For every matter that we handle, we need one “unifying mind.” We need one person at the helm; that person must either personally know everything that’s happening in the matter or, at a minimum, know where the knowledge lies. (Extraordinary cases may be beyond the capacity of a single unifying mind and may require two or more. But those situations are exceptional, and they pose challenges beyond what I’m thinking about today.)
The unifying mind might be found anywhere in the hierarchy, depending on the type of matter involved. At a law firm, the unifying mind can be a partner, if the matter is large and the partner a hands-on type. Or the unifying mind can be an associate charged with monitoring and tracking all events. But everyone on the team should know who’s at the helm, so everyone knows the person who should receive copies of correspondence, alerts about upcoming events, and reports about how things are going.
At an in-house law department, we, too, must have a unifying mind for every matter. In the litigation world, a corporation may have several line lawyers whose job is to supervise cases on a day-to-day basis. The line lawyer primarily responsible for overseeing a particular case should typically serve as the unifying mind for that matter. Outside counsel should communicate with that person, and everyone in-house should know that’s the lawyer to call if they need detailed information about a lawsuit.
That’s all fine in theory, but two things often screw this up in practice. What two things?
First, you can foolishly put the wrong person at the helm of a project, or the wrong person can unilaterally put himself (or herself) at the helm. Let’s assume that a corporation’s day-to-day litigators report to a head of litigation who reports to a general counsel. The CEO might hear about a business dispute and walk down the hall to talk to the GC. The GC naturally pokes around a little bit and then advises the CEO. No problem, so far.
But then the issue lingers for a while, and the GC is too busy to serve the day-to-day function of staying abreast of developing facts and events. Unless you’ve pried primary responsibility for the matter out of the hands of the GC and created a unifying mind with time to monitor the spat, you’ll soon have no one at the helm. The GC won’t know what’s happening (because she doesn’t have time to stay on top of things), and no one else will know what’s happening, either (because there’s no one, other than the GC, specifically charged with monitoring the matter).
My lesson here is for senior folks in an in-house law department: You may be a very fine lawyer, but be wary of serving as the point person for any particular matter. Unless you have both time and inclination to serve as the unifying mind, give someone else primary responsibility for monitoring the situation.
There’s a second thing that can screw up your effort to create a unifying mind. That’s the nasty trait known as “friendship.” Suppose you retain an outside lawyer who has a decades-long friendship with the CEO — or the GC, or the head of litigation, or anyone who should not be the unifying mind. You (correctly) assign a line lawyer to serve as the unifying mind for the case. But your old friend, the outside counsel, will naturally report in to the corporation in the wrong place: The old friend of the head of litigation will call the head of litigation to chat about the case. Those are very nice phone calls to make, but they put information into the wrong brain: The unifying mind — the line lawyer responsible for day-to-day management of the matter — is the one who needs the information, and the outside lawyer is ignoring that person.
When this happens, the senior in-house lawyer must be keenly aware of the problem that he or she is creating. When the head of litigation receives a call from outside counsel, the in-house lawyer must do one of two things: Either tell the outside lawyer to make a second phone call — reporting the same events to the unifying mind — or, alternatively, immediately after hanging up the phone with your old friend, send an e-mail to the unifying mind telling the mind what’s up. Ignore these suggestions at your peril, because you’ll be leaving the unifying mind out of the loop.
What happens when the unifying mind is out of the loop? Something goes wrong, and no one knows why. Your company overlooks some tax issue. The head of litigation is outraged: “How could we have missed the tax issue? We were completely aware of it! I talked to outside counsel about it!”
And the unifying mind says: “Sorry, but I never heard a word about that issue. This is the first time anyone’s mentioned it to me.”
Those types of miscommunications occur either because a matter has been assigned to the wrong person or because folks have forgotten the role of the unifying mind.
Put one person in charge of each matter. Make sure that person has the time and inclination to monitor the matter properly. Funnel virtually all communications through that person. If you hear relevant information that won’t otherwise make its way to the unifying mind, then pass that information on. And insist that outside counsel do the same.
If you delegate intelligently, and then insist that everyone heed that delegation of authority, things will play out swimmingly. But if you put the wrong person at the helm, or forget to keep the appointed person in the loop, you’ll have robbed yourself of a unifying mind — which means that you’ll be adrift at sea with no one at the helm.
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].