What's Luck Got To Do With It?

Former Biglaw partner and senior in-house lawyer Mark Herrmann reveals the secret of his success.

A decade ago, a guy called to interview me for some book that claimed to profile prominent people. You know: “1000 Most Influential People In America,” or some such thing. (Don’t be impressed. The book offered you a “basic” listing for free. But, for a mere $999.95, you could buy an expanded entry in the book, giving you more words with which to extol your virtues! I don’t think this outfit made its money selling books.)

In any event, the guy asked me to reveal the secret of my success. I, of course, immediately answered, “Luck.”

“That’s funny,” he said. “‘Luck’ is often the first word that I hear from lawyers, and I rarely hear it from people in other fields.”

That comment has obviously been eating at me for a while, because today — ten or more years later — I’m returning to the subject.

Perhaps litigators are unusually sensitive to luck. After all, courts assign judges to cases by random chance. The result of a random draw is almost the definition of luck. When my case is heading to the court of appeals, I can draw judges Attila, Vlad, and Robespierre. I’m in luck! I can’t lose this case!

Or I could draw judges Lenin, Marx, and Engels. I’m toast. I couldn’t hope to win on my best day.

This has nothing to do with me, of course, and little to do with the justice of my client’s cause. It’s just luck, plain and simple.

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At the trial court level, I can draw a judge who’s notoriously pro-plaintiff or one who’s notoriously pro-defense. Or, for that matter, I can draw a judge who’s notoriously pro-settlement. That fact — literally, the luck of the draw — can dictate both how I’ll spend the next couple of years and how my client will perceive the quality of my work.

When we show up for trial, all of the potential jurors can fit the profile of the ideal juror identified by our jury expert — a single mother, between specified ages, of a specified race, who graduated from college, was briefly treated for depression, started and quit smoking cigarettes, and was once a defendant in a car crash case. (Or whatever.) Eureka! Settlement talks are over!

Or the entire venire can be the opposite. Where’s our checkbook?

But luck doesn’t influence only litigators’ lives. It affects all lawyers in countless ways.

You have a great client, giving you a few million dollars’ worth of business every year. The general counsel retires, and the new general counsel decides to send all corporate business to his former firm.

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You just went from champ to chump in a heartbeat.

You have another wonderful client, keeping you gainfully employed for years. And a larger corporation acquires your client, sending all of its work to the acquirer’s outside law firm.

Tough luck (with the emphasis on luck).

You join a thriving, prosperous law firm as an associate. The law firm — not you personally — falters over the course of the next ten years, so that the firm no longer exists (or has no room in the partnership) when your opportunity for partnership should have come knocking.

Or the firm still exists, but the legal market changed over time. Some other law firm — not yours — commoditized the field in which you practice; work that once commanded premium rates now bears only routine rates. There’s no room in the partnership for someone whose practice is no longer profitable.

Or maybe you avoid both of those problems: You choose a firm that does indeed prosper over time, and your line of work is intensely specialized, so it can’t be commoditized. But Congress passes a new law that wipes out your field of expertise.

Luck happens.

After watching luck destroy your career at a firm, you decide to move in-house.

You join a financial services firm.

In 2007.

Or you join a well-respected technology firm — one that specializes in, say, 8-track tape or pager technology. Or the firm specializes in traditional computer technology, just as everyone is moving to the cloud.

Whatever.

I’m not saying that talent doesn’t matter. I’m convinced that truly gifted lawyers are more likely to succeed than inept ones. But that last sentence leaves room for exceptions at both ends; incompetent lawyers occasionally stumble into lucrative practices (and other forms of success), and gifted folks sometimes fail for reasons beyond their control.

What’s luck got to do with it? Perhaps more than we’d care to admit.


Mark Herrmann is Vice President and Deputy General Counsel – Litigation and Employment 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.