3 Pieces Of Advice I Never Want To Give Again

Words of wisdom from Biglaw partner turned in-house counsel Mark Herrmann.

dartboard pen on target inside straightI’ve been practicing law for a long time.

Some stuff remains fascinating, but I’m getting tired of other things.

Today, I’m getting off my chest three pieces of advice I never want to give again. I’m tired of these three conversations; I don’t want to keep repeating myself.

Advice number one: Don’t bluff.

Everyone learned this, or should have learned it, within about ten minutes of having graduated from law school. If you say you’re going to sue unless the potential defendant sends you a check, and you don’t get a check, then you must sue.

If you say that you’re going to move to compel if the witness doesn’t answer the deposition question, and you don’t hear an answer, then you must move to compel.

If you say that $1,000,000 is your last and best offer, then you’d better not start bargaining in the $900,000’s.

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In the law business — and, indeed, in just about any business — credibility is awfully important. You can’t make idle threats.

That doesn’t mean that you can’t try to coerce people, or you can’t tell them that you’ll take action. It means you must phrase things carefully.

When you close your letter with these words, you’ve threatened a lawsuit: “If you do not stop using the copyrighted material before May 31, we will file a lawsuit to enforce our rights.” You set the terms when you put fingers to keyboard: Come June 1, it’s surrender or lawsuit.

If you in fact may not file a lawsuit, then don’t threaten one. Write: “If you do not stop using the copyrighted material promptly, then we will consider taking all appropriate action.”

Of course that’s weaker. But it’s not bluffing.

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And you can’t bluff. I’m tired of giving that advice.

(If I didn’t studiously avoid political issues in this column, I might wonder publicly how any law school graduate could bluff about a red line in the sands of the Middle East relating to the use of chemical weapons. But, since this is an apolitical column, I won’t type those words.) (Oops!)

So that’s the first piece of advice I’ve repeated way too often: Don’t bluff.

Advice number two: Don’t sue over tiny perceived slights or jokes made at your expense.

I know, I know: The former employee tweeted that your company is filled with dirtbags. It’s an outrage! How could he have said those things? Sue the bastard!

Look: No one reads that guy’s tweets. And the two people who read the tweets figured, “Oh, that’s a vindictive former employee burning bridges. What a fool.” No one cares.

But, if you file a lawsuit, tomorrow’s Daily Legal News will report that BigCo just sued a former employee for having tweeted. And the whole blogosphere will be up in arms that the company would be so heavy-handed. And the CEO will be asked about this on the next analysts’ call, and it will come up again at the annual meeting. That silly little tweet that drew no attention at all will soon be on the front page of The New York Times — as a result of your action, not the former employee’s.

You’re big. You can take it. Don’t sue over tiny slights.

In particular, don’t sue if someone insults you in a way that any reasonable person would think was funny. (Shoot! I have yet another example in mind here, but it’s again political — disparaging the other side of the aisle — and might offend my readers. Elie, come to my rescue! Read my mind and unload a liberal polemic about a Republican suing over funny stuff.)

If you sue over things that are funny, bloggers and journalists will take up the comedian’s cause. The world will say that you don’t have a sense of humor.

The world will be right.

Not only that: The joke will be repeated far more widely as a result of your having filed a lawsuit objecting to it. You’ll have magnified whatever harm the original joke might have caused.

Don’t be silly: If someone says something about you that’s insulting but funny, grin and bear it. Life’s tough.

Advice number three, primarily for in-house lawyers: End virtually every email with this sentence: “I recommend that we proceed . . . . Please let me know if you disagree.”

Executives need advice, not pablum, from in-house lawyers. (Similarly, senior in-house lawyers need advice, not pablum, from junior in-house lawyers.) If we have an issue, then identify it, solve it, and advise the executive how to proceed. That permits the executive to nod her head in agreement with your advice and to move ahead effortlessly.

Do not end your emails the way bad in-house lawyers do: “That’s where we stand. Thoughts?” Or: “Please let me know how you’d like to proceed.”

Those conclusions force the recipient to think. We don’t do that to our clients. If our clients want to think, we welcome that — but we don’t require it. In the likely event that our clients prefer not to think, we offer the easy route of simply going along with the course that we recommended. Give advice; don’t pose unsolved problems.

I recently mentioned to a geriatric psychologist (over dinner, not at a scheduled appointment) that I was tired of giving certain advice. She said, “Me, too.”

“Really? What advice are you tired of giving?”

“‘No one’s parents are perfect.’ And, ‘Forgive yourself; what you did wasn’t that bad.'”

There you have it: Legal advice, a whisper of politics, and psychiatric advice — all rolled into one.

Ain’t Above the Law grand?


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.