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

Some general counsel of public companies return to private practice involuntarily: The new CEO changes the management team, or your GC job becomes redundant after a bigger fish acquires your company.

But a relatively few voluntarily choose to leave the perceived comfort of being the top dog in an in-house law department to resume the battle of private practice.

That’s why I raised an eyebrow when a guy (or gal) who I’ve known for a couple of decades recently left his (or her) GC spot to return to big firm life.

Let me give the details needed to make the story worth telling, while concealing enough to protect my friend’s identity. This person had worked at firms small and large, became general counsel of a Fortune 1000 company within the last three to five years, and left within the last year to return to an Am Law 20 firm. When I heard that this person had returned to private practice, I could feel a blog post waiting to happen, so I naturally picked up the phone.

Here’s why my friend left the life of Riley to return to the big firm fray:

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I don’t live in Lake Wobegon.

I live in Lake WoeIsMe: All of the children are a little below average.

Or maybe I just have a bad attitude.

I’ll be frank: If I just met you, I assume that you’re inept. Not because you necessarily are inept, but because I’ve been blindsided too often in the past by the mistakes of people who I foolishly believed to be competent. That ain’t gonna happen again.

I understand that not everyone views the world through my gray-tinted glasses. I’ve met folks who are shocked by my attitude: “Mark, that outside lawyer from Honduras just told you that you’d win the case. Why are you acting as though we’re going to lose?”

“Because the lawyer is probably incompetent.”

“Why do you think that? He comes highly recommended by Smith.”

“Why do we think that Smith is competent? Or that Smith knows enough about the Honduran guy to have a right to judge him? My working presumption is that people are incompetent until they prove otherwise.”

“I’m shocked by your attitude, Mark. I’m exactly the opposite. When I meet new people, I always assume that they’re good at what they do.” . . .

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I really like what Bruce MacEwen does over at Adam Smith, Esq. He thinks hard about the legal profession, and he says smart things that you won’t find elsewhere.

But he’s not perfect. He recently wrote that clients were partly responsible for the demise of Dewey (which may well be true) because clients had endorsed “the . . . toxic notion that you hire the lawyer, not the firm.” Here, I beg to differ.

Hiring “the lawyer, not the firm” is not a toxic notion; it is sanity.

Hiring the firm would be nuts, for at least two different reasons. First, the firm has many invidious institutional incentives: Let’s suppose you “hire the firm” by calling the managing partner (or head of litigation, or whoever) to say that you have a new case that you’d like the firm to handle. The managing partner naturally pokes around to see “who has time.” Presto! Your case would be staffed with the partner who has nothing else to do, because the firm can’t foist that guy off on any other sorry client. That inept partner would likely be assisted by a few associates who also “have time,” and you’d be wallowing in B-team city.

Not for me, thank you very much.

If you’re an intelligent client, you don’t want the lawyers who “have time;” you want the lawyers who “are good.” There’s no reason to think those two categories overlap, and plenty of reasons to think they do not.

And I’m just getting warmed up here . . .

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When I worked at a law firm, I knew that lawyers’ responses to audit letters — in which the firm confirms to auditors the status of litigation pending against a client — were a massive waste of time.

Firm policy dictated that we would speak only pablum in response to audit letters. We would identify each case by name, court, and number; explain that a complaint had been filed; list the causes of action; say where we stood in discovery and whether a trial date had been set; and then say that we didn’t have a clue who would win. (If we thought that the client’s chance of losing was either “probable” or “remote,” we were required to say so. I’m not sure we ever saw such a case.)

Every once in a while, a junior associate would receive an audit letter and write a real response to it — analyzing the lawsuit, the tactics, and who would win. When the powers that be learned about that mistake, there’d be hell to pay: “How could you write those things? Didn’t you run this past an audit letter review partner? We don’t actually provide information in those responses, you fool! Never do this again!”

As a partner at a firm, I knew that responding to audit letters was an expensive nuisance: A full-time audit letter assistant cranked out first drafts of responses to the letters. (That’s all she did, eight hours per day, 52 weeks per year — honest.) The appropriate client relationship partner reviewed each draft. An “audit letter review partner” (I had the misfortune to be one of those for four or five years) took another pass at the thing. Only then — after the letter had been stripped of all content — did the response go out the door. That was an awful lot of time and money invested to insure that the firm didn’t accidentally say something.

But I always assumed that someone — the client, the auditors, someone — thought those ridiculous letters served a purpose. Now I’ve gone in-house, and it turns out that audit letters serve no purpose at all. . . .

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I’m a week late in reminiscing about 2012, but what can I say? I’m a step slow; you’ll just have to excuse me. These are some of the memorable things I heard during the last year.

First, an employment lawyer who recently moved from the United States to the United Kingdom:

“What’s the correct way to refer to black people over here?”

“Excuse me?”

