Mark Herrmann

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.

Posts by Mark Herrmann

How do you think we pick lawyers to defend us in litigation?

Judging from some of the emails I get, this is the picture in your mind’s eye:

“Hey, boss, we just got sued in New York. We’ll have to defend ourselves.”

“Shoot! New York City! Do they have any lawyers there?”

“Damned if I know. Lemme grab the New York City phone directory and take a look.”

An hour later:

“Good news, boss. There’re a whole gaggle of lawyers in New York. I think we should hire Bigg & Mediocre.”

“Why’s that?”

“They have an 800 number, so we’ll save some money. And they have a whole bunch of lawyers; one of ‘em probably knows what this ‘RICO’ thing stands for. And their website is really fancy; you wouldn’t believe it.”

“Great! Call that 800 number and ask them to connect you to a litigator.”

If that’s what corporations are doing, then at least you know how to develop business . . . .

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Appellate practices are great.

For lawyers who enjoy thinking and writing, but don’t have much taste for the hand-to-hand combat of discovery, appellate practices are pure joy. Appellate advocates bask in the intelligence and majesty of the law, without having to do daily battle with psychopaths.

For big firms, appellate practices are the crown jewels of the litigation side of the shop: “We’ve argued cases in the Supreme Court!” “We participated (either on the merits or as amici) in ten percent of the Supreme Court’s docket last year!” Shout it to the heavens! What’s the implicit message?

“We’re doing these cases for free!”

Oh, Herrmann, you’re such a cynic. Surely the implicit message is: “We’re God’s gift to advocacy!”

It’s a marketer’s dream.

But one leading appellate lawyer recently told me that the Great Recession has hurt his practice in ways you wouldn’t expect. And I’m here to tell you that, although appellate practices done right can help a firm, appellate practices done wrong are dangerous things . . . .

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We all dream of a world in which collegiality matters.

Partners at law firms are . . . well . . . partners. They look out for each other. They build each other’s practices. They work for the common good.

Perhaps that firm exists. I wouldn’t know.

From my perch here — as the guy who left a Biglaw partnership for an in-house job, and on whose shoulder other Biglaw partners now routinely cry — the view is pretty ugly. (Perhaps my perspective is distorted because of an obvious bias: Partners happy with their firms don’t come wailing to me.) What I hear these days is grim: Guys are being de-equitized or made of counsel; they think they’re being underpaid; they’re concerned that they’ll be thrown under the bus if they ever lose a step.

Several recent partners’ laments prompted me to think about something that I’d never considered when I worked at a firm. (Maybe that’s because I’m one of those guys who was perfectly happy laboring for the common good. Or maybe it’s because I’m a moron.)

In any event, here’s today’s question: I want to wrestle effectively with my own law firm. I don’t want to be nasty; I just want to be sure that I have implicit power when I negotiate with the firm. I want the firm — of its own accord, without me saying a word — to treat me right. How do I wrestle my own law firm to the ground? How do I pin my partners?

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I’m proud to be an American. I’m ashamed to be an American. And I’m not sure what it means to be an American.

As you know, I’ve been living in London for the past two years. I’m beginning to feel like a local, but I’m still occasionally jolted by my American roots.

When have I felt proud to be an American in London? The first videotaped beheading of an American journalist by a jihadist with a British accent drew some attention over here. But I was dumbstruck to read this sentence in one of the local newspapers: “Scotland Yard warned the public that viewing, downloading or disseminating the video within the UK might constitute a criminal offence under terrorism legislation.”

Viewing the video might be a criminal offense??? Toto, I’m not in Kansas anymore.

In my mind’s eye, I see scores of college kids at Oxford and Cambridge, six drinks into the evening, saying: “Whoa! That dude got his head cut off?! We gotta Google that!”

And now they’ve committed criminal offenses?

Maybe that’s true over here in England, but I’m pretty sure we’d never stand for that in the United States. It makes me proud to be an American.

(I must say that the news of the second beheading of an American journalist dramatically changed the picture in my mind’s eye. Those college kids have now sobered up, and they’re heading off to enlist.)

So much for pride in being an American. Then that nine-year-old girl blew away her shooting instructor with an Uzi. . . .

double red triangle arrows Continue reading “On Beheadings, Shootings, And ‘The Book Of Mormon’”

For months, we talked to counsel about our prospects in the case. He was sanguine:

“There’s nothing to worry about here. The plaintiff put a huge number in its prayer for relief, but you can’t possibly lose that much. Plaintiff’s liability case is thin, and the damages are inflated. You’ll probably win. If you lose, you’d lose no more than $1 million on an average day. On the worst day known to man, you can’t even theoretically lose more than $5 million. I wouldn’t offer more than a couple hundred grand to settle.”

