In-House Counsel

When you’re in private practice, people ask you tough questions. “During the proxy fight, a trial court held that our proxy statement was false and misleading. We settled that case, so that judgment is final. We’ve now been hit with a 10b-5 shareholder suit, and the plaintiffs have filed a motion saying that the earlier proxy decision is binding on the question whether our statements were false and misleading. How do we defeat that motion?”

Then you move in-house, and the question changes: “How can we reduce the cost of electronic discovery and document review?”

Oh, how the mighty have fallen.

But, when you’re forced to think for a minute about electronic discovery and document review, you realize that the battle previously waged between law firms and third-party vendors to capture this work is now largely over: Document review, which was historically an important profit center for large law firms, has moved permanently into the hands of third-party vendors. That sea change was not prompted by the recession, and things are not going to return to the old “normal” after the economy recovers. Companies that continue to rely on law firms, rather than third-party vendors, to do large document reviews are probably making a mistake, and law firms that are counting on document review projects to resuscitate their profitability are betting on the wrong horse.

Why?

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Albert Haynesworth III

Albert Haynesworth III

* Does your fledgling company need a full-time general counsel? Lance Levy lays out some considerations. [In-House Blog]

* Why is Marc Randazza “the most inappropriate man in the world”? Well, how many briefs have you filed with phallus-filled footnotes? (Say that last part ten times fast.) [Popehat]

* New England Patriots defensive tackle Albert Haynesworth pleads no contest to simple assault, averting a trial for misdemeanor sexual abuse. [ESPN]

* Looking for a job in legal academia? Get to know the members of the hiring committee! [PrawfsBlawg]

* “Federal Filing of the Day: Nebraska Man Says He Left Baylor With GPS Sewn in Armpit.” [Unfair Park / Dallas Observer]

Ashley Alexandra Dupré, Eliot Spitzer's former paramour.

* Eliot Spitzer gets hit with a libel lawsuit seeking $60 million. That’s worth how many hours of Ashley Alexandra Dupré? [New York Observer]

* Congratulations to Ted Frank and his colleagues at the Center for Class Action Fairness on their latest victory — which appears to represent “the first time the Ninth Circuit has vacated approval of a class action settlement since 2003.” [Center for Class Action Fairness]

* Elsewhere in the Ninth Circuit, justice delayed turns out to be justice denied for a prisoner who died while waiting over five years for a federal district judge to rule on his habeas petition. (The magistrate judge had already recommended granting relief.) [Los Angeles Times]

How much do other people have to know?

This question comes up in many different contexts, and answering it always requires a little judgment.

At law firms, the questions often involve what the partner or the client needs to know. These people are supposed to be kept in the loop, but that task may be trickier than it seems. You want people to be fully informed, but you don’t want to become a pest, constantly alerting people to irrelevant trifles. What’s a person to do?

The answer varies by many things, including the nature of the matter you’re working on, the compulsiveness of the person you’re working with, the degree of trust established between you and the person you’re working with, time pressure, and the like. To the extent it’s possible, though, let’s establish some general rules….

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I’m an idiot. I really am.

When I was in private practice, clients said that they instituted e-billing for reasons of efficiency: “We can process bills and pay you faster if you submit bills electronically. E-billing speeds the process for both of us.”

I knew that bills that we submitted electronically underwent some kind of review. It always felt as though it was review by chimpanzee, as clients seemingly whacked hours randomly, leaving us with the hard choice whether to remain silent or quibble about a few bucks here and a few bucks there. But fundamentally I accepted the basic proposition that e-billing improved efficiency.

Now I know better….

(Actually, I don’t really know much better. I added a provocative sentence followed by an ellipsis so that Lat would know precisely where to put the break for the “continue reading” icon when he loads this post into the ATL blogging software.)

Where was I?

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When I graduated from law school, I decided that I would take a job at a large law firm because it would maximize my chances of going in-house. I had no idea what either job would entail, but it seemed like a sensible plan. And, even without knowing what it would be like to be a litigation associate in Biglaw, I suspected it would be bad enough that an exit strategy would be necessary.

A few years later, I switched my exit strategy and went to a small firm. I decided that I could not wait for three to five more years to get the skills required to go in-house. So, I went to a small firm to get “hands on experience” and position myself for my new exit strategy: a federal government job. Then, hiring for federal jobs froze, and the few openings were impossible to get unless you had the exact experience required and could figure out your grade level. Consequently, I am currently reformulating my exit strategy. I am contemplating running for president or becoming a certified yoga instructor.

I have yet to meet a lawyer who did not plan or fantasize about his or her exit strategy from law firm associate, be it Biglaw or small. I blame it on the nightmare that is billing hours — even if the requirement might be less at some places. The most common exit strategies are (1) in-house and (2) fitness professional.

Is it possible, however, for a small-firm associate to go in-house, or is the small-firm associate required to follow my path and find a new exit strategy?

