Biglaw, In-House Counsel

On Succinct Advice

What type of lawyer are you -- someone who underkills a project, or someone who overkills?

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dartboard pen inside straight“My advice is succinct,” my lunch dates tells me. “I cut right to the chase, and I give the client what it needs in just two pages. Then I send a draft of that advice to other people in the firm, and they say it’s not what they need. ‘This is terrible. We’ll have to rewrite the whole thing. Don’t worry about it; we’ll do it here.’

“My two-page memo gets turned into 14 pages. They start with the main conclusion, which is just what I said in two pages. And then they lard the memo up with citations. And then they start with alternatives: ‘If this, then that.’ And then they rule out all the alternatives, and come back around to what I concluded in the first place. What fools! They’re just churning the bills! But it makes it hard for me to sell what I do within the firm.”

Maybe.

Maybe not.

It’s certainly true that I’ve seen overkill. The memo should have been a few pages long, and it ran on forever. That’s a sin.

But I’ve also seen the opposite. You ask someone for a contract interpretation, and they cite one case and draw a conclusion.

You give the same assignment to a real lawyer, and it turns out it’s a little more complex. There are several different cases pointing in different directions. And, if you look closely enough, it turns out that the negotiating history might be relevant. The real lawyer thus interviews the three people on your side involved in negotiating the contract, and reviews their notes of conversations, and gives a fully informed opinion.

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One approach is basically costless. It gives you a conclusion, and it gets you to the finish line. (And, depending on the lawyer, it may or may not be correct.)

The other approach can be quite expensive. But if the issue is going to be the subject of massive litigation, then it’s worthwhile to learn what the real answer is before the case is filed.

The question is what you need. Do you need down and dirty, since no one is going to challenge the conclusion? Or do you need to know the real answer, because there’s going to be a fight?

It also depends on what you can afford to spend. If you can’t afford the real answer, then you might settle for a fake.

But it also requires — and this may be the key — that the lawyer doing the work can tell the difference.

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The lawyer who underkills a project — producing a two-page memo where 20 were required — may not know what good legal work looks like. (She may, of course. And she may have proved that by doing thorough legal work in the past. But two pages and no deep thought may also be all that she’s capable of.)

The lawyer who overkills a project — producing a 20-page memo where two were required — has a different issue. You’re comfortable that this person can beat the living daylights out of a legal issue. But are you comfortable that that person has the self-restraint, and confidence, to produce the lesser product when that’s all that’s needed?

As for my lunch date, I don’t know what to think.

Maybe he doesn’t know what good looks like, and he’s in fact not thinking about issues hard enough.

Maybe he doesn’t have the capacity to think hard enough, and he couldn’t do it if he tried.

Or maybe, when the situation calls for it, this person thinks carefully about all the issues and produces work product that shows it.

For those guilty of underkill: Are you sure you know what a complete examination of the issues looks like?

For those guilty of overkill: You have the raw skills, and you plainly know how to think an issue through completely. But do you have the judgment (and the client’s agreement) to produce less than perfection when that’s what the occasion requires?

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now responsible for litigation and employment matters at a large international company. 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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