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 . . . .
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.
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 . . .
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.
Partner asks for a draft brief by Wednesday. It doesn’t arrive on time. Partner asks Associate about the brief: “I wrote it, but the dog ate it. I’ll get you a draft next week.”
On the next assignment, Partner asks for a draft brief by a deadline. The brief doesn’t arrive on time. Partner asks about the brief: “I left the finished draft in a briefcase in my car, and a thief broke into my car and stole the briefcase. I’ll get you a draft next week.”
On the next assignment, the computer crashed at the last minute. And on the assignment after that, a junior lawyer doing some research for the brief fell ill, so it wasn’t possible to get the brief written on time.
For Partner, the solution is easy: “This clown is irresponsible. There are other associates around here who actually do things on time. I’ll stop working with the clown, and my life will be much easier. And I’ll report on the clown’s annual review that he’s irresponsible.”
For Associate, the situation is baffling: “I do great work, and I turn things in late only when fate interferes. Why doesn’t Partner work with me anymore, and why did he unfairly say on my review that I’m irresponsible?”
Another example; the corporate analogy to law firm life; and my stunning conclusion all after this enticing ellipsis . . .
I love it: Law firms send us brochures and offer us free CLE programs about all the things that smart corporations should do.
We should protect data privacy. We should have written policies that require pre-approval before our sales folks entertain clients at fancy events. We should train our employees about “intelligent business communications,” so that no one writes stupid e-mails. We should train everyone about conflicts of interest, avoiding discrimination or harassment in the workplace, and insider trading. We should establish systems to confirm that any person or entity that needs a license is in fact licensed.
And then what do law firms themselves do? The firms blithely ship personal information from office to office around the world — because the folks in the U.S. need information about the plaintiff suing for personal injuries in France. The firms have no rules at all restricting how lawyers entertain their clients. Lawyers at the firms write stupid e-mails. [Note to David Lat: Please do not add a link to the preceding sentence about stupid e-mails. You'll link to an article about some law firm in particular, and lawyers at that firm will write to me accusing me of having slung mud at their firm. I'm not slinging mud at any one particular law firm, by God -- I'm slinging mud at all of them!] What else do firms do? Corporate lawyers move from New York to California and never bother to take the California bar exam, because it’s such a pain in the neck, and no one will ever know, anyway.
Corporate Counsel recently investigated this issue, asking major law firms about their compliance programs. The conclusion? Law firms generally either don’t have compliance programs or choose not to discuss the issue (because, I’ll speculate, they don’t have compliance programs, and prefer not to admit this publicly). Isn’t it time for the shoemaker’s children to be shod?
First, an offer: I thought I had retired my “book talk” about The Curmudgeon’s Guide to Practicing Law when I moved to London last fall. But I’ll be in the States for a few weeks in late May and June, and I’ve been asked to dust off the talk and give it a few times — at the annual meeting of the Association of Defense Trial Counsel in Detroit, and again in Chicago for Kirkland & Ellis and Greenberg Traurig. So long as I’ll have to flip through my notes and re-learn the talk, I might as well give it for your group, too. Please let me know by email if your law firm is interested.
Second, today’s thesis — and it’s a backwards one: Law firms think more highly of you for the years when you’re not working at the firm.
I’ll start with the easy example: I moved as a sixth-year associate from a small firm in San Francisco to a huge firm in Cleveland. When I arrived at the huge firm in Cleveland, partners treated me surprisingly well. Why?
Although I won’t name names here (because my employer is, among other things, the insurance broker to the stars, and I can’t afford to offend clients or potential clients), I just stumbled across an article that indirectly told me how to pick outside counsel.
In a relatively high-profile situation, a government entity recently had to retain an outside law firm. The government naturally retained an outside adviser to help the government make its choice. (How else could one possibly pick counsel?)
The outside adviser — I think you’d call the outfit a management consultant, although the website left me a little confused — has lots of MBAs on staff, but there’s not a lawyer to be seen. No matter: The MBAs created a questionnaire for the law firms to fill out, and the law firm that accumulated the most points won the business.
This is great! It’s time (once again) for me to stop thinking and start copying! We’ll revamp our whole system for choosing counsel! In the future, we’ll give the law firms who want our business a form to complete. We’ll add up the points — even I can do that. And then we’ll choose the law firm with the most points, thus retaining the best firm in the world to handle our matter through an objectively defensible selection process, in case anyone ever wants to second-guess our choice of counsel.
Shoot! If only I’d gone to business school, I could have been this smart! Let’s take a look at the questionnaire, so I’ll know the form that I’m copying to choose counsel for my next case . . . .
Sometimes, we care about questions. Sometimes, we care about answers. Sometimes, we care about both.
When you’re reporting on a situation, remember that.
I see many, many interview reports that unnecessarily include questions when the reader cares only about answers. If you’re interviewing a witness, and the witness lived the facts (and you personally know bupkis), then we really don’t care about your questions; we care only about the witness’ answers.
So, when you’re reporting on your interview of the witness, do not assign an abbreviation to your name (Mark Herrmann, hereinafter MH), an abbreviation to the witness’s name (The Witness, hereinafter TW), and then report on your questions as though they mattered:
“MH asked . . . . TW responded . . . . MH followed up by asking . . . .”
We care only about the facts — which the witness knows, and you do not — so report only the facts:
“According to the witness . . . .” Your name should appear no more than once in the entire report, so we know who conducted the interview.
That’s a situation where we care only about answers. But there are other situations where we care only about questions . . . .
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