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 . . . .
I’m not reviewing the book, but instead using it as a jumping-off point to discuss a tangent. Harper explains in his book two things that every sentient lawyer has noticed over the past several years: (1) students are graduating from law school buried under a mountain of debt, and many of those students can’t find jobs, and (2) many law firms have lost sight of the law’s noble history as a learned profession and are now obsessed with maximizing their profits per partner in the coming year.
Harper’s right about these things, of course, and this isn’t exactly late-breaking news to anyone who’s been following either Above the Law or Harper’s blog, The Belly of the Beast, for the last few years. Harper’s book advances the discussion, however, by exploring these issues in more detail than others have. He also proposes possible solutions to these problems, including “allowing the federal government to recover [law school loan] guarantees from a law school (and its university) whenever a student loan became the principal contributor to an alumnus’s later bankruptcy.” (Page 159.) Or encouraging law firms to release their “Working Culture Index,” which would show the percentage of lawyers billing more than 2000, 2100, 2200, 2300, 2400, and 2500 in the previous year (perhaps with separate totals being released for partners and associates). (Page 173.)
These ideas are well worth discussing, and I’m glad that Harper has taken the time to analyze these things. But I have another topic to highlight, which is an odd tangent to Harper’s two issues . . . .
I’ve finally plucked “big firm mediocre” out of my life.
First, I left Biglaw, so I’m no longer revising lifeless drafts that arrive either up through the ranks or from co-counsel.
Then, my corporation entered fixed fee deals for virtually all of its litigation work. We invited only firms that do good work to compete for our business, and the winners have performed as expected: No brief arrives at our doorstep until it’s been reviewed by someone who can write.
But we still have a few strays: There are cases in oddball jurisdictions or involving unusual specialties where we select counsel on an individualized basis. And we still have old cases lingering from before our fixed-fee days staffed by an assortment of counsel. Once in a long while, I still run into briefs written in the “big firm mediocre” style.
What’s funny is how consistent it is. Although the briefs address different subjects in different jurisdictions, and they’re written by different people, “big firm mediocre” constitutes its own distinct literary genre. Care to write in that genre (or assess whether you already do)? Here are the characteristics:
Folks (including those who wrote the Federal Sentencing Guidelines) think that “tone at the top” matters. And those folks are right: If senior executives include the words “with absolute integrity” in their elevator speeches about the company, other people in the organization will catch on. People will come to believe that ethics matter, and ethics will thus come to matter.
But there’s another aspect of “tone at the top” that the Federal Sentencing Guidelines don’t compel: What are we trying to achieve as an institution? What’s your organization’s “tone at the top” on issues apart from obeying the law?
Does a drug company want to “discover and manufacture new substances to help people live longer, healthier lives”? Or does it want to “deliver maximum return to shareholders”?
Or maybe it’s all the same thing. As the (perhaps apocryphal) story goes: An interviewer asked Itzhak Perlman what he wanted out of life. Perlman said he wanted to play the violin. The interviewer was shocked: “Don’t you want to be happy?” “I want to play the violin. If I play the violin, I’ll be happy.”
Maybe if you develop drugs that improve and prolong lives, your shareholders will be rich. (And you’ll probably be happy, too.)
What’s the goal of your professional services firm: Do you want to strive for perfection? Or do you want to generate revenue? Or do you bill by the hour, so it’s all the same thing?
My daughter — you remember her — recently chose her job for the summer after her first year of business school. She was so earnest and diligent about it; it makes a Dad proud.
Choosing a summer job is a huge event in the life of the student: This is, after all, the place where you’re likely to work for at least the first several years of your professional career. A summer job is a big deal.
But consider how things look from the other side of the table: Yet another crop of summer kids appears at your firm for a fleeting moment and promptly vanishes, perhaps to return 15 months later when there’s a chance one of them might help in a real way with some case. Or maybe they won’t come back. Or be any good. Could you remind me again what city I’m flying to tonight, and what motion I’m arguing tomorrow?
Don’t get me wrong: A fair number of lawyers pal around with the summer folks, because (1) those lawyers enjoy spending time with the newcomers, (2) it’s important to the firm to recruit the summer class effectively, and (3) the firm has a budget for entertaining summer associates, and you might as well get your fair share of free lunches and drinks after work.
