Folks often ask me if there’s anything I did at a law firm that I now miss in my in-house role.
The truth is that there are a ton of things I miss. (That doesn’t mean that, overall, I regret having moved in-house. It just means that life involves trade-offs, and moving in-house, like everything else, has both advantages and disadvantages.)
What do I miss most about law firm life? Playing the good parts of the litigation game: I loved dismembering an expert witness at deposition and knowing that we’d never hear from the guy at trial. I loved arguing motions and, more than that, appeals (because the stakes on appeal were typically higher and the panel better prepared than a single judge hearing motions). I loved fretting about a legal issue for weeks, having an epiphany, and suddenly knowing how a client would escape a thorny problem. And I loved the camaraderie of a trial site and the excitement of awaiting a jury verdict.
So here’s today question (with the answer after the jump, of course): If you say you love arguing appeals, why don’t you argue some? Tell outside counsel that you appreciate the help he provided in the trial court and writing the appellate brief, but that you’re going to argue the appeal. You’re the in-house lawyer; you pay the bills; you can do this. If you want to argue appeals, why don’t you?
I took the train to Paris recently. (Sorry — I can’t help myself. I just love typing those words.)
That gave me an uninterrupted two hours to edit a document on the way to Paris and another uninterrupted two hours to edit a document on the way home.
The experiences couldn’t have been more different.
What’s odd is that it wasn’t the quality of the drafts that made the experiences different for me (the editor), but rather the quality of the reactions that I anticipated receiving from the authors.
How can that be? How can an editor enjoy revising one document and loathe revising another based solely on the anticipated responses to the edits? And what lessons might that teach the author (the person being edited)?
Sometimes, the conventional wisdom is dangerously wrong.
Today’s conventional wisdom is this: “Never do any direct examination of your own witnesses at [discovery] depositions. These witnesses are under your control. If opposing counsel tries to use the deposition testimony against you in a motion, you’ll just get an affidavit from your witness and fix the problem. If opposing counsel tries to use the bad testimony against you at trial, you’ll just call the witness live at trial, and you’ll fix any issues with the testimony there. Doing direct examination during the deposition just gives opposing counsel advance notice of the way you’ll fix the testimony later.”
(Some folks will admit to an exception or two to this rule. If the witness said “yes” and meant “no,” then maybe you have to fix that on the record at the deposition. If the witness is 95 years old and has a bad cough, then maybe you should do a direct examination during the deposition. But those exceptions are typically few and far between.)
If you haven’t yet heard this conventional wisdom, then either (1) you’re not a litigator or (2) you haven’t yet defended your first deposition of a person under your control.
I’m here today to tell you why this conventional wisdom is often wrong. . . .
I wrote several weeks ago about why I should waste time — why I should attend some meetings at which I’m not really necessary. I should do this to learn what folks on my team are doing on a daily basis, to have a chance to work one-on-one with more people who ultimately report up to me, and to improve employee job satisfaction by having a manager show interest in employees’ work.
To my in-house eye, that’s not “wasted” time; it’s “invested” time — time that improves our collective well-being, even though it doesn’t result in my having completed a specific task that the organization needs accomplished.
As I think about it, I see an awful lot of these things in-house that I would never have seen at a law firm. For example, several weeks ago, we decided to invite a junior in-house lawyer to attend meetings of our “Corporate Ethics Committee,” at which a fairly senior group addresses, among other things, important issues that arise through our corporation’s anonymous ethics hotline. We didn’t invite the junior lawyer because his or her attendance was important to the committee’s deliberations; rather, we thought that attending the committee meetings would provide helpful training and give the junior lawyer more exposure to senior people in the department.
At a law firm, everyone would spit in your eye if you suggested that a junior person should unnecessarily attend a meeting simply for the sake of training and exposure: This would constitute either over-billing the client or wasting potentially billable hours. . . .
First things first: I’m heading back to the States for a couple of weeks in October, and Troutman Sanders and Miller Canfield have already asked me to take advantage of that visit by giving my “book talk” about The Curmudgeon’s Guide at those firms. That means I’ll be blowing the dust off my speaking notes and reminding myself what I say. I might as well get some bang for the dust; if you’d like me to give the book talk at your firm (or school) in early October, please let me know.
Second things second: Citi, Wells Fargo, and PeerMonitor recently released their analyses of law firm performance to date in 2013, and the pundits were all a-twitter. (Well, all a-blogger, anyway, but the pundits are so retro.)
Here’s one question the pundits posed: Why is law firm headcount up when law firms are suffering from decreased demand for their services?
That’s a pretty good question, and there’s no obvious explanation. Being a curious fellow, I used a clever technique to get to the bottom of this: I asked.
After the jump, I explain why firms are hiring more lawyers during a time of weak demand (as explained by senior partners at a couple of firms) and note an overlooked aspect of 2012 law firm performance that may affect results in 2013 . . . .
I went through my first 360-degree review — where those above, beside, and beneath you in the organization all anonymously evaluate your performance — two years ago. Never one to shy away from abject public self-humiliation, I shared the result of that review in this column. I revealed that my biggest “blind spot” two years ago was in the area of celebrating the accomplishments of folks on my team: I thought I was pretty good on that score; those who worked under my supervision begged to differ.
