Let’s assume for a moment that arithmetic is true.
This means that the average lawyer is average.
And average is actually pretty bad. (As one of my co-clerks said during the first week of a clerkship, reading a Ninth Circuit brief several decades ago: “This is great!”
“What? Is the brief good?”
“No! The brief is terrible. We are not gonna starve!”)
The average lawsuit thus pits Tweedledee against Tweedledum, and, sadly, they can’t both lose. After the verdict comes down, Tweedlewhoever boasts on his website of another great victory and yet more proof of his talent and expertise.
Twenty years later, what does that look like?
We receive a “big firm mediocre” brief from outside counsel — a firm that isn’t currently on our approved list, but we’ve used occasionally in the past for cases in the firm’s geography or area of expertise. I read the draft brief and, having tasted, promptly spit it out. Because I’m a nice guy, I resist the urge to type back: “Please have a lawyer with a brain and the ability to write go through this. Then, send me a real draft.”
Even though the final version of my e-mail is so restrained and sweet, the big-firm-mediocre lawyer writes back, protesting that he does have a brain, and he does have the ability to write, and we’ve approved his briefs before, and this draft brief is actually very fine work product. (This proves to me only that the lawyer is both (1) bad and (2) unaware of (a) his limitations and (b) the meaning of “good.”)
When I suggest to one of my fellow in-house lawyers that it may be time to stop hiring this clown, what do I hear?
“But he’s won an awful lot of cases for us in the past.”
Which brings me back to Tweedledee and Tweedledum. After the Tweeds have been practicing law for a few decades, each having “puked his puke of a life away here, I tell you,” the Tweeds both have pretty fine track records. They both have long lists of cases they’ve won. If they’ve been practicing for 25 years, ineptly handling two cases each year and — arithmetic being what it is, and all — winning half of them, then the Tweeds can each boast of having won 25 cases during the course of an illustrious career. These guys must be good! How else could they have had such success?
Sure, Tweedlewhoever has won some cases for us in the past. But look at this brief and his reaction to criticism: The guy is no good, and he doesn’t even know that he’s no good. (Or, as I’ve quoted more elegantly before, “he knows not and knows not he knows not.”) We should shun him.
What of the fact that “he’s won an awful lot of cases for us in the past”? Bad lawyers win their share of cases — so anyone will win some cases for us. But better lawyers win more than their share of cases. And we don’t have a control universe here: Perhaps Tweedlewhoever did not spot a critical issue back in 2002, so we never filed a winning summary judgment motion in that case. I understand that we may have settled on the cheap, but perhaps we should have gotten out on motion.
When Tweedlewhoever tells us that he did a great job preparing a witness, how do we know it to be true? The in-house lawyer may not have attended the prep session; even if she did, she surely didn’t read all of the e-mails and documents and figure out what a great prep session would have looked like. Tweed tells us that he did fine work; why should we believe him?
I understand that Tweed has won some cases for us, but a good lawyer might have won all of the cases for us. We’ll never know.
Incredibly, I’ve become even less forgiving (of outside counsel) during the few years that I’ve spent in-house. If you send us bad work, then I’m going to conclude that you’re bad. And I really don’t care if you insist that you’re good or that you’ve “won a lot of cases for us in the past.”
If I have a choice between your arithmetically-accurate-but-terribly-misleading track record and my lying eyes, I’m going with my lying eyes.
That is all I “know on earth, and all [I] need to know.”
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 firstname.lastname@example.org.