When you work as a litigator at a law firm, you know your cases. You know who said what to whom when. You know the recipients and dates of the critical emails. You know the precise terms of the contracts. You know what the opposing expert said at his deposition and how you’re going to attack him at trial.
In short, you know stuff.
When you move in-house — or, at a minimum, to certain in-house positions — those days may vanish. You may never know — really know — anything again.
The little cases may become barely a rumor: The employee was entitled to five weeks severance; he hired a lawyer and filed a lawsuit; we want authority to settle for ten weeks severance. You may kick the tires on the case for a few minutes, but that’s it. If you crave to know who said what to whom when, then you’re in the wrong job.
I feel a bit irresponsible having written those words, because they imply — indeed, they say — that folks in positions such as mine are doing their jobs without full knowledge. To many lawyers, that’s the ultimate sin. Yet in-house lawyers consistently say that a big piece of the transition from a firm to a corporation is learning to make decisions and take actions based on incomplete facts. (One of my colleagues recently said that he suffers from “in-house ADD.”)
If you’re an in-house business lawyer, an executive may give you a five-minute summary of a situation and ask for your legal advice. You can ask a couple of questions, but then you owe an answer. You typically can’t tell the executive that you’d like to gather all of the emails, review the contract language, interview the witnesses, and give the executive a precisely accurate answer six weeks from now. Business moves quickly; you must, too.
If you’re an in-house litigator responsible for a bunch of cases, how closely can you monitor them? If you’re handling 20 cases, you may know them as well as the outside lawyer does. If you’re supervising 200 cases, not so much. If you’re responsible for 2,000 cases, you’re toast.
You can surely get status reports about each of your many cases, but that puts you at the mercy of your intermediary — the person who really knows the facts and chooses which ones to include in the summary. “We’re dead. We’re dead. We’re dead. We’re dead. Oh — did I forget to mention that the plaintiff’s claim is time-barred?” Yeah; I guess that was worth mentioning — but, if the intermediary had chosen to omit that fact, how would you have known?
You can read all of the briefs filed on your company’s behalf. But can you read all (or most) of the cases cited in the briefs? Even if you could, unless you reviewed the entire evidentiary record, how would you know what critical facts your advocate may have omitted from the briefs?
You could read all of the deposition transcripts in your cases. But that provides only limited insight: Who knows what questions were never asked because counsel didn’t realize the importance of some key fact? The only way to truly know a case is to read the underlying documents and talk to the witnesses, and that’s impossible in a high-volume world.
Is it uncomfortable to live in a state of ignorance? For anyone who grew up taking pride in having complete knowledge of a factual record, it is.
Is it irresponsible to live in a state of ignorance? It is not. One can only do what one can do. So long as you have trustworthy people at the helm of individual matters, it’s not irresponsible to live in a world of delegated responsibility.
Finally, will you enjoy living in a world of ignorance? That really depends on your personality. Some people have little tolerance for details and prefer thinking only about big pictures; other people hate the forest and love the trees. If you’re thinking about moving to (or from) a corporate law department, consider for a minute whether your new job will require — or permit — you to delve into the facts of matters in which you’re involved.
If your job disengages you from the facts, you’ll have to learn to stop worrying and love the ignorance.
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].