General Counsel, In-House Counsel

The In-House Debbie Downer

Delivering bad news: an unfortunate but important part of the job as in-house counsel.

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Debbie Downer (screenshot via NBC)

The day had finally arrived.

After several long years of back and forth, court battles, and some name calling, the trial court was finally set to weigh in on damages for a contract breach by one of our technology vendors.

As I walked into my first meeting of the day, the tension was palpable. Our CEO’s eyes were trained on his phone, waiting for word from our general counsel, who was in the courtroom. I could see visions of dollar signs dancing in our CFO’s eyes. And everyone else in the room followed suit and began to discuss what our hospital would do with the anticipated windfall.

“Would it be large enough to build a new hospital wing?” our medical director asked.

“Maybe it would support our year-end bonuses,” the human resources officer pondered.

“I at least hope it is enough to pay for our new technology vendor,” our chief technology officer joked, deflating much of the tension in the room.

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And then, our phones simultaneously let out the chime alert of a new e-mail from our general counsel. The court opted to award damages. They were big. Not quite new-hospital-wing big, but more than enough to pay for our new technology vendor.

The room erupted in cheers and high-fives. Our CFO leapt from his chair and quite literally bear-hugged our CEO. With one email, our normally reserved C-Suite had gone from uptight business class to a high school senior class celebrating a homecoming game win.

While the rest of my colleagues appeared ready to pop a bottle of champagne, I reread our general counsel’s e-mail, and immediately my heart sank. While our general counsel had correctly reported the outcome of the trial court’s decision, she had failed to temper exceptions with a warning the decision would likely be appealed given its size.

Not wanting the potential misinformation to leave the room, I knew it would be left to me rain on their proverbial parade with the news that the trial court’s ruling was not final and could be appealed.

I timed my moment, waiting for the hugs to stop and a bit of normalcy to return to our meeting, before I chimed in.

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“I hate to be the Debbie Downer in the room, but I just want to clarify this morning’s ruling was only one win on a potentially longer road. Our vendor could opt to appeal the ruling, which could easily kick this can down the road another six or twelve months.”

Any sense of joy in the room immediately evaporated. My CFO shot a stare at me that I would imagine is only used when in witness of someone kicking a puppy. The room was solemn.

Perhaps sensing I was likely right, our CEO regained control of the room and proceeded through the morning agenda with little more mention of the ruling.

Later that afternoon, our general counsel and I met to discuss the trial court’s ruling and our next steps. As I entered her office, from a read of her facial expressions alone I knew what many of the experienced trial attorneys reading this post already know: the vendor left the trial court, walked over to the clerk’s office, and filed their appeal.

As in-house counsel, I can assure you it brought me no joy in deflating the room earlier in the day when they were mid-celebration. But I knew that was part of my job.

After all, what’s a worse price to pay? A sideways glance from your CFO, or the hospital system celebrating new bonuses that are dependent upon a court decision that, thanks to an appeal, may be many more months in the making….

Stephen R. Williams is in-house counsel with a multi-facility hospital network in the Midwest. His column focuses on a little talked about area of the in-house life, management. You can reach Stephen at stephenwilliamsjd@gmail.com.

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