A few months before trial, we ask counsel to put some skin in the game: “It’ll be expensive to try this case, and you feel good about our prospects. We’d like you to propose an alternative fee agreement that aligns your interests with ours. We’d like to pay you less than your ordinary hourly rates in the months leading up to trial, but we’ll give you a success fee if we win. Please think about it, and let us know if you have any ideas.”

A couple of weeks pass, as counsel discusses the case with his firm’s “senior management.” When the alternative fee proposal arrives, the goalposts have miraculously moved! In the course of just two uneventful weeks, our prospects for success have changed entirely!

double red triangle arrows Continue reading “Mirabile Dictu! Alternative Fee Proposals That Move Goalposts!”

When you work at a law firm, you must actually solve problems.

If you’re paid to win a case, you must identify the route to victory and develop the facts that take you there. (“They don’t pay us $15 a minute to lose.”) If you’re arguing an appeal, you must anticipate every possible question and figure out a persuasive answer to it.

There’s no place to hide and no one to whom you can push hard issues.

Not so in a corporation: If an issue is insoluble, just send it to the law department! That puts the matter to rest, and you didn’t have to figure out the answer!

Remarkably, I’ve seen this solution proposed not just by folks who work in-house, but by outside counsel, too . . . .

double red triangle arrows Continue reading “If The Issue Is Too Hard, Just Send It To Law!”

First, thanks to Baker & McKenzie, DLA Piper, Latham & Watkins, and Ulmer & Berne, all of whom endured my “book talk” about The Curmudgeon’s Guide To Practicing Law when I was recently back in the States.

Second — and proof that my mind is navigating on its own — I recently paused to think about driverless cars.

I suppose that, if you lived (as I do) in a major city that may be road-testing driverless cars before January, you’d be curious about these vehicles, too. (You’d want to consider, for example, whether you should stay on the sidewalk, even if that means walking endlessly in a one-block circle for the rest of your life.)

And if you labored (as I do) in the insurance (or insurance brokerage) space, you’d be scratching your head about what might happen to your industry if billions of dollars of auto insurance premium vanished (or was spent by people other than drivers) overnight. Lawyers for insurers should be thinking about driverless cars.

So, too, should lawyers outside the insurance space. Do you do DWI defense work? Your practice area may not exist in ten years. Do you participate in automotive accident or product liability cases? The world may be about to shift under your feet.

And I’m just getting warmed up here. . . .

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I used to be smart.

I read cases. I ginned up clever distinctions. I examined witnesses and knew what the evidence said. I argued appeals. I wrote real, substantive articles.

I had interesting things to say about multidistrict litigation, class actions, and product liability defense.

I spoke at CLE classes — both to maintain my (and my firm’s) profile and because I had worthwhile things to say.

I coulda been a contender.

But that was then.

I’ve been in-house for nearly five years now, and I’ve become a fool. . . .

double red triangle arrows Continue reading “On In-House Self-Loathing: I Used To Be Smart!”

I must have reached a certain age.

Within the last month, three different people have contacted me to say that they’re approaching retirement, so it’s time to start serving on boards of directors. These folks came to me (of all people!) to network.

By keeping my ear so close to the ground, I’ve discovered the new, new thing. And you’re in luck — I’ll share it with you!

Everyone’s getting old and thinking about retirement.

Or maybe I’ve buried the lede. Maybe hordes of baby boomers are now thinking about finding a part-time job that pays good money and keeps you entertained after you’ve stopped working full-time.

That’s not a bad strategy, really. If you’re industrious, you could serve on four or five boards, carefully analyze the board materials before each meeting, monitor the companies’ fortunes, contribute insights and ask tough questions during the meetings, and follow up after meetings in pursuit of the corporate good.

On the other hand, if you’re less industrious, you could show up for a few board and committee meetings every year, enjoy cocktails and dinner with the boys, sit like a cardboard cutout during the meetings, and pocket a few hundred grand annually for your efforts, . . .

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I’ve never met you, but I assume that you’re incompetent.

I realize that sounds a bit harsh, but it’s time someone told you the truth.

Some people assume that strangers are competent. One of my colleagues in our Law Department said to me recently: “Outside counsel says we won’t have much liability in that case.”

I naturally asked, “Is he right?”

She was shocked: “He’s a partner at a well-respected firm. We hired him. I assume he’s competent.”

That got us to talking. My colleague gives strangers the benefit of the doubt; she assumes that people are competent until they prove otherwise. I’m exactly the opposite: When I meet you, my working assumption is that you’re inept. Over time, there’s a chance you’ll convince me that I’m wrong. (But probably not.)

Why do I assume that all new people I meet are incompetent?

No, that’s too easy. Here’s the better question: Why am I right to assume that everyone’s incompetent, and why is that a helpful way to go through life?

double red triangle arrows Continue reading “Overcoming The Presumption Of Incompetence”

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