Eating lunch with a summer associate isn’t a bad deal. But work with one of ‘em? That’s a very different story….
Let me prove that I’ve learned a little about this blogging business over the years: Before the jump, I’ll give you my personal thought or two about introducing prominent speakers. I’ll hold the good stuff — what Fitzgerald, the famous guy, said — until after the jump. (Watch this, Lat! They’ll be drawn through the jump like vultures to carrion!)
How do you introduce a prominent speaker? You can do it the usual way: He went to school, got a job, and did some fancy stuff, zzzzzzzz.
Or you can find something offbeat about the person. I chose to introduce Fitzgerald by saying that I was afraid that our speaker had peaked too young. He had been named one of the sexiest men alive by People magazine in 2005; how do you ever surpass that? And, also in 2005, he had received an award from Washingtonian magazine for “best performance without a script.” For most people, it’s all downhill from there.
Fortunately, our speaker managed to surpass his early achievements. And then I trotted through what must be the usual litany in a Fitzgerald introduction: Led the prosecutions of former Illinois Governors George Ryan (sentenced to five years) and Rod Blagojevich (14 years) and a bunch of others.
That was my contribution to the hour. But, you might ask, what did the famous guy have to say?
But when the talent management folks turn their sights on me, I realize that I have a split personality.
I (and everyone on my compliance team) recently took the Thomas-Kilman Conflict Mode Instrument. This puppy repeatedly asks which of two ways you would choose to resolve a conflict. After you make 30 of those choices, a computer spits out the “conflict-handling mode” that you prefer. The five conflict-handling modes are “competing,” “collaborating,” “compromising,” “avoiding,” and “accommodating.”
This test revealed my underlying split personality before I even learned the results. As to virtually every one of the 30 choices I was asked to make, my answer depends on the circumstances. When representing a party in litigation, I’m often a “compromiser”: He demands 100; I offer 10. He drops to 90; I go to 20. He wants six months to trial; I offer 24. On most subjects, litigants have equal power, and no one wants to be blamed for bothering the judge, so we compromise. According to Thomas-Kilman, I’m a “compromiser.”
But that’s just one of my many personalities. Suppose I’m not representing a party in litigation, but rather “negotiating” with one of my own clients. Goodbye “compromiser,” and hello….
As part of a nationwide tour, Above the Law is coming to the great city of Chicago.
Join preeminent law firm management consultant Bruce MacEwen, Katten Muchin Chicago managing partner Gil Sofer, and JPMorgan Chase & Co. assistant general counsel Jason Shaffer for a panel discussion (sponsored by Pangea3) on the evolutionary and market forces bearing down on the law firm business model. Come on by Thursday, November 20, at 6 p.m., for thought-provoking discussion, food, drink, and networking.
Space is limited and there will be no on-site registration, so please RSVP
Average law school debt for graduates of private universities hovered around $122,000 last year. With only 57% of new attorneys actually obtaining real lawyer jobs, recent graduates have a lot to consider when it comes to managing their student loan payments. Thanks to our friends at SoFi, today’s infographic takes a look at student loan debt, including the possible benefits of refinancing for JDs…
Kinney Recruiting’sEvan Jowers is currently in Hong Kong for client meetings and still has a few slots available through October 22. Evan will also be in Hong Kong November 14 to December 15. Further, Robert Kinney has been in Frankfurt and Munich this week and is available for meetings with our Germany based readers.
One of our key law firm clients has referred us to one of their important clients in the US, Europe and China – a leading global technology supplier for the auto industry – in order to handle their search for a new Asia General Counsel and Asia Chief Compliance Officer.
Kinney is exclusively handling this in-house search.
This position will have a lot of responsibility and include supervision of eight attorneys underneath them in the Asia in-house team. The new hire will report directly to the global general counsel and global chief compliance officer, who is based in the US. The new hire’s ability to make judgement calls is going to be as important as their technical skill set background.
The position is based in Shanghai and will deal with the company’s operations all over Asia and also in India, including frequent acquisitions in the region.
It is expected that the new hire will come from a top US firm’s Shanghai, Beijing or Hong Kong offices, currently in a top flight corporate practice at the senior associate, counsel or partner level. Of course, the candidate can be currently in a relevant in-house role.