That’s the rule at law firms. It was my rule when I worked at a firm, and it’s the rule that I now impose on outside lawyers. Thus, when I was a partner, I did not tolerate this excuse after an associate sent me a crappy draft brief, supposedly ready to be sent to a client for review: “I know the draft is not very good. But I didn’t write it. Local counsel did.”
Yeah? So what am I supposed to do with the crappy draft? Send it to the client with a cover note explaining that we propose to file the attached terrible brief, and we should be excused from blame because local counsel wrote it? I don’t think so. If a brief crosses my desk, then it’s my brief. I’m responsible for it. It has to be good.
So, too, with you: When the brief hit your desk, you became responsible for it. The draft brief that you send to me is your best possible work product; there are no excuses.
The same thing is true in-house . . .
Remarkably, law firm partners have told me, after I explained that a brief was unacceptably bad, that the brief had been written by either local counsel or an associate. (Actually, on one occasion, a partner told me that the brief had been written by one of his partners “who doesn’t write that well.” That statement leaves me speechless, so I’m unable to comment.)
Those excuses simply cannot work.
If you send it to me, then it meets with your approval. You vouch for it. Period.
If that’s not the rule, then I have no guarantee that I can trust the things that you send to me.
This rule applies not just to things that you write, but also to things that you say: If you, one of my fellow in-house lawyers, say that a lawsuit has a settlement value of $100,000, then you’re responsible for that judgment. If we discuss the case for a little while, realize that the law is on our side, the plaintiff is a convicted felon, and we have a lock-cinch motion for summary judgment that’s already been written, then you can’t tell me: “Well, outside counsel said that the case was worth $100,000. Maybe outside counsel was wrong.” Once the judgment comes across your desk, the judgment is yours.
In a fast-paced in-house environment, that rule can cause trouble. Someone sends you a draft e-mail, destined for your supervisor’s supervisor’s desk, that’s essentially incomprehensible. The draft badly needs to be translated from English into English. You’re trapped. You can’t disclaim the thing, because it landed on your desk. And you really don’t want to be saddled with responsibility for this lump of coal. You’d love to write back: “You are free to send this e-mail to my boss’s boss, but please explain in a cover note that the e-mail represents exclusively your work, and that I played no role in preparing this travesty.”
Nice, but it doesn’t work: No matter what you ask, the author of the e-mail will say, “I have bounced this e-mail off of [you], and the e-mail has [your] approval.” Tag! Now you’re a moron, too!
It’s very hard to take personal responsibility for everything that you touch. But it’s the only way to build credibility and a reputation. If it comes across your desk, then it’s yours. You have to make it right: “that is all Ye know on earth, and all ye need to know.”
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].