Mark Herrmann

Posts by Mark Herrmann

Inside Straight: On EUSLAs, Depositions, And Trials

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I got caught.

In a column last week, I criticized a brief for using the alphabetical short form “EUSLA” to signify “end user software license agreement.” Depending on the circumstances, I suggested, one might shorten the name of that contract to “agreement,” “license agreement,” or “software license agreement,” but “EUSLA” just doesn’t work — it’s meaningless alphabet soup that doesn’t help the reader of a brief.

As I said, I got caught: The lawyer who had drafted the brief read my column, cleverly figured out who I was criticizing, and called to take issue with me. (Serves me right for using real-world examples in this forum, I suppose.)

“You’re wrong, Mark,” my outside counsel said. “We called that contract an ‘EUSLA’ in all of the depositions in the case. When we quoted deposition transcripts in the summary judgment brief, those quotations called the contract an ‘EUSLA.’ We would have confused things if we called the contract an ‘EUSLA’ in the deposition excerpts and a ‘software license agreement’ in the rest of the brief. ‘EUSLA’ was the right choice.”

This conversation illustrates, first, why you shouldn’t quarrel with me while I have this nifty megaphone at Above the Law and you’ve got bupkis; I can’t possibly lose. And the conversation illustrates, second, the meaning of “digging yourself into an even deeper hole.” “EUSLA” is the wrong short-form in a brief, and your earlier mistakes don’t justify your later one . . .

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Inside Straight: On Crossing The In-House Rubicon And Law Firm Stupidity

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I had a cup of coffee last week with an old friend who happens to be a legal recruiter.

“Are you going to try to pry me out of my job?” I asked. “That’ll be a pretty tough sell.”

“I couldn’t place you if I tried,” he said.

“Excuse me?”

“You crossed that Rubicon two years ago. I do searches only for law firms, and they don’t hire in-house lawyers. You’re no good to me anymore.”

“Excuse me?”

“Law firms buy books of business. Not only that — they buy only past books of business. Nobody buys a story — a promise of future work — these days. Firms buy only your past successes. That’s often incredibly stupid, but it’s what they do.”

The guy had my attention: First, I’m no longer a hot commodity; somehow, that annoyed me, even though I’m not looking to sell myself these days. Second, law firms are stupid about lateral hiring; this was a blog post waiting to happen . . .

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Inside Straight: On Robin Williams And Saying ‘Thank You’

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First, a stand-up comedy routine; then, my point.

In the early 1980s, Robin Williams performed in a nightclub. His performance was taped and later broadcast by HBO. During the performance, Williams spied on-stage a wine glass filled with a clear liquid (which was, in fact, water), and Williams was off and running:

“There are white wines. There are red wines. Why are there no black wines?

“Reggie wine! It’s a m*therf*cker! Goes with meat; goes with fish; goes with any damn thing it wants to.

“I like my wine like I like my women — ready to pass out.

“We’ll get Mean Joe Green to advertise the stuff: ‘Reggie wine! Drink this sh*t or I’ll nail your ass to a tree.’”

After HBO broadcast the performance, an African-American winemaker named David Rege (pronounced “Reggie”) sued Williams and others in California state court, claiming that Williams had damaged Rege’s reputation and adversely affected the sales of his wine. (You knew there was a lawsuit tucked in here someplace, didn’t you?)

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Inside Straight: Breakfast With Easterbrook

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At a breakfast last week, the Seventh Circuit Bar Association learned the true meaning of going “from the sublime to the ridiculous”: As Judge Frank Easterbrook took his seat, I approached the lectern.

I won’t burden you with the subject of my remarks (regular readers of this column could probably guess), but I’ll share the sublime. Judge Easterbrook said one thing, and he failed to mention another topic that he often raises.

Judge Easterbrook explained that, as a young lawyer, he had sent a brief to the Third Circuit for filing. The clerk rejected the brief and mailed it back. Easterbrook called, and the clerk’s office explained that it had rejected the brief because the back cover was the wrong shade of blue — a shade specified by an unwritten local rule. Easterbrook asked if there were any other unwritten rules, and the clerk said he wasn’t sure. Easterbrook mailed a revised version of the brief, which the clerk’s office again rejected — this time for violating a different unwritten local rule. On the third try, the clerk’s office finally accepted the brief. Easterbrook swore that, if he were ever the chief judge of a circuit, all of the rules would be in writing. Easterbrook then told the assembled crowd that (1) the Seventh Circuit’s written rules are fairly comprehensive and (2) the clerk’s office is extremely helpful if you call for advice, so there’s no longer an excuse for not complying with appellate local rules.

