Long ago, my law firm won an appeal, and we were thinking of publicizing the victory for the benefit of both the client and our firm.
“It’ll be good to get some attention,” I said to the senior partner.
“It’s easy to get attention,” said he. “Just run naked down Market Street at high noon. We don’t want attention. We want good attention.”
The same could be said of corporate law departments: It’s easy to get attention. It’s harder to get attention for simply doing a good job.
Suppose you wanted your corporation’s law department to be the darling of the press and be nominated for “law department of the year” honors. What would you do?
It’s easy: Make the type of big, public announcements that draw attention: “Our law department is announcing three major initiatives. First, we’re announcing a pro bono initiative. All of our in-house lawyers will devote at least 500 hours per year to pro bono matters. Second, we’re implementing a diversity initiative. [Insert details here.] Third, we’re completely eliminating reliance on the billable hour. Henceforth, all of our law firms will work on flat-fee or other alternative billing arrangements.” (There are surely other items that one could add to this list, too, that are escaping my feeble imagination.)
Gin ’em up. Send out a press release. Presto! Your law department would be the toast of the town. People would be beating down your doors seeking interviews. But what would you have accomplished?
Providing legal services to the poor, achieving diversity, and rendering costs more predictable are all laudable goals, well worth pursuing. And all of those goals are quantifiable, which makes them perfect grist for the publicity mill.
But what does a corporation need from its law department at a more mundane level? Lawyers who understand a business; can act quickly and intelligently, often on the basis of less-than-perfect information; respond promptly to clients; communicate clearly and concisely; and give great legal advice.
Suppose your law department made great strides on all of those scores: You recruited great lawyers to join your law department, provided first-rate training after people came on board, and otherwise dramatically improved the quality of work your group performed. Would anyone outside the corporation care?
Ben Heineman certainly drew some attention to GE back in the early 1990s, when he made the conscious (and very public) decision to improve the quality of GE’s law department. But that’s one of a very few examples that come to mind of corporate law departments being known primarily for quality. For the most part, things unrelated to quality attract attention.
Perhaps the problem is that quality is so hard to judge: You say your lawyers are great; the other guy says his lawyers are great. How’s an outsider to break the tie?
You occasionally see the issue arise during contested judicial nominations. The opponents say that the quality of the nominee’s work is terrible. The briefs that he filed while in private practice, for example, were riddled with typographical errors.
The nominee’s supporters drop their jaws in disbelief: “Your only criticism is that his briefs had typos?! That’s high praise for our guy! Who cares about a few typos?”
Of course the real criticism is that the nominee is an empty suit — a terrible lawyer who couldn’t fog a mirror on a good day. But if the opponents launched an attack on the basis of quality — “the nominee’s a terrible lawyer!” — the supporters would respond in kind — “No! The nominee’s a great lawyer!” — and no one could break the tie.
The same thing happens when we set performance objectives for our colleagues in a law department. What you need is improved quality: “I need you to contribute intelligent ideas to the discussion. I need you to communicate coherently.”
But that’s so amorphous. There’s no neutral judge who’s grading an employee’s performance, and the employee measured based on qualitative goals will ultimately feel as though he’s being treated unfairly: “What are you criticizing? My ideas are the envy of Einstein, and my writing’s the envy of Shakespeare.”
So instead of focusing on quality, we focus on the quantifiable stuff: “The employee must teach three courses this year to people in the business units. The employee must take responsibility for X cases. The employee must respond to certain types of requests within three business days.”
The employee satisfies all of the measurable goals, but he still isn’t any damn good.
I’m not downplaying the importance of pro bono work, diversity programs, and alternative fee agreements, any more than I’m disputing the need to create measurable performance objectives. Those things all matter.
But aren’t many of the most important characteristics of great lawyers (and great law departments) completely obscured by the impenetrable fog known as “quality”?
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@example.com.