In-House Counsel, Screw-Ups

House Rules: Taking It On the Chin

The fault for any shortcomings in the presentation were my own. I made almost every rookie mistake in the book.But, I took it on the chin. And so it should be with your in-house practice...

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When I was litigating, I was assigned an arbitration. At the behest of a partner, I was asked to represent a “friend of the firm.” Those of you who understand why those words are in quotes already know where this is going.

The “arbitration,” which was supposed to allow relaxed rules of evidence, and take place in an informal setting, was held instead in a beautifully wood-paneled courtroom, with a gallery full of spectators. The very cranky arbitrator, who turned out to be a bitter ex-judge, ruled against me on each and every evidentiary objection the other side raised. In other words, I was prepared to arbitrate a relatively minor dispute, but I found myself knee deep in a full-blown trial, and there was nothing I could do about it. I took it on the chin, and got my clock cleaned. The result for the client wasn’t terrible, but neither did it support my fee.

I still get the shivers when I recall how terrible that experience felt. I could go on about how the assigned judge in the case pressured me to accept arbitration, assuring me that the arbitrator was a fair-minded individual who’d likely cut the mustard in the case. Or about my adversary, who was chummy with the arbitrator (I found out later). Or, about the client himself, who refused to settle, no matter what strategy I tried.

But, ultimately, I blame myself. The fault for any shortcomings in the presentation were my own. I made almost every rookie mistake in the book. Reading that transcript makes me turn red with shame. But, I took it on the chin. And so it should be with your in-house practice…

You may be brand new in your role in-house, or you may be a seasoned veteran. No matter your experience, you should always, and I do mean always, take full responsibility for your actions, be they successes or missteps. Nothing will grant you the level of trust necessary to operate in the in-house world like being a straight shooter. It’s often the case that the business side folks have a mistrust of legal. Their past experience may have been one of delay (and more delay) while a deal waits to be executed because it’s held up in legal. The reason for this may be that conservatism ruled the workspace under the leadership of a former GC. Or, the filed simply doesn’t trust lawyers. Whatever the case, assuming you have a GC who understands the necessity of well thought out risk taking, your ability to move deals to completion will be that much easier. Further, the fact that you’re willing to take a bullet for the team can gain you no small amount of respect and loyalty.

The same goes for your legal colleagues. I am sure that we could all come up with an anecdote about a former colleague who bitched incessantly about their admin., especially if a filing was late. After a while, though, the rest of us learned that this person was simply adept at passing the buck. When you’re in-house there may not be anyone to whom a buck may pass, and in any event, your screw up may not be the end of the world if you handle it properly. And by properly I mean immediately and fully owning the mistake. It’s quite easy to throw others under the proverbial bus, especially if they’re in a distant geography and unable to defend themselves. But, like the colleague with the “faulty” secretary, you’ll eventually be found out. And that’s the type of truth you don’t need working against you.

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Of course, integrity also comes into play. It’s been said that integrity is the one thing that no one but you can take away. Let’s face it, mistakes happen. Sometimes at the short-term cost of some political capital, but the best salve for a mistake is immediate and total honesty. Once you realize the error has been made, the quicker you can get on top of things by admitting the mistake, the quicker you can begin to rebuild, or in some cases, eradicate any damage.

Lawyers can be a funny breed. All that hard wired zealous competitiveness can fly right out the window if you simply call up the other side, throw yourself on your sword and say “I’m sorry, but…”. I can’t tell you how many times this has worked for me. And conversely, I can’t tell you how many times I’ve been on the receiving end of those calls.

Trust me when I say that karma can be a very real and useful tool. That attorney across the country who calls you before the holidays needing some more time with a document can turn out to be an important ally when the final clauses come up for negotiation. Don’t misunderstand, you’re not going to get xs and os across the wire just because you did someone a favor, but it has been my experience that you get farther with honey than vinegar.

And, importantly in this economy, you truly never know when you might come across a former adversary in the future. Your taking it on the chin due to a misstep of your own making will likely be remembered, and while a short-term battle may be lost, the long term war may end up in your favor.

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After two federal clerkships and several years as a litigator in law firms, David Mowry is happily ensconced as an in-house lawyer at a major technology company. He specializes in commercial leasing transactions, only sometimes misses litigation, and never regrets leaving firm life. You can reach him by email at dmowry00@gmail.com.

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