Judge Easterbrook last week chose not to discuss a different subject. One of the other folks who attended the breakfast meeting told me that the judge often raises this in his talks . . .

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Inside Straight: The Generational Divide In Legal Humor

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Consider this definition (which I’m borrowing from my own work):

“Business development: Playing golf with old college buddies. As in: ‘Of course I charged the firm for my business development trip to Scotland.’”

If you’re in high school, you did not think that was funny.

If you’re in law school, you have a bemused look on your face.

If you’re 50 years old and work at either a large law firm or a large corporation, you may well have just laughed out loud.

Why is that? I submit that there’s a generational divide in legal humor.

When my daughter was in first grade, and her classmates were all losing their baby teeth, I picked up Jessica’s arm one day and felt around in her armpit. “Hey, Jessica,” I asked, “are any of your classmates losing their baby arms yet?”

Jessica didn’t laugh. Instead, she gave me a look that said, “I’m pretty sure that he’s kidding — but if he’s not, this really sucks.”

I got that same look recently from a bunch of students at the University of Chicago Law School . . . .

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Inside Straight: Why Are Elections Like E-Discovery?

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For a couple of centuries, we thought that American elections were precise: People voted; the government counted each vote; we knew which candidate received how many votes.

In the year 2000, we learned that elections are approximations. Votes are miscounted; chads dangle; we don’t in fact know precisely who received how many votes. Elections are a human process after all, and they can’t bear the weight when we insist on precision within the margin of error.

So, too, with litigation. I recently spoke to one of our outside litigators who had seemingly vanished from the face of the earth for several weeks. He told me that one of his clients had run into a now-typical e-discovery disaster: His client had overlooked some documents; a computer system had automatically deleted some other documents; when the client corrected the situation, it did so imperfectly; the judge (who came from a government background and had no experience in private civil litigation) was quick to spy “bad faith.” Why, this outside lawyer asked, don’t judges appreciate the difficulties presented by e-discovery?

My thesis (for today, anyway) is that e-discovery is like elections: It’s an approximation, and participants in litigation (parties, counsel, courts) should understand that it may not bear the weight when the judicial system insists on precision within the margin of error . . . .

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Inside Straight: The Annoying Ramblings Of An Uber Douche

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First things first: Thank you.

In response to my solicitation a couple of weeks ago, my “commenters” and correspondents provided ample material for the last chapter of my forthcoming book, Inside Straight. The “commenters,” I must say, will test the mettle of whomever ABA Publishing assigns to edit the manuscript. I asked my readers to propose a subtitle for the book, and I promised to re-print in the book the best (and worst) of the suggestions. To my eye, Inside Straight: The Annoying Ramblings of an Uber Douche and Inside Straight: But Outside? Pretty Into Dudes both made the cut. But I’m easy; the unfortunate editor at the ABA will have his hands full.

(Why seek to savage myself in public? Because roughly 97 percent of visitors to Above the Law never bother to look at the comments. I’d like the book to reveal to those typical readers the odd relationship that bloggers can have with their blaudience. That relationship is multifaceted; people should understand both the vitriol of the commenters and the wisdom of crowds.)

Thanks also to my correspondents (including one New York Times bestselling author, who’s also a lawyer) who provided some additional “advance praise” that we’ve posted at the pre-publication web page offering Inside Straight for sale.

But enough of that. Let’s get back to business: What annoying ramblings can the uber douche inflict on readers today? Business meetings! We have them all the time, and people misuse them. We meet with outsiders whom we’re trying to impress, and we then cross-examine each other and reveal that we’re not very impressive at all. We meet to solicit help from business folks, and the lawyers blather on about legal technicalities that neither interest nor inform anyone. How can we fix this?

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Inside Straight: The Ten Rules For Writing Articles To Generate Business

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I mentioned last week that I recently moderated a panel of in-house lawyers at Schnader Harrison’s annual retreat. Always happy to share, I’m gathering here my existing thoughts on writing articles to develop legal business plus some new ideas suggested by the panelists. And, because handy lists get clipped and saved, I’m putting those thoughts into a list.

What are the ten rules for writing an article that will generate legal business for the author?

1. Write about a substantive issue, not a procedural one.

No one in the history of the world has retained a lawyer because the lawyer was the world’s greatest authority on Federal Rule of Evidence 403 or how to remove an action to federal court. People hire 10b-5 lawyers, not removal lawyers. If you’re writing to generate business, write on a substantive topic, not a procedural one.

2. Write about a niche area of the law.

If you write an article about some clever provision that a real estate lawyer should put in a lease, potential clients will read your article, send your article to their existing real estate lawyers, and ask the incumbents whether the incumbents have considered this idea and are able to put it to use. Your article thus educated the world and may have generated business for incumbent counsel, but it didn’t generate any business for you.

