Here’s another story from real life (unless I’m making it up). The draft mediation statement starts with: “We sued them in Texas, and they sued us in Florida. Judges in both courts have now considered the issues.”
I write back, in my usual sensitive, caring way: “Any brief in the world could start with, ‘Somebody sued somebody’; that’s kind of the starting point for lawsuits. Because your opening sentence is entirely generic, it’s entirely unpersuasive. Please consider starting instead with: ‘BigCo hired three professional assassins to storm our world headquarters. During the assault, the assassins killed six of our employees, wounded four, and stole our trade secrets along the way.’ Having thus shown the mediator that we should win, we could then go on to note that we sued them in Texas, and they sued us in Florida, and judges in both courts have now considered the issues.”
Outside counsel writes back: “Perhaps you’d be right in some other case, but not in this one. We mediated this same case 18 months ago in front of the same mediator, so he already knows what our case is about. He doesn’t need any more of an introduction than my draft provides.”
What are the mistakes here? First, I’m the client. If I propose doing something idiotic, then stop me by any means necessary. But, in close calls, let me win; that’s called client service (and it’s what I did during the 25 years I spent in private practice). Second, this isn’t a close call. When I’m right and you’re wrong, let me win; that’s called intelligence. Third, and why I’ve set fingers to keyboard — you’ve made a mistake that I see repeatedly among lawyers: You think that people remember you . . . .
If we mediated a case before Mediator Smith 18 months ago, then Smith has probably had 50 to 100 mediations since then. Even if he cared about your case, he wouldn’t remember it. And he doesn’t care about your case; it’s just part of the avalanche that crosses his desk during a professional lifetime. I guarantee you that this mediator won’t see the caption of your case and instantly think, “Oh, yes! The trade secrets case!” (Okay, okay. My histrionics got in the way of my point here. If the case really involved paid assassins and multiple homicides, I suppose the mediator might remember it. But if the case involved only, say, documents being downloaded to a thumb drive and your client’s resulting outrage, then my point is valid.)
Thinking that people remember you! You’re wrong, and it causes you to miscalculate.
I’ve had lawyers tell me that we didn’t need a sexy, two-sentence introduction to a brief because, “The judge has been handling this case through two years of pretrial.”
Yeah. But the judge has been handling many hundreds of other cases through those same two years of pretrial, and yours is no different from the rest. He doesn’t remember you.
(Note to young lawyers: When you meet a judge at a cocktail party, don’t say, “I’ve appeared in front of you. I argued a discovery motion in the Jones case six months ago.” It was a big deal for you, but it was utterly irrelevant to the judge. He doesn’t remember you, he doesn’t remember the Jones case, and he doesn’t care that you argued before him.)
It’s the same thing when you’re communicating with your clients: They don’t remember you. The in-house lawyer supervising your case day-to-day knows the name of your case and the identities of the key witnesses. The in-house lawyer’s boss knows the name of your case if the case is material and discussed in the corporate securities filings. The in-house lawyer’s boss’s boss doesn’t know why you’ve come into his office. And the CEO wishes you’d leave already and let her get back to work.
When you plop yourself into a chair and tell us that Boswell is working out nicely and you killed Johnson at depo last week, you’ve made the lawyer’s error: Because you’ve been wallowing in the details of this case for the last year, you assume that everyone else is wallowing in the details of the case, too. You assume that people remember you.
They don’t. So start sensibly: “We scheduled this meeting to discuss Keats v. Yeats, a lawsuit in which your English subsidiary allegedly performed negligent engineering work for an Irish firm, and the Irish firm’s building collapsed. The centre could not hold; mere anarchy was loosed upon the firm. The case is set for trial in less than two months, and we’re here to discuss settlement authority.”
Oh! That’s who you are and why you’re here! What a pleasant thing to know. (And you’re such a literary fellow, too.)
My point is not that I’m an exceptionally busy guy, so you must treat me personally with dignity. (That would be asking way too much.) Rather, my point is that you’re living your life, but other people are living theirs. When you walk into someone’s office, that person could be six hours into intensive preparation for an appellate argument in a case that you know nothing about. The topic that you want to discuss could be the last thing on that person’s mind.
And life in-house is, by its very nature, less focused than life at a law firm. (I first typed “more hectic” in that last sentence and then went back to correct myself. Life at a law firm can be quite hectic, but it’s more focused than in-house life. Outside counsel often have the luxury of actually thinking about a single issue for more than 30 seconds at a time. The difference between life at a firm and a corporation is not one of pace, but one of focus: If we need someone to focus on an issue for a week, we may well have to retain outside counsel. In-house lawyers spend their lives going from meeting to meeting and issue to issue, with relatively few opportunities for sustained thought.)
Many issues are likely to cross the desk of an in-house lawyer during the course of a week. When you call, the in-house lawyer who answers the phone is not thinking about your issue. So pause, take a second to remind people who you are and why you’re here, and proceed only then.
That advice goes for everyone: Partners interrupting associates who are thinking about other things; associates interrupting partners; outside counsel interrupting in-house and vice versa; and non-lawyers interrupting lawyers and vice versa.
And especially in mediation statements, because we don’t pay you twelve dollars an hour to lose.
No one remembers you! Keep that in mind, and you’ll communicate far more effectively.
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].