In-House Counsel, Litigators

In Praise Of Compulsive Nutcases

In-house columnist Mark Herrmann asks: Why do (serious, sophisticated, top-notch) litigators actually do things right, while the rest of the world seemingly doesn't care about deadlines or accuracy?

By  
on

When I worked at a law firm, clients often frustrated me.

(Film at 11.)

Once, for example, we asked a client to deliver a list containing the names of the (few thousand) members of a class for us to use at a settlement hearing. We told the client that the list was very important; we needed it before the specified deadline, and the list had to be accurate.

The client seemed to understand those words.

Just before the deadline, the client told us that other work had gotten in the way, and the client could not provide the list on time.

Red-faced, we went to court for an extension.

Before the new deadline arrived, the client gave us the list. We eyeballed it, and it looked a lot like a list.

Sponsored

We submitted it to court. The court approved the settlement, relying on the list.

A couple of weeks later, the client said that it realized it had omitted a couple hundred names from the list and sent us a new list. We asked the client if this was an honest-to-God accurate list; the client said it was. Even more red-faced, we submitted the new list to the court. The court entered a new order, relying on the new list.

A couple of weeks later, the client told us that a few of the names on the revised list didn’t actually belong there, and a few other names did.

Yeah, yeah: I’m a fool ever to believe that anyone will actually do — on time and right — the things for which they’re responsible.

But why do (serious, sophisticated, top-notch) litigators actually do things right, while the rest of the world seemingly doesn’t care about deadlines or accuracy?

Sponsored

Here’s my thesis: Litigators know that every word they write will be scrutinized by a motivated opponent within a matter of weeks. That opponent will revel in your errors (if you made any). That opponent will gleefully accuse you of having lied — even if you haven’t lied. In that environment, it’s wise not to make too many mistakes; you’ll pay a price for your glitches, and you’ll pay that price almost instantly.

Why are clients (generally) so frustrating?

Because they don’t live in that environment. If a business person agrees to a crappy contract, the parties may live happily under that agreement for years; no one will notice the many errors unless the parties come to blows and, for 99 out of 100 contracts, that never happens. Who cares if the contract was no good?

No one will notice the auditors’ mistakes unless the company restates its financials or goes bankrupt. How often does that happen, anyway? Once in a lifetime? Go ahead — do approximate audits to your heart’s content!

(For that matter, as we learned in Florida in the year 2000, we’ve been doing approximate presidential elections for about 250 years now.)

If an engineer screws up designing the gadgets that protect a building against an earthquake, no one will ever know — unless there’s an earthquake. And how often does that happen, anyway? There might not be a sufficiently violent earthquake to reveal the engineer’s errors for decades; the engineer may no longer be alive, and no one will blame his heirs for the error.

So, too, with almost every endeavor known to man. Virtually no one lives in an environment where errors are immediately and publicly exposed. Maybe rocket scientists: We know when a spacecraft blows up on lift-off. And maybe a very few others.

For the most part, however, it is litigators alone who live in a world in which work is instantly and relentlessly criticized. Young lawyers may not realize that compulsive nutcases are best suited for a career in litigation, but (under the tutelage of good lawyers) the youngsters will quickly realize that truth. Folks who are not compulsive nutcases will naturally tend to leave the field, which is probably the right choice for them. Only those who excel at the compulsive-nutcase gauntlet will find success and happiness as a litigator.

But that implies what I suggested in my lede: Clients (and the world generally) will constantly frustrate good litigators. Good litigators are striving to do things right — really right. That’s an uncommon trait. For the rest of the world, “close enough for government work” will do.

Live long, fellow litigators, and be happy! Litigation can be a great career — “an intellectual feast” populated by an endless cast of ever-changing characters. A career in litigation can challenge you, and entertain you, and pay the mortgage and send the kids to college all at the same time!

But watch your clients closely, because you probably care far more about quality than they do.

And calm down, for heaven’s sake. Clients aren’t typically evil; they’re just mortal. And, unlike you, most mortals are not compulsive nutcases; their livelihoods don’t demand it.

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.

Topics

, , , , ,