Suppose your firm has one incompetent partner, and our joint has the misfortune to be working with that person.
This guy consistently misses important issues. He sends us briefs that read (as did one draft I recently received): “In response to ALR’s motion to dismiss the OC, [plaintiff] added an allegation in the FAC that . . . .” We comment, over and over again (as we did recently), that briefs on our behalf must be written in English, not gibberish. Even if you’ve set up short forms, no reader sees “OC” and “FAC” and thinks “Original Complaint” and “First Amended Complaint.” Use words, not alphabet soup.
To no avail.
We suggest that the partner include on the litigation team a gifted writer (because we’re too nice to suggest that the partner include on the litigation team “a lawyer who’s worth a damn”). But nothing ever changes; the partner never hears us. Confronted with an avalanche of criticism and suggestions, no law firm partner has ever said to us, “Why, thank you. Now that you mention it, I realize that I am in fact inept. To better serve your legal needs, I’ll replace myself with a real lawyer.”
No, no, no. Instead, the partner continues to send us bad briefs, making the same mistakes over and over, but seemingly thinking that we may not care the next time around. It’s Einstein’s definition of insanity: “Doing the same thing over and over again and expecting different results.”
Up to that point, the fault is the partner’s. But then I personally make two mistakes….
First, I continue to talk directly to the relationship lawyer to try to improve the situation. That’s Einstein back at you again: If the relationship lawyer doesn’t understand what you’re saying the first time you talk to him, why should he understand it the fourth or fifth time? But I’m too “nice” to do what’s really necessary, which is to call the managing partner of the firm and explain that the firm is about to lose a big client unless the firm staffs our cases differently. Why do I do the crazy thing repeatedly, and never do the thing that might actually fix the situation? Because it feels somehow impolite or unfair to tell the managing partner that one of her colleagues is inept. So I let the situation fester.
Then I make my second mistake: I do not draw the correct mental conclusion that my relationship lawyer, John Doe, is inept. Rather, I draw the incorrect conclusion that the law firm of Bigg & Mediocre is an inept institution. I let the one case that the firm is handling for us stagger to its conclusion, and then I put out the word that we should never again retain B&M.
(The joint where I work is actually slightly more fair than this to outside counsel. We insist on conducting annual reviews of the firms that represent us, which ensures that the firms receive feedback. But the relationship lawyer often attends those meetings, so we’re frequently giving constructive criticism to the very person least able (or willing) to hear it.)
What should corporate counsel do?
Don’t be as stupid as I am. (I admit that that’s setting the bar mighty low.) Don’t blame an entire law firm for the ineptitude of a single lawyer, and don’t avoid confrontation by limiting your criticism to speaking only to the relationship lawyer. Realize that the firm might actually be okay; speak to someone with the capacity to fix the situation; and thus give the firm a decent chance to prove itself.
And then there’s the other side of the coin: What should law firms do?
First, have disinterested lawyers — partners not involved in representing the client — solicit candid feedback from clients. Solicit that feedback mid-year, so the conversation doesn’t conflict with an annual year-end review. During that session, listen carefully to what the client says. (Hint: “I rate the quality of your firm’s work as just below middle of the pack” is not praise.) Ask the client what your firm can do to improve (or expand) the relationship, and heed the advice you receive.
Second, impose real quality control on partnership decisions. A client that has a bad experience with just one of your partners may mistakenly choose to condemn your entire institution. This makes the quality of your partnership awfully important. Try to apply uniform criteria, applied equally across all offices, when you make partnership decisions. Hire lateral partners sparingly (because you probably know little about the true quality of those folks’ work).
Finally, think about how you can encourage clients to switch lawyers, rather than firms, when clients are unhappy with the service they’re receiving. If it were easier (and less embarrassing) to replace the lawyers working on a team, then firms would not lose clients unnecessarily.
But don’t keep doing over and over what you’ve been doing unsuccessfully in the past. That’s just insane.
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].