In-House Counsel

Suppose your firm has one incompetent partner, and our joint has the misfortune to be working with that person.

This guy consistently misses important issues. He sends us briefs that read (as did one draft I recently received): “In response to ALR’s motion to dismiss the OC, [plaintiff] added an allegation in the FAC that . . . .” We comment, over and over again (as we did recently), that briefs on our behalf must be written in English, not gibberish. Even if you’ve set up short forms, no reader sees “OC” and “FAC” and thinks “Original Complaint” and “First Amended Complaint.” Use words, not alphabet soup.

To no avail.

We suggest that the partner include on the litigation team a gifted writer (because we’re too nice to suggest that the partner include on the litigation team “a lawyer who’s worth a damn”). But nothing ever changes; the partner never hears us. Confronted with an avalanche of criticism and suggestions, no law firm partner has ever said to us, “Why, thank you. Now that you mention it, I realize that I am in fact inept. To better serve your legal needs, I’ll replace myself with a real lawyer.”

No, no, no. Instead, the partner continues to send us bad briefs, making the same mistakes over and over, but seemingly thinking that we may not care the next time around. It’s Einstein’s definition of insanity: “Doing the same thing over and over again and expecting different results.”

Up to that point, the fault is the partner’s. But then I personally make two mistakes….

double red triangle arrows Continue reading “Inside Straight: The Mutual Menace Of One Bad Partner”

Caveat: I did not write the following dialogue. It is from the “comments” section of one of my columns where I mentioned I’d be writing about HIPAA and GLBA. Unfortunately, I cannot attribute the comments to the persons who wrote them, as they are anonymous; however they are quite apropos of today’s subject:

1) “I wish vendors would get it into their heads that indemnity for being sued on a confidentiality basis doesn’t cut it for financial institutions and other customers/clients that have affirmative obligations without being sued in the event of a breach of confidentiality.”

2) “I wish financial institution customers would get it into their heads that the ‘customer information’ they’re obligated to protect is not the sort of thing they would ever disclose to the vast majority of their vendors, and stop using their ‘affirmative obligations’ as a tool to cram unnecessarily restrictive confidentiality terms down the throats of vendors.”

Perfect. Those two comments capture the schism between vendors and customers when dealing with private financial or personal confidential information….

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Ed. note: This post is by Will Meyerhofer, a former Sullivan & Cromwell attorney turned psychotherapist. He holds degrees from Harvard, NYU Law, and The Hunter College School of Social Work, and he blogs at The People’s Therapist. His new book, Way Worse Than Being A Dentist, is available on Amazon, as is his previous book, Life is a Brief Opportunity for Joy (affiliate links).

I received an offer recently that I couldn’t refuse – an invitation from “legal search consultants.”

Headhunters!

They were having a convention and asked if I wanted to drop by, and, you know, say hi.

Vague images flitted through my mind – guys in suits dancing in a conga line wearing hats with silly horns…

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Yeah, I’m shameless, but I repeat: Oxford University Press has just published a great new treatise!

I recently popped open a box and held in my hands an advance copy of a new treatise published by Oxford University Press: Drug and Device Product Liability Litigation Strategy (affiliate link), by yours truly and my former partner at Jones Day, David B. Alden.

Popping open that box is the only compensation I’ll ever get for having written that book, because I’m no longer in the private practice of law (so I can no longer use a publication to try to attract clients) and I negotiated an advance payment to my firm (back when I was a partner at Jones Day) that basically guarantees I’ll never get any royalties from this project. That leaves as compensation only the joy of holding the book in my hands for the first time and the satisfaction of knowing that a few people will find the treatise to be worthwhile.

I’ve now held the book in my hands, so that little thrill is behind me. But the treatise is also worthwhile, and I’ll prove it….

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Are your in-house working hours recently rivaling the billable hours you thought you had permanently discarded? Is your workload getting way too heavy — i.e., it’s really getting difficult to watch Glee on a timely basis? Do you find yourself working on pretty much the same form of contract over and over and over and over and over and over and over, ad infinitum?

It may be time to take a break and evaluate the problem of Low-Value Work.

What’s Low-Value Work? It’s work that has three main characteristics….

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A close friend’s father passed away. He was 71, a retired school teacher and a great man. A man dying at 71 used to seem far off in my comprehension of time, but as I get older, it’s really not. I learned of his death the day after ATL had posted a story about a Morgan Lewis partner who died at his desk. That same night, Joe Paterno was fired, rightfully so, and part of a campus rioted.

All three men leave tremendous legacies in their own way. They worked diligently at their chosen careers, were long-time employees, and outwardly, at least, left behind loving families, students, mentees, and friends. (I know, Paterno isn’t dead, but he is finished). I was scanning through the comments following that ATL story, and was quite frankly amazed by how “gentle” the majority of the opinions were. Something about one of “us” dying at our desks just wasn’t worthy of snark. It was worthy of reflection….

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When we write briefs, we show — we don’t tell — the reader that we win. Thus, we do not tell the reader: “This case is barred by the statute of limitations,” which is mere assertion. Instead, we show the reader why we win: “The accident in which plaintiff was hurt occurred on June 1, 2008. The two-year statute of limitations therefore expired on June 1, 2010. Plaintiff did not file his complaint, however, until August 15, 2011. This lawsuit is time-barred.”

At trial, it’s the same routine: We do not simply assert in an opening statement or closing argument: “My client should win.” (Nor do we beg: “Please, please. My client should win.”) Instead, we present the facts, and we let the jury conclude from the facts that our client should win. Show; don’t tell. It’s more persuasive.

What’s the equivalent for demonstrating legal expertise? What should law firms write (and say) on résumés and in responses to RFPs to show, not tell, their competence? And, as in-house counsel, what questions should we ask to investigate whether a firm is blowing hot air (which is what “telling” permits) or may actually be competent (which is what “showing” may suggest)?

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I’m one this week! Happy birthday to me!

Though it feels like only yesterday, I published my first column at Above the Law on November 18, 2010. I’ve published two posts every week since then (except when Monday holidays excused my labors), so I’ve cranked out about 100 of these little ditties over the last 52 weeks.

I’m tired. But I’m one!

How can I celebrate?

It seems like a good day to reminisce. What did I do right over the last year? What did I do wrong? And what have you, my readers, contributed that I can share with the world on this, my happy day?

Let me tackle the issues in that order….

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So, the Customer wants you to take on unlimited liability for breach of confidentiality, indemnify (and hold harmless) for any and all bad acts of your employees, and to carry a multi-million dollar insurance policy. What do you do?

First, begin by triaging these from simplest to more complicated. During a negotiation it can be helpful to appear to “give” as much as possible up front when you’re down to a few points. This way, when the final hot button items arise, you appear reasonable.

Insurance requirements are usually no-brainers, and as long as the amounts demanded are not grotesquely high, your Risk folks will approve the proposed language with very light editing, if any. Today, it is also not unusual for the Customer to demand to be named as a payee in the event of a loss; this is often fine, and usually not an issue. More practice pointers, after the jump….

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In this column, I’m presenting you with a gift: I’m ghost-writing for you a law firm brochure. I hereby grant all copyright interest in my brochure to you. Feel free to reproduce the following brochure, print it up, attach your firm’s logo, mail or e-mail the brochure to clients and potential clients, and wait for business to beat a path to your door.

It’s yours, free of charge, courtesy of Above the Law and yours truly. Don’t say we’ve never done anything for you….

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