What’s left? Today’s topic: How to drive outside counsel nuts.
I’d say that I’ve been thinking long and hard about this subject to permit me to draft this column, but that wouldn’t be true. I’m a natural at this!
How do you drive outside counsel nuts?
First: Insist that outside counsel prepare a budget for every matter. Then complain that the budget is too high; tell counsel to reduce it. Complain that your business will never accept even the revised budget, and tell counsel to cut the estimate further. When you get the second revision, gin up some reason why even that’s too high, and have counsel cut the budget again.
Six months later, when counsel has blown through the budget, refuse to pay the bill! “You told me you could handle this case for damn near nothing. And now you want all this money? This is far more than what you budgeted. There’s no way we’re paying this!”
See? I told you that I was a natural. And I’m just getting warmed up . . . .
How else can you drive outside counsel nuts?
Second: At the beginning of every case, instruct counsel to prepare a budget for the life of the matter. Force counsel to update those budgets regularly — maybe monthly, providing rolling twelve-month budgets every month.
Explain to counsel that you’ll need a little detail in the budgets. Instruct counsel to break down the budget by the ABA Task Codes: In each month, how much money will be spent on L120 (“analysis/strategy,” if memory serves me)? And how much on L130 (whatever the heck that is). And L240? We can’t work from aggregate budgets; we need this detail!
Outside counsel will complain that budgets become less reliable as they become more detailed; aggregate numbers are more likely to be accurate than specific ones. Counsel may also whine about the subjectivity involved when lawyers decide where to charge their time. Does the time spent drafting a brief supporting settlement of a class action belong under “class action” or “settlement” or “motion”? Counsel will say that he can’t predict the task code to which lawyers will assign their time.
Blow off all those objections. “Our other firms manage to do it.” “Do the best you can.” Whatever. We’re not talking logic here; we’re talking about toying with our outside counsel.
Just when counsel is despondent and about to break down, twist the knife! Tell counsel that merely dividing the budget by task code isn’t enough. Counsel must specify what type of lawyer will be performing each task. How much time will be spent by junior associates doing L120? Senior associates? Junior partners? Senior partners? (“We understand that it’s hard to be precise when you’re doing these projections. Just give us your best estimates.”)
At year-end, even if the firm has managed to stay within the budget, complain about the misallocation between task codes: “You dramatically over-estimated the time that would be required for L420, and you under-estimated L110 and L150. I must say that the estimate for L150 for the senior associate tranche was particularly far afield. Can you explain that, please?”
Ah! I can feel outside counsel cracking even as I type!
How else can we torture the sad sack?
Third: Insist that the partner personally perform work that would best be done by associates. “I know that you typically let junior lawyers review documents, but this case is very important to us. I insist — insist! — that you personally review every page of every document before you send things out the door.”
Overrule counsel’s objections based on cost, efficiency, and logic. You are, after all, the client. Force the partner to get his hands dirty for a change.
Here’s the best part: When you get the bill, complain that it’s too high! (I told you I had a knack for this.) Tell the partner that document review simply shouldn’t be that expensive, and express your outrage. Hack the bill. Pay only two thirds of it. In fact, pay only one third! Go to two thirds only if the partner objects and says that he was doing your bidding. (If counsel tries that crap, turn the tables on him: “You’re my outside lawyer! If you thought I was doing something that didn’t make sense, you should have warned me!” If he says that he did warn you, change the subject. Or hang up on him and explain later that your cell phone dropped the call. I don’t much care what you tell him; truth shouldn’t interfere when we’re having fun!)
I’m working up a head of steam now, but I really don’t want to interfere with your creativity.
Come up with a few ideas of your own, and share ‘em in the comments. We pay outside counsel an awful lot of money; surely we can have some fun with them along the way!
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 and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at [email protected].