Biglaw, In-House Counsel, Litigators

Inside Straight: An Objective Formula For Choosing Counsel

Although I won’t name names here (because my employer is, among other things, the insurance broker to the stars, and I can’t afford to offend clients or potential clients), I just stumbled across an article that indirectly told me how to pick outside counsel.

In a relatively high-profile situation, a government entity recently had to retain an outside law firm. The government naturally retained an outside adviser to help the government make its choice. (How else could one possibly pick counsel?)

The outside adviser — I think you’d call the outfit a management consultant, although the website left me a little confused — has lots of MBAs on staff, but there’s not a lawyer to be seen. No matter: The MBAs created a questionnaire for the law firms to fill out, and the law firm that accumulated the most points won the business.

This is great! It’s time (once again) for me to stop thinking and start copying! We’ll revamp our whole system for choosing counsel! In the future, we’ll give the law firms who want our business a form to complete. We’ll add up the points — even I can do that. And then we’ll choose the law firm with the most points, thus retaining the best firm in the world to handle our matter through an objectively defensible selection process, in case anyone ever wants to second-guess our choice of counsel.

Shoot! If only I’d gone to business school, I could have been this smart! Let’s take a look at the questionnaire, so I’ll know the form that I’m copying to choose counsel for my next case . . . .

The management consultants apparently told the government to quiz law firms about four things: (1) a connection to the geographic region in which the government-entity-client was located, (2) experience in the type of matter for which the government needed help, (3) the strength of other practice areas at the firm, and (4) disclosed conflicts. (Don’t ask me what that last category means: Does a firm get more points for disclosing lots of conflicts? Or does the firm lose points for disclosing conflicts, so the firm should conceal them? When we use the questionnaire at my joint, I think maybe we’ll just ask the firms to disclose actual or potential conflicts as required by the rules of ethics, and then decide who it’s possible, or intelligent, to use.)

What about the three factors that we’ll use when I copy this form? A connection to the region might matter for a government client, which cares about politics: Elected officials might worry about being criticized for hiring a law firm with no local roots. But geography doesn’t matter too much to corporations that are retaining counsel for big cases. For significant matters, outside counsel are pretty good about getting on planes, and we’re likely to retain local counsel for anything that requires a local presence or intelligence. I don’t think we’ll give too many points to firms that happen to be located near our headquarters.

What about experience in the type of matter for which we need help? Thank God someone hired those MBAs! How would we ever have realized that we need to retain lawyers with relevant experience?

But whose experience? Is it “the firm’s” experience? If so, that’s an invitation to hire the largest firm that fills out your form, because bigger firms will collectively have more experience than smaller ones.

Or is it the experience of the particular lawyers who promise to serve on your client team? If so, the client had better be pretty careful here: Lawyers are pretty clever about claiming credit for things they just barely touched. (This criticism of course isn’t limited to lawyers at big firms. When I was in private practice, I participated in MDLs in which famous plaintiffs lawyers would appear at the hearing at which the court was selecting lead counsel, be chosen as lead counsel, and then never be seen again in the life of the litigation. When the next MDL rolled around, those same lawyers would trumpet the fact that they had recently served on the steering committee of the last MDL, even though the lawyer had done absolutely nothing in the earlier case.)

A heavy-hitting litigator may put his (or her) name on briefs that he (or she) never read, let alone wrote, and then later include that matter as “experience” when pursuing new business. If a questionnaire asks lawyers about their “experience,” the form had better include a bunch of follow-up questions to distinguish actual experience from bluster.

And, of course, experience is only part of the issue. If you live long enough, you’ll acquire a lot of experience. But if you’re not any good, that experience won’t help a client. So the hard question — the one that the consultants’ form can’t address — is quality: Is the lawyer you’re thinking of hiring any good? There’s only one way to judge that: You must have seen the lawyer in action, at sufficiently close range to judge for yourself whether the guy can fog a mirror. Absent personal knowledge, you must find a good lawyer who has seen the candidate in action, and ask the lawyer what he thinks of the candidate. But even that’s a little tricky: Average lawyers often have no clue whether other lawyers are any good. (Or, as Arthur Conan Doyle put it: “Mediocrity does not see higher than itself. But talent instantly recognizes the genius.”)

So the consultants’ form actually doesn’t obtain the one piece of information most important when retaining outside counsel: Is the guy any good?

I’m afraid I may not be able simply to copy the form, after all.

And then the form wanders off into “strength of other practice areas,” which again is likely to reward large firms, rather than great ones. The question really isn’t whether the firm has other good practices, but rather whether the few people from those practices who you might help you in your matter are any good.

Again, the form is unable to assess quality and seemingly makes no effort to do so.

Quality: That’s the hard part, and it’s where the consultants can’t help. I guess we’ll be stuck hiring counsel the traditional way: Trying to find a lawyer who not only has some relevant experience, but who also is good.

How terribly old-fashioned.

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

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