I told you that I would fix that problem, and I did. During this year’s 360-degree review, my score for celebrating our accomplishments was a solid 4.0 — 0.9 better than two years ago, and precisely how I’d graded myself this time around. It had actually been pretty easy to solve this problem: I distributed emails celebrating our victories more often and to wider audiences; I stopped by folks’ desks to congratulate them on wins; and I was otherwise more sensitive to letting the world know when my merry gang of litigators did nice work.
Now that I’ve solved one management problem, however, another one naturally reared its ugly head during this year’s 360-degree review . . . .
I’m closing in on 250 columns at Above the Law, devoting many of them to mistakes that I’ve recently witnessed (or heard about) (or, I should say to protect the privilege, simply ginned up out of whole cloth).
Remarkably, I’ve not yet written about an obvious error that occurs regularly: If you say that you will communicate with someone on a certain date, communicate with the person on that date.
Think for a minute about how often people screw this up, both in-house and at law firms.
In-house, some crisis arises. You take the helm. You send an email to the relevant folks in the organization saying, “I’ll get to the bottom of this, and you’ll know the answer by the close of business my time tonight.”
The close of business comes and goes, and what happens?
I thought about titling this column “Litigation Aphorisms,” but who the heck would have read it?
So I went instead with the first of three critical things you should know about litigation, all of which I learned from Neil Falconer when I practiced at the 20-lawyer firm of Steinhart & Falconer in San Francisco back in the 1980s. (I also dedicated The Curmudgeon’s Guide to Neil. He wasn’t a “mentor”; he just accidentally taught young lawyers by osmosis what it meant to be a lawyer.)
Neil’s first aphorism was this: “Never tell a small child not to stick peanuts up his nose.”
Why does that matter?
Or maybe I should start with a more basic question: What the heck does that mean?
Why do you send your emails about our big litigation victories to everyone in the C-Suite, Finance, the Business Leaders, and the rest of the world, with a copy to me, but you send your emails about our big litigation defeats to me alone?
Why do law firm promotional materials always describe recent cases at excruciating length and never briefly offer practical solutions? I might actually read something titled, for example, “Three Policies That You Must Revise Now That The Defense Of Marriage Act Has Been Held Unconstitutional.” (If I received that email, I must have overlooked it.)
Why does your email ask if I’m free at a certain date and time for a meeting without telling me “free for what”? Even if I’m otherwise booked or theoretically on vacation, I’m completely free for the CEO and the Board of Directors. On the other hand, I’m never free for the guy from IT who wants to drone on endlessly about user specifications for the new BPOS platform.
What’s the difference between an ATL commenter and an ATL correspondent?
A commenter writes, “Screw you, Herrmann, and the horse you rode in on. And your wife, and your kids. And your grandma. And your cat.”
A correspondent writes a long, thoughtful email, like the one I received from a reader in Rochester, New York, who read my column, “On Tweedledee And Tweedledum, Esq.,” and accused me overvaluing good writing:
“In litigation, while writing is important, it is not paramount. Just as, or more, important are analyzing law and facts and knowing what claims or defenses to assert. Then developing a strategy for discovery – knowing what documents to ask for, where to search, what questions to ask at deposition – none of which requires much writing at all and certainly not great writing skill. Developing the facts – and developing them in a way to help and not harm your case – is often much more important than writing a great brief. Knowing what issues to dispute in discovery and which to cede is important. Negotiating skills are important. Legal research skills are significant. Then, if a case goes to trial, entirely different skills are needed. Using an example from your column, because a lawyer writes an excellent brief does not mean they know how to properly prepare a witness or question a witness. . . . Someone can write with great style and flair but use bad analysis, miss significant facts or fail to find an important case.”
I have two reactions: First, thanks for writing. And, second, maybe yes and maybe no . . .
Hey, have you read Above the Law for like one single minute in the past month? If so, you probably know that we’re having this big blogger conference on March 14th at the Yale Club. Yeah, the Yale Club. You’ll be able to recognize me: I’ll be the only big… blogger guy surreptitiously holding a can of crimson spray-paint.
Speaking of coming, you should come. We’ve got CLE and all that. Click here to buy tickets to get CLE credit for listening to bloggers scream about stuff on the internet.
To refresh your memory, details on the panel that I’m moderating — almost entirely sober, mind you — follow.
My panel is called Blogs as Agents of Change, and we’re going to talk about whether all of these spilled pixels are actually making a difference. You know my view… just ask Lawrence Mitchell, but here are the panelists:
So you spent a considerable amount of time courting, selling and maybe even doing some friendly stalking of that attractive lateral partner candidate with a sizable book. After he or she ignored your emails and didn’t return your calls, a few weeks go by and you read a press release in the legal media announcing the recent move to a competing firm.
Rats. Another one got away from you. You cringe when you consider how much time was spent in meetings that did not bear fruit. Your heart aches when recall how you were led to believe this was a marriage made in heaven.
You have been rejected.
The sting of rejection is painful, even for fancy law firms. But you need to find a way that you can turn this disappointment into a legitimate learning experience.
No, this isn’t a pre-party before we come back next fall for the real thing. This IS the real thing. Quinn Emanuel is pushing the envelope on recruiting. The party is now. This is when you meet the partners and associates face to face. This is when we begin the dance that could land you an offer for your second summer BEFORE school starts in the fall.
First: You come to the party. Second: If you like us, you send your resume after June 1, 2014. Third: If we like each other, you get an offer.
We’re not waiting for fall. We’re not doing the twenty minute thing. This party is the real thing!
We hope you’ll join us, and look forward to meeting you.
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