Niches are better. If you write about a niche area of the law — I’ve previously suggested that Colorado escheat law is wide open — the client’s incumbent firm won’t be able to provide the service that you’ve written about. If you’re writing to generate business, you don’t want to just suggest ideas that other lawyers can easily use.

3. . . .

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Inside Straight: How Do You Displace A Competent Incumbent?

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I gave my “book talk” about The Curmudgeon’s Guide to Practicing Law at Schnader Harrison’s annual retreat last Saturday and then had the opportunity to moderate a panel of six (counting me) in-house lawyers. Three of the gang were from QVC, one from Endo Pharmaceuticals, and one from the Graham Company. Being a rabble-rouser at heart, I started the discussion by posing the question that I often considered during my time as an outside lawyer: How can a law firm that wants new business displace a competent incumbent firm?

My co-panelists were quite good, but I must say that their natural instinct when confronted with this question was to evade. Each panelist started by saying something that was not quite responsive to the question. Only after some follow-up questions did our panel finally tell the audience how to displace a competent incumbent.

Let me start with the evasions, saving the real answers for the end . . .

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Inside Straight: No More Projects Named ‘Death Star’ Or ‘Piranha’!

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A couple of decades ago, a friend was defending a case that involved a corporate entity named “LHIW, Inc.” The case seemed defensible for a while. Then, during a deposition, opposing counsel thought to ask a witness what the heck “LHIW, Inc.,” stood for.

Suffice it to say that it’s tough to defend a transaction that involves a shell company named “Let’s Hope It Works, Inc.”

Ten years ago, a company was spinning off the piece of its business that was saddled with product liability exposure. The transaction would create one new, clean company and one tainted company that would spend its days defending itself or paying claims over time. Did the internal corporate documents really have to refer to the two new entities as “GoodCo” and “CrapCo”?

Why did I flash back to those memories? Because I recently ran across a situation where someone cleverly named an investment vehicle “SNP, Inc.” That was fine and good until someone thought to ask what “SNP, Inc.,” stood for. Naturally: “Should Not Participate, Inc.”

The more things change, the more they stay the same. But I have a proposal on this front . . .

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Inside Straight: Provide ‘Advance Praise’ For ‘Inside Straight — The Book’!

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I’ve relented.

Under extreme pressure from all quarters — well, my wife thought it was a good idea, anyway — I’ve committed to publish a compendium of “Inside Straight” columns in the form of a book. ABA Publishing tells me that, in June, you’ll be able to hold in your hands Inside Straight: [followed by a clever subtitle]! (This obviously remains a work in progress.)

I have two items of good news about the forthcoming book and two requests for your help. First, the good news: The book will not simply be about me; it will also be about you! In addition to reproducing a collection of my columns, the book will include assorted “comments” that you, my readers, have appended to my posts. The book will thus answer many of your burning questions: Do I read the comments? Will I reproduce in the book the nastiest of the comments? (That raises the obvious derivative issue: Am I a self-loathing lunatic?) When I choose which comments to publish in the book, will “Bonobo Bro” make the cut? Will “Concerned Pastafarian”? Find out the answers to those questions — and more! — in Inside Straight: The Book!

The other good news is that David Lat has agreed to contribute a foreword to the book. Whatever you think of the quality of my writing, you know that Lat can write. The foreword alone is worth the entire price of the book!

So much for the good news; now, the requests for your help . . .

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Inside Straight: Creating A Unifying Mind

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For every matter that we handle, we need one “unifying mind.” We need one person at the helm; that person must either personally know everything that’s happening in the matter or, at a minimum, know where the knowledge lies. (Extraordinary cases may be beyond the capacity of a single unifying mind and may require two or more. But those situations are exceptional, and they pose challenges beyond what I’m thinking about today.)

The unifying mind might be found anywhere in the hierarchy, depending on the type of matter involved. At a law firm, the unifying mind can be a partner, if the matter is large and the partner a hands-on type. Or the unifying mind can be an associate charged with monitoring and tracking all events. But everyone on the team should know who’s at the helm, so everyone knows the person who should receive copies of correspondence, alerts about upcoming events, and reports about how things are going.

At an in-house law department, we, too, must have a unifying mind for every matter. In the litigation world, a corporation may have several line lawyers whose job is to supervise cases on a day-to-day basis. The line lawyer primarily responsible for overseeing a particular case should typically serve as the unifying mind for that matter. Outside counsel should communicate with that person, and everyone in-house should know that’s the lawyer to call if they need detailed information about a lawsuit.

That’s all fine in theory, but two things often screw this up in practice. What two things?

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