Biglaw, In-House Counsel, Litigators, Partner Issues

If You Love Arguing Appeals, Why Don't You Argue Some?

You’re the in-house lawyer; you pay the bills; you can do this. Right?

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Folks often ask me if there’s anything I did at a law firm that I now miss in my in-house role.

The truth is that there are a ton of things I miss. (That doesn’t mean that, overall, I regret having moved in-house. It just means that life involves trade-offs, and moving in-house, like everything else, has both advantages and disadvantages.)

What do I miss most about law firm life? Playing the good parts of the litigation game: I loved dismembering an expert witness at deposition and knowing that we’d never hear from the guy at trial. I loved arguing motions and, more than that, appeals (because the stakes on appeal were typically higher and the panel better prepared than a single judge hearing motions). I loved fretting about a legal issue for weeks, having an epiphany, and suddenly knowing how a client would escape a thorny problem. And I loved the camaraderie of a trial site and the excitement of awaiting a jury verdict.

So here’s today question (with the answer after the jump, of course): If you say you love arguing appeals, why don’t you argue some? Tell outside counsel that you appreciate the help he provided in the trial court and writing the appellate brief, but that you’re going to argue the appeal. You’re the in-house lawyer; you pay the bills; you can do this. If you want to argue appeals, why don’t you?

That’s a fair question, and I’ll admit that I’ve given some thought to stealing back the pieces of litigation that I formerly enjoyed so much. Why don’t I?

The first problem is finding available time. I do have a day job, which involves supervising litigation and potential litigation, coordinating with finance and business units, managing a team, and assorted other stuff. I couldn’t easily justify abandoning my day-to-day responsibilities to prepare for and participate in a long jury trial.

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But, you say, surely there are litigation-related tasks that you love and that don’t require huge time commitments. And you’re right. (You’re so clever.)

Of the available options, arguing appeals would be the prime thing to recapture: That’s a litigation-related task that I loved, and it wouldn’t necessarily require a huge time commitment. If I picked an appeal carefully — arguing, say, an appeal from the grant of a motion to dismiss, rather than an appeal from a judgment rendered after a month-long jury trial — I could surely learn the record and case law in less than a week of concentrated study, even if I’d played essentially no role in writing the briefs. If I really love arguing appeals, I could devote nights and weekends to preparation and sacrifice no time from my day job. (I did that often enough when I was at a firm; surely I haven’t lost the capacity for hard work.) So the supposed lack of time is a red herring: An in-house lawyer could argue certain appeals if he truly cared to.

That’s where the second problem comes up: I choose our outside appellate counsel. For appeals of any significance, we’re hiring very fine appellate advocates. I just don’t have the arrogance (or is it self-confidence?) to believe that my company would be noticeably better served if I argued an appeal rather than one of our outside counsel — say Connie Trela of Sidley Austin, Linda Coberly of Winston & Strawn, or Rick Werder of Quinn Emanuel. I’ve seen the written work those folks produce; I’ve observed two of them in action; they’re top-notch. Thus, there’s a chance my company would not benefit — and might in fact suffer — if I chose to argue appeals personally rather than to assign top-flight outside counsel to the task.

Finally, there’s one last problem with in-house counsel usurping the good opportunities that arise in litigation. If our outside counsel dutifully handle all the litigation-related tedium on our behalf — negotiating the search terms to be used for e-discovery, supervising the collection and production of documents, haggling with psychopaths about the adequacy of discovery responses or dates and locations of depositions — is it really fair for in-house counsel to snatch away one of the relatively rare opportunities to do the fun stuff? I know that we’re paying the bills and all that, but, when I was in private practice, I would have been both sorely disappointed and outraged if some in-house lawyer had stolen away an appellate argument from me. I would have quietly accepted my fate, of course, but I wouldn’t have been happy. Would it really be fair for me now to do that to our lawyers?

Call me a wimp (and I’m sure that some of you will), but I choose not to deprive outside counsel of doing the good stuff. I’ll be curious to hear from readers whether other in-house lawyers make the same decision.

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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 inhouse@abovethelaw.com.

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