“In the United States, we refer to black people as ‘African-Americans.’ But you must have a different word for black people over here in England. Those people aren’t Americans, so they can’t be African-Americans.”

“We call blacks ‘blacks.’”

Second, a senior partner who serves on the executive committee of his Am Law 20 firm:

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This post is both a request for information and a cry for reform.

Here’s the backstory: Back when God was young, I clerked for a federal appellate judge. I saw how things operated in my circuit, and my friends clerking elsewhere told me how things worked in other circuits. One operating procedure differed between circuits; the procedure affected litigants (without their knowledge), and one system was plainly better than the other.

My request for information is that recent clerks update my information: Does this operating procedure still vary among circuits today?

My cry for reform is that circuit judges discuss this issue internally to decide whether they’re convinced, as I am, that some circuits are hurting both themselves and litigants in the process by which the courts use bench memos….

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A decade ago, I sat in the midst of hundreds of lawyers at a firmwide partners meeting. The managing partner explained that most of our revenue came from our 25 largest clients, and we should focus on expanding those representations. He then noted the conflicts problems posed by tiny clients, for whom we did essentially no work. He urged us to get the tiny clients off the books. To illustrate his point, his PowerPoint slide showed the clients to whom we had sent the smallest bills in the previous year. The firm’s smallest client had been billed a total of $3.25.

The managing partner scoffed: “Three and a quarter? Three and a quarter? Can’t we at least be as selective as the neighborhood bar? Maybe we should set a $25 minimum.”

I’ve inhabited law firms both small (for five years) and large (for twenty). Business development efforts at those firms are similar in some respects — “get famous; make contact; get lucky; repeat” — but differ in other ways. I’m thinking today about the ways that business development efforts differ depending on whether you work at a big firm or a small one….

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Years ago, I was a barrel of laughs. (Well, more of a barrel of laughs then than I am now, anyway.)

When I was defending antidepressant-suicide cases, I barely resisted the urge to send in-house counsel an e-mail containing a political cartoon: The little lab rat was dangling (with his tongue hanging out) from a noose in the cage, having plainly just kicked the little stool out from under himself. One of the two researchers in white coats was saying to the other: “We have some bad news on the new antidepressant.”

Herrmann, you idiot! You can photocopy the thing and show it to the in-house lawyer the next time you see him, but the company just can’t have that in its e-mail system! Can you imagine that as Exhibit 1 at trial?

But I didn’t always censor myself. I’d share (funny) on-line humor with colleagues and clients, figuring that they’d appreciate it, and it was a painless way of letting clients know that I was thinking of them. I may well have been violating some firm policy by using the computer system for “non-business” purposes, but who cares, really?

When you start speaking to big audiences, you become more cautious. I wrote in Monday’s Inside Straight column, for example, that something had happened years ago, “when God was young.” I thought long and hard before I pressed the “publish” icon: Who will I offend? Orthodox Jews who never speak or write the name of Gxd? Devout Christians offended by the use of the Lord’s name in vain? Anyone else? Is it worth the risk of giving offense for the small benefit of making one column slightly more interesting?

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A correspondent recently posed this question: I’m a litigation partner at a big firm. If I go solo, will my corporate clients continue to use me for their smaller matters?

I’ll use this column to do two things. First, I’ll offer the customary answer to all legal questions: It depends.

Second, I’ll ask my in-house readers at large corporations to let me know (either by posting in the comments or sending an e-mail to the link in the shirttail below) whether their corporations use sole practitioners.

Will big corporate clients follow an individual lawyer who jumps ship and goes solo?

It depends . . .

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First, a shameless plug: Here’s an interview in which Ari Kaplan and I discuss “Inside Straight and the Impact of Getting Published on Professional Success.” (That’s Inside Straight, the book, not Inside Straight, the column, although I guess I see the room for confusion there.)

But enough of that. Let’s hear from the managing partner of our law firm:

Ah! Orlando in March! What a fine time and place for our annual firmwide retreat.

I want to welcome everyone to this magnificent resort, and I want to take this opportunity to say a few words about a subject that’s dear to our hearts: Billing time.

To paraphrase Sir Thomas More in “A Man For All Seasons“: “When a man [fills out his timesheets,] he is holding his own soul in his hands like water; and if he should open his fingers then — he needn’t ever hope to find himself again.”

For the junior associates in the crowd, consider this: You will, at some point, have a slow month. You’ll get nervous that the firm will punish you for not having billed enough hours. To protect yourself, you’ll be tempted to borrow from the future. You’ll think that, if you add just four hours to this month’s time, you’ll have hit your billing target. If you charge those four hours to your largest client, no one will notice that you’ve slightly padded the bill. And you’ll figure that you’ll make this up to the client in some future month; you’ll work four hours some Saturday morning that you won’t write down, so the client will come out even in the long run. “That’s not really fraud,” you’ll think, so you’ll have eased your conscience. . . .

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