Mark Herrmann

Posts by Mark Herrmann

Inside Straight: The Annoying Ramblings Of An Uber Douche

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First things first: Thank you.

In response to my solicitation a couple of weeks ago, my “commenters” and correspondents provided ample material for the last chapter of my forthcoming book, Inside Straight. The “commenters,” I must say, will test the mettle of whomever ABA Publishing assigns to edit the manuscript. I asked my readers to propose a subtitle for the book, and I promised to re-print in the book the best (and worst) of the suggestions. To my eye, Inside Straight: The Annoying Ramblings of an Uber Douche and Inside Straight: But Outside? Pretty Into Dudes both made the cut. But I’m easy; the unfortunate editor at the ABA will have his hands full.

(Why seek to savage myself in public? Because roughly 97 percent of visitors to Above the Law never bother to look at the comments. I’d like the book to reveal to those typical readers the odd relationship that bloggers can have with their blaudience. That relationship is multifaceted; people should understand both the vitriol of the commenters and the wisdom of crowds.)

Thanks also to my correspondents (including one New York Times bestselling author, who’s also a lawyer) who provided some additional “advance praise” that we’ve posted at the pre-publication web page offering Inside Straight for sale.

But enough of that. Let’s get back to business: What annoying ramblings can the uber douche inflict on readers today? Business meetings! We have them all the time, and people misuse them. We meet with outsiders whom we’re trying to impress, and we then cross-examine each other and reveal that we’re not very impressive at all. We meet to solicit help from business folks, and the lawyers blather on about legal technicalities that neither interest nor inform anyone. How can we fix this?

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Inside Straight: The Ten Rules For Writing Articles To Generate Business

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I mentioned last week that I recently moderated a panel of in-house lawyers at Schnader Harrison’s annual retreat. Always happy to share, I’m gathering here my existing thoughts on writing articles to develop legal business plus some new ideas suggested by the panelists. And, because handy lists get clipped and saved, I’m putting those thoughts into a list.

What are the ten rules for writing an article that will generate legal business for the author?

1. Write about a substantive issue, not a procedural one.

No one in the history of the world has retained a lawyer because the lawyer was the world’s greatest authority on Federal Rule of Evidence 403 or how to remove an action to federal court. People hire 10b-5 lawyers, not removal lawyers. If you’re writing to generate business, write on a substantive topic, not a procedural one.

2. Write about a niche area of the law.

If you write an article about some clever provision that a real estate lawyer should put in a lease, potential clients will read your article, send your article to their existing real estate lawyers, and ask the incumbents whether the incumbents have considered this idea and are able to put it to use. Your article thus educated the world and may have generated business for incumbent counsel, but it didn’t generate any business for you.

Niches are better. If you write about a niche area of the law — I’ve previously suggested that Colorado escheat law is wide open — the client’s incumbent firm won’t be able to provide the service that you’ve written about. If you’re writing to generate business, you don’t want to just suggest ideas that other lawyers can easily use.

3. . . .

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Inside Straight: How Do You Displace A Competent Incumbent?

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I gave my “book talk” about The Curmudgeon’s Guide to Practicing Law at Schnader Harrison’s annual retreat last Saturday and then had the opportunity to moderate a panel of six (counting me) in-house lawyers. Three of the gang were from QVC, one from Endo Pharmaceuticals, and one from the Graham Company. Being a rabble-rouser at heart, I started the discussion by posing the question that I often considered during my time as an outside lawyer: How can a law firm that wants new business displace a competent incumbent firm?

My co-panelists were quite good, but I must say that their natural instinct when confronted with this question was to evade. Each panelist started by saying something that was not quite responsive to the question. Only after some follow-up questions did our panel finally tell the audience how to displace a competent incumbent.

Let me start with the evasions, saving the real answers for the end . . .

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Inside Straight: No More Projects Named ‘Death Star’ Or ‘Piranha’!

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A couple of decades ago, a friend was defending a case that involved a corporate entity named “LHIW, Inc.” The case seemed defensible for a while. Then, during a deposition, opposing counsel thought to ask a witness what the heck “LHIW, Inc.,” stood for.

Suffice it to say that it’s tough to defend a transaction that involves a shell company named “Let’s Hope It Works, Inc.”

Ten years ago, a company was spinning off the piece of its business that was saddled with product liability exposure. The transaction would create one new, clean company and one tainted company that would spend its days defending itself or paying claims over time. Did the internal corporate documents really have to refer to the two new entities as “GoodCo” and “CrapCo”?

Why did I flash back to those memories? Because I recently ran across a situation where someone cleverly named an investment vehicle “SNP, Inc.” That was fine and good until someone thought to ask what “SNP, Inc.,” stood for. Naturally: “Should Not Participate, Inc.”

The more things change, the more they stay the same. But I have a proposal on this front . . .

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Inside Straight: Provide ‘Advance Praise’ For ‘Inside Straight — The Book’!

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I’ve relented.

Under extreme pressure from all quarters — well, my wife thought it was a good idea, anyway — I’ve committed to publish a compendium of “Inside Straight” columns in the form of a book. ABA Publishing tells me that, in June, you’ll be able to hold in your hands Inside Straight: [followed by a clever subtitle]! (This obviously remains a work in progress.)

