Tomorrow, I’ll be going into a meeting with the folks from finance, and they’ll ask me: “How much are we going to pay in the Smith case, and in what quarter?”
[Note to accounting purists: We'll assume that we could reasonably win Smith, so liability is not probable.]
To be sure that I have the most informed opinion possible, I call outside counsel and cleverly ask: “How much are we going to pay in the Smith case, and in what quarter?”
And outside counsel starts the usual spiel:
“Life is full of surprises. The Lord works in mysterious ways. Litigation is like a black box; you never know what’s inside until you’ve opened it, and by then it’s unstoppable.”
“Yeah, yeah, yeah,” I say. “But how much are we going to pay in the Smith case, and in what quarter?”
“Well,” says outside counsel. . . .
“Litigation is like war. Once you attack, you don’t know how the other side will respond. Costs sometimes go up unexpectedly, and arguments evolve in unlikely ways. It’s hard to predict things.”
“Right. Got it. But how much are we going to pay in the Smith case, and in what quarter?”
“I really don’t want to go out on a limb here. Nothing is written in stone, and we can’t say anything definitive. If I were to give you a guess, I could easily be wrong.”
“Yup — you could be wrong. Life is tough. But the boys in finance are going to ask me tomorrow how much we’re paying in the Smith case, and in what quarter. I’m going to have to answer that question. I can answer based on my own best estimate, or I can answer with my estimate informed by your thoughts. And you’re a whole lot closer to the facts than I am, because you’re handling this case day to day, and I hear about the thing only fleetingly once every month or two. So what’s your best guess: How much are we going to pay in the Smith case, and in what quarter?”
“We haven’t yet completed discovery in Smith. We’re still waiting to receive some documents from the other side, and we haven’t yet deposed some key witnesses. We’ll know a whole lot more a few weeks from now. I’d feel more comfortable giving you an estimate next month.”
If I were cross-examining my outside counsel in front of a jury, I suppose I’d keep going: “I’m sorry; I must have misspoken. If so, I apologize. The question I meant to ask you was this: How much are we going to pay in the Smith case, and in what quarter?”
“Mr. Witness, is it possible to answer this question: How much are we going to pay in the Smith case, and in what quarter?”
And, finally: “Your Honor, will the court please instruct the witness to answer the question?”
But I’m not putting on a show for a jury, and I don’t have a judge conveniently available. So instead of playing cross-examiner, I’ll play TV-talk-show-host: I’ll ask the question three times. If the interviewee refuses to answer three times, then my audience will realize that the guy isn’t answering the question. I’ll have made my point, and I’ll move on to some other question.
I thank counsel for his thoughts and hang up the phone.
The next day, in my meeting with finance, we run through the list of open matters. When we get down to the “S’s,” I report that Smith will cost us something like $700K, and it’ll hit in Q3.
Making those predictions is part of my job. Why do so many outside lawyers refuse to help?
(Don’t tell me the outside lawyers are afraid that I’ll sue ‘em for malpractice. I gave this kind of advice hundreds of times when I worked at a firm, and no one ever sued me for malpractice. And everyone understands that crystal balls are cloudy; this would be a ridiculous malpractice case. And, most of all, our good outside lawyers are actually helpful: “I need a sense of what we’ll pay in this case: Is it more like $10,000, $100,000, or $1,000,000?”
“Figure this one for low six-figures, Mark.”
See? Just like a lawyer. It’s possible.)
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].