Biglaw, In-House Counsel

Inside Straight: The Illusion Of Proactivity

At law firms, you only occasionally hear people criticizing lawyers for not “being proactive.” Maybe that’s the nature of the beast: When you’re a litigator at a firm, you’re always considering what moves to make, anticipating the other side’s responses, and planning several moves ahead. Being proactive is the name of the game.

But I often hear in-house lawyers either being criticized (or criticizing others) for not being sufficiently proactive. How can you prove to the world that you’re proactive?

There are two parts to this puzzle: First, you can create the illusion of proactivity. This takes no effort at all, and it will impress people. Do it! Second, you could actually be proactive. This takes a little effort; I’ll leave it to you to decide whether the game is worth the candle. But at least consider being proactive; you might enjoy it, and it might be good for your career . . . .

As a law firm associate, it’s easy to appear to be proactive: Just specify the next steps in the process. When you send the other side’s opposition brief to the partner, don’t just write, “Here’s their brief.” Instead, write, “Here’s their brief. Our opposition brief is due on date X. I’ll get you a draft on date X minus 4.” Any fool can read the rules, calculate the dates, and thus appear to be proactive. Do it!

Actually being proactive is a little harder, because it involves a little thought. An actually proactive transmittal e-mail might say (in addition to the basics): “This brief raises one point that we hadn’t anticipated in our opening brief. That point is X. I have three preliminary ideas on how to respond: A, B, and C. I’ll do some research and see what else comes up. If you have any other thoughts, please let me know.”

Voilà! You’re looking ahead! You’ve become proactive.

If you’re in-house, it’s also easy to project the illusion of proactivity, and only slightly harder to actually be proactive. Thus, when you’re reporting (to people in the business units, or to more senior in-house lawyers, or to whomever) about a recent event in a lawsuit, don’t stop after having recited the historical facts. Instead, go on to provide the next steps: “At the status conference this morning, the court ruled X and set Y deadlines. [That’s the historical part.] This means that the case will now heat up, so we’ll probably be asking Smith, Jones, and Doe to set aside time for deposition preparation and testimony some time in the next six months. We’ll also start working on our motion for summary judgment. Expect us to circulate a draft for your comments [whenever].”

Please note that all of the forward-looking stuff that I just wrote was silly, self-evident foolishness, which the recipients may already have deduced on their own. Don’t worry about it. The sentences that report about future events are the ones that feel proactive; including those sentences will improve your image.

Actually being proactive is slightly harder, because it requires thought: “It’s likely that the plaintiffs will be investigating issue X as we move forward from here. One possible answer is Y, but we could use more (or better) responses to that point. I’ll contact Smith next week to talk this through.”

Writing those forward-looking sentences requires you to play a little mental chess, thinking about what the future holds and preparing for it. But, once you realize that people are judging whether or not you’re proactive, you might want to invest that small effort.

Projecting the illusion of proactivity is a no-brainer. You’re a fool not to do it: Just tell people what comes next.

And actually being proactive really isn’t that hard. Consider adding it to your repertoire, and see how people react.

Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer 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) and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide. You can reach him by email at

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