I have two items of good news about the forthcoming book and two requests for your help. First, the good news: The book will not simply be about me; it will also be about you! In addition to reproducing a collection of my columns, the book will include assorted “comments” that you, my readers, have appended to my posts. The book will thus answer many of your burning questions: Do I read the comments? Will I reproduce in the book the nastiest of the comments? (That raises the obvious derivative issue: Am I a self-loathing lunatic?) When I choose which comments to publish in the book, will “Bonobo Bro” make the cut? Will “Concerned Pastafarian”? Find out the answers to those questions — and more! — in Inside Straight: The Book!

The other good news is that David Lat has agreed to contribute a foreword to the book. Whatever you think of the quality of my writing, you know that Lat can write. The foreword alone is worth the entire price of the book!

So much for the good news; now, the requests for your help . . .

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Inside Straight: Creating A Unifying Mind

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For every matter that we handle, we need one “unifying mind.” We need one person at the helm; that person must either personally know everything that’s happening in the matter or, at a minimum, know where the knowledge lies. (Extraordinary cases may be beyond the capacity of a single unifying mind and may require two or more. But those situations are exceptional, and they pose challenges beyond what I’m thinking about today.)

The unifying mind might be found anywhere in the hierarchy, depending on the type of matter involved. At a law firm, the unifying mind can be a partner, if the matter is large and the partner a hands-on type. Or the unifying mind can be an associate charged with monitoring and tracking all events. But everyone on the team should know who’s at the helm, so everyone knows the person who should receive copies of correspondence, alerts about upcoming events, and reports about how things are going.

At an in-house law department, we, too, must have a unifying mind for every matter. In the litigation world, a corporation may have several line lawyers whose job is to supervise cases on a day-to-day basis. The line lawyer primarily responsible for overseeing a particular case should typically serve as the unifying mind for that matter. Outside counsel should communicate with that person, and everyone in-house should know that’s the lawyer to call if they need detailed information about a lawsuit.

That’s all fine in theory, but two things often screw this up in practice. What two things?

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Inside Straight: Doing Business In Corrupt Places

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Suppose you’re doing business in a country that is perceived as being corrupt. For example, Myanmar, North Korea, and Somalia take the bottom three slots in the 2010 Corruption Perceptions Index.

Okay, let me rephrase that: Suppose you’re doing business in a country where it’s actually lawful to do business, but the country is perceived as being corrupt. Cambodia or Zimbabwe might fit the bill. (On reflection, it strikes me that my own company may actually do business in those two places. If we do, then I, naturally, love the judicial systems in Cambodia and Zimbabwe. If my company is ever in court in one of those places, please don’t hold this column against us. It’s just that terribly unfair perception of corruption that gives you guys a bad name.)

How do you conduct business there?

Very carefully, of course.

As a matter of compliance, your company must implement policies that forbid payments that are customary in the corrupt place, but forbidden by U.S. law. And your company must enforce those policies, perhaps by having a regional group that approves third parties with whom you do business or otherwise strives to comply with the law.

But that’s the front end. What do you do at the back end, if you find yourself in a dispute in the corrupt place?

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Inside Straight: An Open Letter To The University Of Chicago Law School

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Dear University of Chicago Law School Admissions Committee:

I write to advise you that you can remove my name from the waitlist for admission to the University of Chicago Law School.

I deduce that my application has posed an extraordinarily challenging decision for you. After all, I applied for admission in the fall of 1978, was placed on the wait list some time that winter, and am still awaiting your final decision. I certainly appreciate the effort that you have invested in considering my application during the intervening decades.

As you might imagine, this has not been an easy thirty years for me, either. Every day, through the changing seasons and changing seasons of my life, I have approached the mailbox with trepidation, thinking that I might finally experience the exhilaration of acceptance or the agony of rejection. But it was not to be; I never heard a word. I’ve decided it’s time to spare you the effort of further deliberation.

I’ve thought about you each fall and winter, as you’ve surely re-opened and dusted off my typewritten application and compared it to the new e-submissions that you probably receive today. How do my accomplishments from the late 1970s compare to the accomplishments of my current competitors? I’m certain, for example, that grade inflation has worked to my detriment, as my grades are stuck at the old levels and younger folks get higher grades with each passing year. It’s just not fair.

And what about external events?

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Inside Straight: When You Do Not Ask For A Better Draft

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I occasionally take advantage of my little megaphone here at Above the Law to vent about poor quality drafts. When I do, “commenters” or correspondents routinely suggest that I’m tilting at windmills: “If you receive a poor quality draft, send it back to the person who wrote it, and tell that person to make it better. There’s no reason why you, Mark, should be saddled with improving the thing.”

Wrong, wrong, and wrong again!

I’m absolutely saddled with improving the thing. It often makes no sense at all to return a bad draft to the author and ask for a better draft. In fact, I submit that there are only two situations in which it does make sense to ask the original author to improve a draft . . .

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Inside Straight: Knowing That Law Wins

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Someone in the company is going rogue: The person proposes to do something brazenly illegal, or slightly illegal, or perfectly legal but sufficiently immoral that the conduct would turn any reasonable person’s stomach. The rogue is not listening to logic. The person is ignoring everything that your local in-house lawyer is saying.

When the local lawyer calls the headquarters law department for help, these are the words that headquarters must be able to speak: “Local lawyer, you win. This is not a close call; we should not be doing this. In this situation, I guarantee you that you hold the trump card. Who do you need to make a call to solve your problem? The general counsel? The chief financial officer? The CEO? Someone else? We will cause that call to be made in a heartbeat. What do you need?”

Is that what people mean when they talk about “tone at the top”?

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