Mark Herrmann

Posts by Mark Herrmann

Inside Straight: Don’t Tell Obvious Lies!

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Okay, I confess: I made the headline intentionally provocative. You shouldn’t lie at all, and you should absolutely forbid witnesses from lying under oath. (If we, the lawyers, don’t obey the law, who will?)

I’m thinking today about a person who is not under oath and will be sorely tempted to tell an obvious lie. Don’t do that yourself, and advise others that it’s not great idea, too.

When are people tempted to tell obvious lies?

In the corporate context, a quarterly earnings announcement might boldly proclaim that the company earned $1 per share this quarter. The Street expected only 90 cents, so this appears to be great news. But there’s something else tucked into the earnings report that disappoints the analysts: revenue declined; margins compressed; organic revenue growth stalled; whatever. Thus, despite the happy headline, the stock price drops two bucks on the day of the earnings announcement.

The next week, you, or the head of your department, or the head of a business unit, or whoever, has to brief an internal audience about the quarterly results. The speaker will be sorely tempted to tell an obvious lie: He’ll pull excerpts from the slide deck used for the earnings announcement, emphasize that the company beat the Street’s consensus estimate by ten cents a share, and tell the gang that we had a great quarter.

Meanwhile, everyone in the room is thinking: “If we had such a great quarter, why did the stock price crater on the news? Do you think I’m an idiot? Why are you lying to me, and do you lie often?”

I’m no expert in corporate communications, but it strikes me that it’s a bad idea to tell obvious lies. How do you avoid telling obvious lies?

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Inside Straight: Is Our Lawyer Aggressive Enough?

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Why do so many people think that you must be a blowhard to be an effective litigator?

I’ve recently heard several tales of business folks (or in-house lawyers) worrying that outside counsel is not aggressive enough. What prompts the concern is the lawyer’s performance during a conference call or at a meeting: The lawyer is civilized. The lawyer speaks quietly, asks probing questions, gives intelligent advice, and appears to be an effective advocate.

After the meeting, one of the participants says: “Are you sure we should use that guy? He doesn’t seem very aggressive.”

Remarkably (at least to me), I’ve heard the same thing at law firms. I’ve heard transactional lawyers wonder about litigators who are calm and intelligent at the lunch table: “He’s such a nice guy. I’m not sure I’d trust him in court.”

What’s my reaction? On the one hand, we can’t ignore perceptions. If a lawyer is so low-key that he doesn’t inspire confidence, then that is a legitimate concern. If I don’t trust the lawyer who’ll represent me at trial to defend me during a vigorous cross-examination, then that’s a real issue; we shouldn’t hire that lawyer. Confidence matters.

On the other hand, if the concern is simply that the litigator is not a blowhard — the lawyer speaks quietly and intelligently during business meetings, where there’s no need for bluster — then I have a very different reaction. In fact, I have three reactions:

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Inside Straight: Setting Performance Objectives

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Do law firms set performance objectives for their lawyers?

I worked at two different law firms over the course of 25 years, and I remember only one meeting where anyone sat down and talked with me about setting performance objectives. We set the objectives; no one ever followed up to see whether I’d achieved them; and the rest was silence.

Perhaps some firms regularly set performance objectives for lawyers, but that was nothing I’d experienced before I moved in-house.

Many corporate law departments set performance objectives for in-house lawyers, and many people do this poorly. “Setting objectives” is viewed as an annual chore inflicted on the supervisor that he cannot ignore; the computer system keeps nagging him about it and ratting him out to others up the ranks. The supervisor finally relents and types a few objectives into the system: “Meet budget. Work closely with business units. Negotiate alternative fee agreements.”

Now that’s out of your hair, and no one will bother you until next year.

Or, if you preferred, you could do it right . . .

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Inside Straight: Tales From The Interview Crypt

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I wish I could name names; I really do. But I work at the world’s leading insurance broker for law firms, and I can’t go around offending the clients (or potential clients). You’ll just have to guess.

All of these interviews actually took place. I swear it.

First, there was the senior partner at a major New York firm, interviewing me at the start of my second year of law school: “You know, a lot of students want to make excuses for not having perfect grades. Sometimes, those excuses are pretty good: You hear from the single mothers. You hear from people who are working full-time and going to law school at night. The excuses aren’t bad.

“But I have to tell you something: If you have to give me an excuse, I don’t want to hear it. We have too many people who are perfect looking for jobs here. If you’re perfect, we’ll hire you. If you have to make an excuse, don’t even bother telling me. If you have to make an excuse, we’re not making you an offer.”

I didn’t say these stories were uplifting. I said only that they were true.

The next one’s at my expense:

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Inside Straight: Institutionalizing Mediocrity

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Here’s my thesis: We create rules to hedge against ineptitude, and we thus institutionalize mediocrity.

Here are the examples. First, someone — the Administrative Office of the Courts? God? — creates rules to hedge against incomprehensible judicial opinions, and we thus discourage judges from writing exceptional opinions.

When new federal appellate judges attend what is affectionately called “baby judges’ school,” the judges are told how to write opinions. An opinion should have five parts, the judges are told: An introduction (which does not have to be preceded by a separate heading); a statement of facts; the standard of review; the legal discussion; and a conclusion.

Do we impose these rules because every judicial idea is best expressed in this format? Of course not. These rules impose a basic organizational structure on decisions, so that even the worst appellate decisions will be marginally comprehensible. The rules hedge against ineptitude.

Most judges follow the rules, and society generally benefits; we understand most of what’s written. I suspect that many judges who would be capable of writing better opinions if they were not bound by the rules nonetheless choose to constrain themselves, opting to do as instructed. Society may suffer in those situations, because the opinions are not as well-crafted as they might otherwise be.

