Biglaw, Blogging, Books, In-House Counsel, Law Reviews, Media and Journalism

Inside Straight: ‘Recreational’ Writing, In-House and Out

Complete honesty is such a dangerous thing.

I’m going to give it a shot.

I’m posing three questions to myself today. First, why might a lawyer at a law firm choose to write articles? Second, what topics should lawyers write about, and where should they publish the articles? Finally, why might an in-house lawyer choose to write?

The honest truth is that outside lawyers choose to write for many, varied reasons. In-house lawyers might also choose to write for many reasons, but those reasons are different and fewer. Across the board, authors’ motivations for writing will be mixed.

Do I have a right to speak on the subject of publications? My credentials, in a nutshell, are these: Three books; twelve law review articles; two book chapters; about 70 other, shorter articles (in places ranging from The Wall Street Journal and the Chicago Tribune to Pharmaceutical Executive and Litigation); and maybe 600 blog posts (roughly 500 at Drug and Device Law and north of 100 here). Call me nuts (and I may well be), but I’ve spent a professional lifetime doing a ton of “recreational” legal writing.

Why did I do it? Should you?

As a lawyer at a firm, why write? I’ll start with three answers that you weren’t expecting and only slowly work my way around to “business development.” Here’s the first reason to write: Write because you’re not 100 percent sure that you’ll want to spend your entire professional life practicing law, and you may someday want to “retire” into academia. (Long, long ago, that was part of my motivation. Then the 1980s ended.) If that’s your motivation, then write a law review article or two while you’re relatively young, and jump ship while you still have a sufficiently long professional life ahead of you to build a reputation as a scholar. You can dabble in scholarship over the course of decades, if you care to, but if you’re writing primarily as a vehicle for entering academia, the smart money says that you should act quickly.

Why else might you choose to write?

You might choose to write from the noblest of motivations: Write because you have a clever idea, and you want to share that idea with the world. You can help your readers with a legal issue, advance the development of the law, and get some personal pleasure out of sharing your thought. Those words may strike many readers of this column as insanity and only a few as either credible or enticing, but I swear that this motivated me (in part) to write over the years.

Write to help your clients. Suppose you’re advocating on behalf of a client a legal position that some people perceive to be “as black as hell, as dark as night.” Some law professor writes a liberal screed undercutting your client’s legal position, and plaintiffs’ lawyers are attaching copies of that 40-page law review article as Exhibit A to crappy five-page briefs. You thus can’t respond to all of the arguments in five pages of opposition, and you’re not allowed to file a 45-page response. What do you do? Write your own law review article, and attach your article as Exhibit A to your five-page brief. Now the judge has two short briefs, and the judge can choose to delve into the issues more closely if the judge so pleases. (Again, I’m not making this up; I’ve written at least one article in part for that reason. Before you ask: No, I didn’t charge the client for time spent writing the article. The client didn’t commission the thing or ask me to write it. And I received personal benefits from having written the piece, including satisfaction and the possibility of attracting new business. Your blood doesn’t always have to run green.)

Finally, write to develop business. This is self-evident: If you write articles, you are likely to be asked to write more articles and to give talks on the subjects about which you’ve written. You can send reprints of your articles to clients and prospects. At beauty contests, you can hand out copies of your articles. Writing articles is one part of a broader business development plan.

If you’re writing to attract clients, what should you write, and where should you publish? First, write on substantive topics, not procedural or evidentiary ones. Clients hire “10b-5 lawyers” or “product liability lawyers;” clients almost never hire “removal lawyers” or “Federal Rule of Evidence 103” lawyers. Second, publish in the trade press, not the legal press or scholarly journals. If you’re writing to develop pharmaceutical product liability business, aim for Pharmaceutical Executive, not the National Law Journal or the Michigan Law Review.

When you write, must you have anything to say? It depends. Try not to embarrass yourself by saying in print things that are either pablum or wrong. But, if you’re writing solely to develop business, you don’t need a novel legal thesis. Clients may be interested in articles that simply describe a recent development in a relevant area; you don’t need a creative idea to crank out one of those articles. If you’d like to take it up a notch, then gin up a thesis — perhaps even one that’s new or interesting. But that’s hardly essential. I personally have written some articles that said new and provocative things and other articles that simply put my name in a public place, hopefully without causing me undue embarrassment.

What happens when you move in-house? Your motivations change. Business development is no longer part of your job; in-house lawyers don’t write for that reason. If you’re in-house, young, and considering a career in academia, then it makes sense to write a scholarly piece or two. If you have a thought that you’d like to share, then you may still get some satisfaction out of sharing it. You can write to help your client, although that may be trickier to do as an in-house lawyer than an outside one — for reasons of both politics and job responsibility. (Unless you’re at the helm of researching and writing briefs — and many in-house lawyers are not — it’s hard to crank out a scholarly article in a reasonable amount of time.)

Finally, the ultimate in navel-gazing: Why do I write this column? As always, my motivations are mixed: It’s interesting to be involved in the public discussion. It’s good for a company (such as mine) that serves as an insurance broker to law firms to have its name mentioned to tens of thousands of lawyers twice each week. It’s good for our corporate law department if our lawyers maintain relatively high profiles, because that makes us a more attractive employer when we recruit new in-house lawyers. It’s personally a good idea for me to maintain a relatively high profile, because people then remember that I exist. That’s about it. (Okay, okay: I said I’d be completely honest. Writing this column has surely prompted sales of more than a few Curmudgeons, and this was a great vehicle for launching Drug and Device Product Liability Litigation Strategy. And, I confess, Lat pays me enough for writing these ditties that, after taxes, I can go out for one nice dinner a month. Like I said, our motives are always mixed.)

On the other hand, if you’re an in-house lawyer and you speak publicly, be very, very careful. I, for example, cannot offend law firms (on either side of the “v.”), because our brokers will place insurance for any law firm; I can’t offend clients or potential clients. I cannot offend corporations, because we act as insurance brokers for most of the Fortune 500, and we’d love to help the rest. Those are overwhelming constraints. For example, someone recently asked me to write a post advocating a certain position about the “Stop Online Piracy Act,” a fascinating legal topic that has fractured corporate America. Half the Fortune 500 would love the position I was asked to advocate, and the other half would be outraged. If I were to write that post, I’d infuriate clients and potential clients and have brokers with pitchforks storming my office door. That ain’t gonna happen.

What about you — should you write? What motivates you? Write for personal satisfaction; you can’t lose. If you’re at a firm, write to develop business; over time, that may prove a worthwhile effort. If you’re in-house (and thus not concerned with developing business), then choosing to write is a much closer call: The benefits are fewer and the risks more perilous. And one thing is certain: The rewards to in-house lawyers of writing will be far more ephemeral and far less green than the rewards to outside lawyers.

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

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