I saw this all the time at law firms: I’d be in the middle of preparing to argue an appeal — reading key cases, studying the excerpts of the record, and thinking about likely questions from the bench. My mind was completely engrossed in what I was doing. And someone would walk into my office and say, “It went well.”
I had only one reaction: “Who are you again, and what are you talking about?”
Now that I’m in-house, I see this even more frequently. Cases — or legal issues, or administrative inquiries, or whatever — cross the desks of many in-house lawyers at a frantic pace. The things that an outside lawyer, or some other in-house colleague, is thinking about, may not have flitted across your mind in six months. But folks figure that you’re thinking about whatever happens to be on their mind at the moment.
Here’s an example….
I attended a meeting where a senior in-house lawyer wanted outside counsel to bring him up to speed on a case. The outside lawyer had recently been working with other in-house lawyers on an unrelated project, in which certain cases had been deemed Group A, Group B, and Group C. The outside lawyer came into the room and said to the senior in-house guy, “Good to see you. I was just here yesterday working on the Group B cases.”
The senior lawyer naturally looked at outside counsel as though he were speaking in tongues — which he basically was. Why would the senior lawyer have any idea what a “Group B” case was? The senior lawyer had probably never heard of “Group B” cases; they certainly weren’t at the front of his mind.
Later, as we discussed the matter at hand, the outside lawyer said that there appeared to be six key witnesses in the case. The senior lawyer asked: “Are any of those six people names that I’d recognize?” (The senior lawyer was thinking, of course, of names that he’d recognize — our corporate directors, CEO, CFO, and other senior corporate officers.)
Outside counsel said: “Oh, yes. You’ll recognize all of the names.” (The outside lawyer was thinking that this case had been pending for months, and the same names turned up repeatedly in e-mails, discovery responses, and so on. Anyone working on the case would recognize the names of these low-level corporate employees who were the key witnesses.) “The names are Smith, Jones, and Doe.”
The senior guy was bewildered: “I’ve never heard of any of them. Do they work here?”
This is just one example (actually, I suppose, it’s two) of miscommunication, but similar things happen all the time. What’s the solution?
For outside lawyers, please remember that we have many in-house lawyers and many employees. If you speak to one corporate employee, you haven’t automatically spoken to all of them. Don’t assume that issues that matter to one corporate employee matter to others or that things you say to one person are automatically shared with others.
When you come in to discuss a case, there’s a fair chance that some people at the meeting may not know the name of the plaintiff, or the defendant, or what the case involves. If you start in with, “We’re afraid that Smith may not be a great witness,” you’re speaking in tongues. Don’t insult folks, but consider the possibility that you’re talking to busy people who just left a meeting on some other subject and came to this conference room only because their electronic calendar instructed that this was the next event on the day’s schedule.
For in-house lawyers, remember that I am not you, and you are not me. You can walk into my office and ask out of nowhere, “Shall we go to 250 tomorrow?” But my reaction is likely to be: “Who are you again, and what are we talking about?”
If you work for a business unit that communicates in code — you routinely use abbreviations, and shorthand, and terms of art — you can safely assume that outsiders won’t understand you when you speak. Be considerate.
Even if folks know the code in which you speak, memories are imperfect things. I personally learned in the mid-1990s that my Very Personal Computer — the one between my ears — could remember basic details of roughly 200 cases that were part of a multidistrict litigation proceeding. (I was working on those cases intensively, devoting all day, every day, to their defense.) When we hit about 220 cases, my VPC went entirely on the fritz — I could no longer hold new cases in my brain, and I in fact no longer remembered the details of any of the original 200. Folks who are overseeing many hundreds of cases are unlikely to remember the details of any one in particular, and a one-sentence refresher can do a world of good: “Can you spare a minute to talk about the Peterson case? That’s the one where the surgeon implanted a bone screw into an Arkansas resident, and the screw broke after three months.” Aha! Whether or not the listener remembers the case, the listener now has some sense of who you are and what you’re talking about.
These suggestions are not limited to communications with lawyers. If you’re talking to people who lead busy lives, then those people lead busy lives. Don’t assume that they’ve spent time preparing to meet you. Instead, give a clue about why you’ve entered the person’s life and what you want to discuss. That will either trigger a memory or present an opportunity for the listener to ask a follow-up question.
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].