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

Riddle me this:

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.

Why do law firms. . .

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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 . . .

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When I moved last year from Chicago to London, my morning workout changed along with my postal code: Instead of lifting weights and jogging on alternate days, I now jog every morning, plodding through my lap around Regent’s Park. Either the new exercise regime or my appetite for British food has affected me: Although I hadn’t realized it, I’ve lost a fair amount of weight this past year. (I started at only 5’10″ and maybe 175 lbs; losing 20 pounds wasn’t necessarily a good thing.)

Here’s what I noticed when my wife and I recently visited Chicago: When you’re in your twenties and lose weight, your friends say, “Hey, Mark! You’re looking good!” When you’re in your fifties and lose weight, your friends whisper to your wife: “Pssst: Is Mark okay?”

Anyway, our son, Jeremy (you remember him), recently survived his medical school boards and visited us in London for a while. He joined me for a few of my morning jaunts. I sprinted; he jogged. We both went the same pace.

All of this prompted me to reflect on the differences between the States and the Kingdom. I’ve previously noted that the United States cleans the UK’s clock in a couple of areas, such as dryer and traffic-light technology. But the reverse is also true: The Kingdom beats the States in a couple of noteworthy ways….

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Nothing you can say or do can cause me to retain you.

That’s terribly disheartening for folks who believe that business development should work, but it’s awfully close to being true.

Why is there nothing you can say that will cause me to hire you?

Because long experience (and the rules of arithmetic) have taught me that the average lawyer is average. So about 68 percent of all lawyers are within one standard deviation from the mean, and about 95 percent are within two standard deviations. And that’s roughly the mark that I’m aiming for when I hire outside counsel: Good lawyers. Really good lawyers. Maybe two standard deviations from the mean.

This means that if I picked my outside counsel randomly, I’d be disappointed 19 times out of 20. I don’t like those odds, so I don’t pick outside counsel randomly.

And if I picked my outside counsel based on which outside lawyers told me that they personally think they’re great, I’d still be disappointed 19 times out of 20. I still don’t like those odds.

I don’t know if other inside counsel view things the same way I do. But, if they do, it makes business development awfully tricky. If there’s nothing you can say or do to cause me to hire you, what forms of business development might work?

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I recently heard the managing partner of a regional law firm say that alternative fee arrangements are like teenage sex: “More of it is being talked about than is actually being done, and the little that’s being done is being done poorly.”

My corporation now uses alternative fee agreements for a large percentage of its work. All of those arrangements have worked out acceptably, and one (which I’ll discuss after the jump) has played out spectacularly. The harder question is this: How does one convince tens of thousands of readers to click through the jump (and “continue reading”) a column about alternative fee arrangements (because clicks through the jump are, after all, the relevant metric to the Above the Law gang)?

I’ve got it! Gin up a riddle, and put the question before the jump and the punch line after. What reader could resist?

So — riddle me this:

What’s the similarity between discussions about alternative fee agreements and elephantine mating?

Both take place on a high level, involve much trumpeting, . . .

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Tomorrow, I’ll be going into a meeting with the folks from finance, and they’ll ask me: “How much are we going to pay in the Smith case, and in what quarter?”

[Note to accounting purists: We'll assume that we could reasonably win Smith, so liability is not probable.]

To be sure that I have the most informed opinion possible, I call outside counsel and cleverly ask: “How much are we going to pay in the Smith case, and in what quarter?”

And outside counsel starts the usual spiel:

“Life is full of surprises. The Lord works in mysterious ways. Litigation is like a black box; you never know what’s inside until you’ve opened it, and by then it’s unstoppable.”

“Yeah, yeah, yeah,” I say. “But how much are we going to pay in the Smith case, and in what quarter?”

“Well,” says outside counsel. . . .

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Here’s another story from real life (unless I’m making it up). The draft mediation statement starts with: “We sued them in Texas, and they sued us in Florida. Judges in both courts have now considered the issues.”

I write back, in my usual sensitive, caring way: “Any brief in the world could start with, ‘Somebody sued somebody’; that’s kind of the starting point for lawsuits. Because your opening sentence is entirely generic, it’s entirely unpersuasive. Please consider starting instead with: ‘BigCo hired three professional assassins to storm our world headquarters. During the assault, the assassins killed six of our employees, wounded four, and stole our trade secrets along the way.’ Having thus shown the mediator that we should win, we could then go on to note that we sued them in Texas, and they sued us in Florida, and judges in both courts have now considered the issues.”

Outside counsel writes back: “Perhaps you’d be right in some other case, but not in this one. We mediated this same case 18 months ago in front of the same mediator, so he already knows what our case is about. He doesn’t need any more of an introduction than my draft provides.”

What are the mistakes here? First, I’m the client. If I propose doing something idiotic, then stop me by any means necessary. But, in close calls, let me win; that’s called client service (and it’s what I did during the 25 years I spent in private practice). Second, this isn’t a close call. When I’m right and you’re wrong, let me win; that’s called intelligence. Third, and why I’ve set fingers to keyboard — you’ve made a mistake that I see repeatedly among lawyers: You think that people remember you . . . .

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Let’s assume for a moment that arithmetic is true.

This means that the average lawyer is average.

And average is actually pretty bad. (As one of my co-clerks said during the first week of a clerkship, reading a Ninth Circuit brief several decades ago: “This is great!”

“What? Is the brief good?”

“No! The brief is terrible. We are not gonna starve!”)

The average lawsuit thus pits Tweedledee against Tweedledum, and, sadly, they can’t both lose. After the verdict comes down, Tweedlewhoever boasts on his website of another great victory and yet more proof of his talent and expertise.

Twenty years later, what does that look like?

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Years ago, I knew a lawyer who thought that business entertainment worked. He was a plaintiffs’ personal injury lawyer: “I treat a doctor to a $50 lunch, and the next day he refers a case to me. I make one phone call and settle the case for $9,000, netting a $3,000 fee. And the doctor thinks we’re even! It’s unbelievable! I can’t eat enough lunches!”

Good for him. But does it work for anyone else?

I certainly treated clients to dinners and sporting events in my day, but none of those clients (or prospects) ever hired me in return for that entertainment. I didn’t expect them to, and I’d be terribly disappointed in them if they did. My having treated a guy to a dinner doesn’t make me the best lawyer to handle his case, and he’d be nuts to hire me because the caviar was beluga.

The reverse is also true. Lots of people want to meet me, buy me a meal, or take me to a cricket match (I’m now based in London, remember?) since I’ve gone in-house. A few of the folks who buy me lunch even follow up with e-mails expressing their unhappiness that I haven’t promptly retained them: “Was it something I said? Why haven’t I heard from you, other than the thank you note?”

It was nothing you said. But why should I possibly hire you simply because you bought me lunch?

I have my own theory about why firms create large “client entertainment” budgets . . .

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People are idiots. Maybe that should be the official motto of this column.

(Maybe, given what I wrote in The Curmudgeon’s Guide to Practicing Law, that should be the official motto of my life.)

Today’s column draws, as always (except when I’m making stuff up), on true life.

A friend at a London law firm wanted to meet a senior executive at my company. I asked the executive if he cared to join my friend and me for lunch. I naturally placed no pressure on the exec: “I’m happy to have lunch with this guy alone, or I’m happy to set up something for the three of us. What do you prefer?”

Somewhat to my surprise, the exec accepted the lunch date. I told my friend. And my buddy promptly sent an invitation for the appointed date and time scheduling lunch in a conference room at his law firm, halfway across London from our corporate offices.

Get our your Bluebook and start spotting issues!

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