When we write briefs, we show — we don’t tell — the reader that we win. Thus, we do not tell the reader: “This case is barred by the statute of limitations,” which is mere assertion. Instead, we show the reader why we win: “The accident in which plaintiff was hurt occurred on June 1, 2008. The two-year statute of limitations therefore expired on June 1, 2010. Plaintiff did not file his complaint, however, until August 15, 2011. This lawsuit is time-barred.”
At trial, it’s the same routine: We do not simply assert in an opening statement or closing argument: “My client should win.” (Nor do we beg: “Please, please. My client should win.”) Instead, we present the facts, and we let the jury conclude from the facts that our client should win. Show; don’t tell. It’s more persuasive.
What’s the equivalent for demonstrating legal expertise? What should law firms write (and say) on résumés and in responses to RFPs to show, not tell, their competence? And, as in-house counsel, what questions should we ask to investigate whether a firm is blowing hot air (which is what “telling” permits) or may actually be competent (which is what “showing” may suggest)?
Let’s do an easy one first: Many lawyers include on their résumés the assertion that they’re “widely published” or “have published many articles in leading journals.” That’s “telling.” If, as outside counsel, you have published three articles in journals that no one has ever heard of, then you’re probably better off asserting in your résumé that you’re “widely published” and hoping that no one asks decent follow-up questions. In your response to RFPs, you should do the same thing: Assert that you’re widely published, and hope that no one pursues the issue.
But suppose that an outside lawyer is in fact not bluffing about publications. Then show, don’t tell. Perhaps: “Mr. Smith has published 57 articles in the legal and popular press. In the popular press, his articles have appeared in The Wall Street Journal, the Chicago Tribune, and other journals around the world. On the legal side, he has published law review articles in the Tulane Law Review and the Arizona State Law Journal, as well as shorter pieces in Litigation, The National Law Journal, and BNA’s Class Action Reporter, among others.”
This description shows — it does not tell — the reader that you’re widely published. It permits the reader to assess your accomplishments intelligently. If your competition for a piece of business turns on the quality of your publications, then you’re likely to win the work against run-of-the-mill competitors; if Alan Dershowitz or Scott Turow strolls into the room for the interview after yours, then you’ll lose. But at least it’s not all bluster; the cards are on the table.
As in-house counsel, what do you do? When the outside lawyer says that he’s “widely published,” you ask for the bibliography. If the outside lawyer is bluffing, you’ve exposed him as a fraud. If he’s not bluffing, you’ll get a list of publications and you can intelligently compare that candidate to the other candidates for the work.
What’s the equivalent for trial experience? In that context, “telling” about credentials sounds like this in a law firm brochure: “We have vast trial experience in complex, multijurisdictional disputes.” During a beauty contest, you’ll hear variations on the “telling” theme. The oral rendition goes like this: “My partner, Smith, has tried more cases that you can count, and I personally believe my partner is the finest product liability trial lawyer in the country.”
Very nice, but possibly pure bluster. What should outside counsel do if he in fact is not bluffing, and what questions should inside counsel ask to pierce the possible smoke and mirrors?
Outside counsel who isn’t bluffing should list her trials on her résumé. There might be two categories: “Jury trials taken to verdict” and “Other proceedings.” The first category would contain what it says. The second category might contain an amalgam of bench trials, arbitrations, preliminary injunction hearings, and other evidentiary hearings that are not the equivalent of jury trials. (Why do so few people actually do this on their résumés? Because the average lawyer is bluffing.)
As inside counsel, it’s your job to call the bluff. When someone says that he’s tried to verdict “more cases than you can count,” ask for a list of jury trials taken to verdict. Perhaps counsel didn’t appreciate that you can count to two. Ask the lawyer to include the result of each of those trials, so you can calculate the lawyer’s batting average. Perhaps ask the lawyer to identify opposing counsel (or the amount in dispute), so you can see whether the candidate is trying cases in the major league or the minors. Ask for a couple of references: One from a client for whom the lawyer won a trial and one from a client for whom the lawyer lost a trial. (The second reference may actually result in the more interesting conversation. The client may be terribly disappointed in counsel’s performance, or the client may say that counsel did a spectacularly good job with some horribly bad facts, and the loss was plainly not counsel’s fault.)
What are the rules? As outside counsel, if you’ve really got the goods, then show — don’t tell — that you’ve got them. Be completely transparent, provide full details, and annihilate the competition. On the other hand, if you don’t really have the goods, don’t be silly. Be less transparent. Don’t lie, of course, but say little, and pray that no one thinks to follow up.
As inside counsel, don’t settle for the usual pablum about folks being “widely published” and having “vast trial experience.” Demand specifics, and follow up as necessary, to learn what you’re actually buying. By imposing that rigor, you’ll expose an awful lot of puffery, and you’ll enable yourself to make more intelligent hiring decisions.
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].