A few judges ignore the rules. Whatever your politics, for example, you probably agree that Judge Frank Easterbrook often writes great opinions; he regularly ignores the mandatory structure. (This isn’t a high crime or misdemeanor, so he’s safe.) We don’t complain when Judge Easterbrook strikes out on his own, because readers understand what he’s saying and often delight in how he expresses himself.

On the other hand, if Judge Nobody were to strike out on his own, the law might become a muddle. We try to control that judge by imposing a structure. Bureaucratic rules discourage greatness, but they hedge against ineptitude.

Here’s a second example:

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Inside Straight: A Requiem To Epiphanies

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In the first lawsuit (during the proxy fight), the judge held that certain statements made in proxy materials were false and misleading. That lawsuit settled. In the next lawsuit (the 10b-5 class action), plaintiffs explain that precisely the same statements appeared in an annual report, and it is now settled law that those words are false and misleading. How do you avoid the devastating effect of collateral estoppel in the second case?

I solved that puzzle back in 1990. Now I’ve moved in-house, and I fear that I’ll never solve a similar puzzle again.

Have I lost my creativity? I don’t think so. Does my job still require creativity? Yes — but different kinds of creativity. This column is a requiem to a type of thinking that an in-house job — or, at a minimum, my in-house job — doesn’t seem to permit….

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Inside Straight: You Are Not A Potted Plant!

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First, a shameless plug. Then, back to business.

I’ll be giving my “book talk” about The Curmudgeon’s Guide to Practicing Law at The University of Michigan Law School on Monday, March 5, and again at Northwestern University Law School on Tuesday, March 27. If there’s a chance your organization might be interested in that talk, and you’ll be in Ann Arbor or Chicago at the right times, please let me know. We’ll sneak you into the room, and you can get a sense of the topics that I discuss.

Now, the business: You are not a potted plant! When you transmit something, either within a law firm or to (or within) a corporate law department, add value. You are not — or should not be — simply a conduit through which things flow. You don’t impress people with your timidity, and you may well annoy people.

What am I thinking of?

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Inside Straight: Silly Email Of The Year Award

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The “commenters” at Above the Law are — as you know if you’ve ever looked — a tough crowd. If you’re a partner at a big firm, then you’re a loser, because you’re a workaholic stiff with no life. If you’re a partner at a small firm, then you’re a loser, because you couldn’t succeed at a big firm. If you’re an associate at a big firm, you’re a loser, because you’re a lifeless drone who doesn’t have the courage to pursue your dreams. If you’re a scholar, then you’re a loser: Those who can’t do, teach. If you’re a judge, then you couldn’t cut it in private practice, so you had to bail out.

You get my drift.

The correspondents who choose to write to me personally (by clicking on this link) are an entirely different breed. (Perhaps it’s because they’re not anonymous.) My correspondents have been consistently civilized and reasonable, and often quite thoughtful. But I recently received a well-crafted, nicely written email from a law student who utterly missed the boat. I devote this column to that correspondent, and to others who might be suffering from a similar misconception.

Here’s the backstory: I wrote a column about how improving the quality of law firm interviews might improve the quality of associates that a law firm hires. A law-student-correspondent suggested that law firms might in fact not care about the quality of associates. To paraphrase: “Law firms count on having high attrition in the associate ranks. So you need a fair number of associates who will either leave on their own or have to be shown the door. And law firms make very few partners, so, after an entering class has been winnowed down over the course of a decade, the firm is likely to have one or two remaining candidates who can be offered partnership. That’s true regardless of the quality of the entering class.”

That email is proof that insanity can be made to sound plausible . . .

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Inside Straight: ‘Recreational’ Writing, In-House and Out

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Complete honesty is such a dangerous thing.

I’m going to give it a shot.

I’m posing three questions to myself today. First, why might a lawyer at a law firm choose to write articles? Second, what topics should lawyers write about, and where should they publish the articles? Finally, why might an in-house lawyer choose to write?

The honest truth is that outside lawyers choose to write for many, varied reasons. In-house lawyers might also choose to write for many reasons, but those reasons are different and fewer. Across the board, authors’ motivations for writing will be mixed.

Do I have a right to speak on the subject of publications? My credentials, in a nutshell, are these: Three books; twelve law review articles; two book chapters; about 70 other, shorter articles (in places ranging from The Wall Street Journal and the Chicago Tribune to Pharmaceutical Executive and Litigation); and maybe 600 blog posts (roughly 500 at Drug and Device Law and north of 100 here). Call me nuts (and I may well be), but I’ve spent a professional lifetime doing a ton of “recreational” legal writing.

Why did I do it? Should you?

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Inside Straight: If You Touch It, It’s Yours!

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Here’s the sad rule: If it comes across your desk, then you’re responsible for it.

Period.

That’s the rule at law firms. It was my rule when I worked at a firm, and it’s the rule that I now impose on outside lawyers. Thus, when I was a partner, I did not tolerate this excuse after an associate sent me a crappy draft brief, supposedly ready to be sent to a client for review: “I know the draft is not very good. But I didn’t write it. Local counsel did.”

Yeah? So what am I supposed to do with the crappy draft? Send it to the client with a cover note explaining that we propose to file the attached terrible brief, and we should be excused from blame because local counsel wrote it? I don’t think so. If a brief crosses my desk, then it’s my brief. I’m responsible for it. It has to be good.

So, too, with you: When the brief hit your desk, you became responsible for it. The draft brief that you send to me is your best possible work product; there are no excuses.

The same thing is true in-house . . .

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