Biglaw, In-House Counsel, Partner Issues

Nothing You Can Say Can Cause Me To Retain You

Nothing you can say or do can cause me to retain you.

That’s terribly disheartening for folks who believe that business development should work, but it’s awfully close to being true.

Why is there nothing you can say that will cause me to hire you?

Because long experience (and the rules of arithmetic) have taught me that the average lawyer is average. So about 68 percent of all lawyers are within one standard deviation from the mean, and about 95 percent are within two standard deviations. And that’s roughly the mark that I’m aiming for when I hire outside counsel: Good lawyers. Really good lawyers. Maybe two standard deviations from the mean.

This means that if I picked my outside counsel randomly, I’d be disappointed 19 times out of 20. I don’t like those odds, so I don’t pick outside counsel randomly.

And if I picked my outside counsel based on which outside lawyers told me that they personally think they’re great, I’d still be disappointed 19 times out of 20. I still don’t like those odds.

I don’t know if other inside counsel view things the same way I do. But, if they do, it makes business development awfully tricky. If there’s nothing you can say or do to cause me to hire you, what forms of business development might work?

Meeting me at a cocktail party and chatting me up won’t work.

Swapping business cards with me won’t work.

Following up after the cocktail party with a call or e-mail and sitting down with me for a cup of coffee or lunch won’t work.

After we had coffee, you’d be thinking: “I met Herrmann, so now he associates a face with a name. I told him what a great lawyer I am. I gave him some brochures that explain what a great firm we have. So now I’ll just sit by the phone and wait for his call.”

But I’d be thinking: “He seemed like a pretty decent guy. But, if I hired him, I’d be disappointed 19 times out of 20. Six months from now, I’d be tearing my hair out, wondering why I was so stupid as to have retained this clown and why I’m being forced to think through the case on my own. Why should I do that to myself?”

My corporation does, after all, have incumbent outside counsel — lawyers we’ve worked with for years. We removed the bad lawyers from our list of approved counsel years ago, so everyone who remains on the list is good — two standard deviations from the mean. If I hire one of those folks, I know that we’ll get good service and good quality work. There’s no reason for me to hire anyone else.

When might I add you to the list of approved counsel?

Almost never.

I might add you to our approved list if you and I had worked together closely when I was in private practice, and I know (from having watched you in action, up close and personal) that you’re breathtakingly smart, write with ease and grace, are smooth on your feet, and are tough as nails when the situation requires it.

So that gives about six or eight folks the chance of getting on our approved list.

I might add you to our approved list if someone else in our in-house law department (whose opinion I trust) says that she’s worked closely with you in the past, and that she can swear by you.

I might hire you if we need a lawyer in some obscure area of law — the escheat laws of Kansas, maybe — and we don’t know anyone else who practices in that field. I’d be confident that you were going to disappoint me, but I’d have to retain someone, and you’re the only game in town. Against my better judgment, I’ll bite the bullet and hire you.

So, too, if we need counsel in some obscure geography, and we don’t know any other lawyers there. It kills me to be trying to identify the best lawyer in Honduras, but we don’t have any Honduran counsel on our approved list, so I’ll have to find someone. You win. (I probably lose.)

You could try to position yourself to be retained if all of our usual lawyers were conflicted out of a particular case. But that’s trickier than it sounds: First, you’d need a case so large that it conflicted out everyone we typically use, and that would have to be one heckuva big case. Second, I have lots of names of lawyers who’d like me to retain them “if the right situation ever comes up,” so it would be a happy coincidence if you ended up at the top of that list. A happy coincidence, but not an impossible one, so maybe it’s worth your effort.

You could call to offer to present a CLE course for our in-house lawyers on a topic specifically tailored to interest us, buy sandwiches and cookies for the gang, get us all an hour of CLE credit, and then blow us away in our conference room with the quality of your ideas and presentation.

But most folks do okay on the sandwiches, cookies, and CLE credit front, and then leave us thinking: “That was quite an unimpressive class. If we hired those guys, we’d be disappointed 19 times out of 20.

“Pretty good cookie, though.”

Or, you could do what the best marketing gurus already recommend: Impress the daylights out of your existing clients.

When picking which of our incumbent counsel to retain for a new case, most of our incumbents probably have a fair shot at the work. That’s a real opportunity for a select few outside lawyers.

Folks who don’t currently work for my company should do the same with their existing clients: Impress the daylights out of your existing clients, and ask them to hire you for more things.

I didn’t say my thoughts were uplifting, or new, or exciting — every sentient person knows that cross-selling to existing clients is a potentially important source of business.

But, the more I think about it, the more I realize that basically nothing you can say or do will cause me to retain you. Which means that you’d better do all you can with the people who have already retained you.

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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