ll calendar the hearing date. Outside counsel says the case is worth $100,000; I’ll plan to spend $100,000 to resolve the case.”
That’s not a crazy model. If your litigation is routine and you trust your outside lawyers, you could hire some very inexpensive in-house lawyers (or legal assistants, or the kids down the block), and ask them to play this role. The job qualifications are easy: “The successful applicant will have an exceptional ability to take notes and to bob his or her head in agreement with words spoken by outside counsel.” By using this model, you would reduce your in-house legal expense, and your litigation results might be just fine.
The alternative is the non-bobblehead model: You hire in-house lawyers who double-check the thinking of outside lawyers, suggest strategies, and think independently about the value of cases. That’s a very different approach to case management, and it requires a different skill set in in-house lawyers.
If you’ve worked in a law firm for any length of time, you realize how terribly imperfect outside lawyers are. You’ve routinely seen lawyers of all kinds — partners and associates, at firms big and small, in all fields of law — overlook critical issues, do sloppy research, draft incomprehensible briefs, and make oral arguments that affirmatively hurt the client’s cause. How can you be sure that your in-house lawyers will approach the ideas proposed by outside counsel with the appropriate degree of skepticism?
At the hiring stage, we’ve decided that we’re looking for candidates who have spent a fair amount of time actually litigating cases in private practice. Someone who went from law school directly to an in-house position can be a very fine lawyer, but that person is unlikely to have a sense of how litigation actually works. A person who never took depositions, argued motions, and tried cases may inappropriately defer to outside lawyers who have spent their lives doing those things. Undue deference will turn an otherwise competent in-house lawyer into a bobblehead doll.
So, too, for very junior litigation associates. If you spent three years reviewing documents and carrying litigation bags at a large law firm, you might foolishly think that the partners at large law firms are competent folks, and you might be tempted to defer to their judgments. We need someone who knows to his very core that ideas are ideas, and we never assume that an idea is correct simply because of the identity of the person who spoke it.
Thus, when we’re hiring, we need someone with a fair amount of actual litigation experience.
After we bring the new person on board, we must make sure the person remains vigilant over time. When we ask one of our in-house lawyers, “What’s the value of that case?,” the correct answer is not, “Outside counsel says the case is worth $100,000.” We didn’t ask how outside counsel valued the case; we asked for your independent judgment on the issue. If all you can do is repeat outside counsel’s words, then we’re back in the land of the bobbleheads.
When we receive draft briefs from outside counsel, we edit them. We edit them sensibly, recognizing that outside counsel is at the helm of the briefing effort, and the author of the brief may be closer to the facts than an inside lawyer who’s supervising a large number of cases. If an editorial change is a close call, or purely a matter of style, then we don’t make that change; we defer to the author. And we’re awfully careful not to make briefs worse.
But we realize that outside counsel are imperfect creatures, and we suggest arguments that have seemingly been overlooked, shorten sentences that run on for half a page or more, and fix grammatical and typographical errors.
Naturally, in-house lawyers should also serve another function: Outside counsel have the advantage of seeing similar issues play out across a wide range of companies. But in-house lawyers should have deep knowledge of their company’s particular industry (or industries) and unparalleled knowledge of the company itself. In-house lawyers should be able to identify both the closets that hold the corporate skeletons and the chests that hold the corporate treasure, and in-house lawyers must help the outsiders navigate appropriately.
We need a rallying cry for in-house lawyers who actually add value to the cases that they manage.
How about: “We are not bobbleheads!”
(Or does that maybe feel just a tad defensive?)
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 protected].