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Many prominent people, including Chief Justice John Roberts and Judge Harry Edwards, have raised their voices about the increasing irrelevance of academic writing to practicing lawyers and judges. Yet, despite railing at the academy, those judges — and law firms, and sophisticated purchasers of legal services — all rely on the academics to identify talented lawyers. Law schools brand the beef, and purchasers buy based on the brand. What do I mean, and why is that process natural and appropriate?

Let’s start with an example for people coming right out of law school: How should judges pick law clerks? One way — perhaps even the “fair” way — would be for judges to assume that each of the 45,000 people graduating from law school is equally likely to make a fine clerk. Judges would solicit applications from all 45,000 and then start the process of sorting the good from the bad.

That cannot work, of course. Judges don’t have the resources (or, necessarily, the ability) to study transcripts, read writing samples, conduct interviews, and do the other spadework needed to assess all of those candidates comprehensively. And judges can’t externalize the cost of the screening process; there’s no person or institution that would play that role for an acceptable price.

What are judges to do? They rely on law schools to brand the beef.

Rant as they may about scholars producing unhelpful scholarship, most judges rely essentially unthinkingly on those same scholars to have separated the potentially gifted lawyers from the crowd. Judges assume that the best students went to the best law schools; that, after arriving, the more talented law students outperformed the less talented ones; and thus that the best performers at the best law schools will make the best clerks. Judges typically pick their clerks from among the top graduates of the elite schools. Judges may think that professors are insane when they’re selecting topics for their scholarship and then devoting months to researching and writing on those subjects, but those same judges rely on the same professors to brand the beef astutely. Whatever criteria law schools are using within the asylum to rank their students, the outside world seems quite happy with it.

Is that fair?

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First, a shameless plug; then, back to business.

Law360 surveyed practicing lawyers around the country asking what books the practitioners would recommend for new lawyers –- the so-called “legal greenhorns.” (The Law360 article requires a subscription; this recent piece from the ABA’s “Young Lawyer” is free of charge and summarizes the results.) The recommended books for new lawyers included Shakespeare’s plays; Alexander Hamilton and James Madison’s The Federalist Papers; Harper Lee’s To Kill a Mockingbird; and Mark Herrmann’s The Curmudgeon’s Guide to Practicing Law (affiliate link).

That leaves only one question: Who’s that Shakespeare guy, and why’s he cluttering up my list?

But enough of that. On to today’s business. How do you bring an ignorant client up to speed?

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Silly things happen when no one speaks up.

The classic example was when General Motors chose to name one of its cars the Chevrolet “Nova.” In Spanish, “no va” means “it does not go,” which isn’t a great name for a car sold in Spanish-speaking countries. I’d bet that a few hundred Spanish-speaking employees of GM noticed that issue before the car hit the market, but no one bothered to speak up.

Let me offer two more examples of failing to speak up, with both examples coming at my own expense. (I wish I weren’t such an easy target, but such is life.)

The first example involves a law firm. Twenty-two years ago, as a lateral sixth-year associate, I accepted a job at Jones Day in Cleveland. I saw during the hiring process, and again when I sat down at my desk on the first day of my new job, that all of the firm’s promotional materials included the firm’s marketing slogan: “Jones Day: One Firm Worldwide.”

I’d been practicing law for six years at that point, so I was a relatively sophisticated lawyer, although by no means an old hand. Perhaps older and wiser folks looked at the tagline “one firm worldwide” and thought: “Terrific! I’m going to hire those guys because they’re one firm worldwide!”

But that wasn’t how it struck me. I sat there scratching my head: How many firms was I supposed to think Jones Day was? Two firms? Three firms? A half-dozen? And why was the apparent misperception — that Jones Day was more than one firm — so widespread that the firm devoted its main branding opportunity to dispelling this confusion? Of the many praiseworthy things that could surely be said about my new employer, why did the fact that it was only “one firm” top the list? Wouldn’t it be slightly more helpful to say, for example, “Jones Day: Pretty Good Lawyers”? Would the Jones Day slogan make sense for any other big firm? Would “General Motors: One Firm Worldwide” be a useful marketing tool? What the heck was going on?

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We ran a “request for proposal” process several months ago, asking a dozen law firms to make proposals for handling one aspect of our work. We interviewed five finalists, and we chose one winner.

One of the also-rans wrote to complain: “I’m terribly disappointed by the result of your RFP process. My firm is exceptionally talented in this area. We do precisely this same work for many other clients, and those other clients are delighted with our work. We indicated a willingness to be flexible on fees. I just don’t understand why we didn’t win this work.”

Ha! Observe the delusion of personal exceptionalism!

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* A federal judge in Kansas has given Planned Parenthood’s Abortionplex a new lease on life. [WSJ Law Blog]

* What? A former Supreme Court clerk who got passed over for a job at a law school? Nicholas Spaeth, who’s also the former state attorney general for North Dakota, is suing the Michigan State University College of Law, for age discrimination. [The BLT: The Blog of Legal Times via SBM Blog]

* Interesting thoughts from Scott Greenfield on making executions public. I certainly don’t oppose more-comprehensive coverage of the criminal justice system in general. [Simple Justice]

* Elsewhere in criminal justice news, should prisons be run on a voucher system? Dan Markel offers some thoughts on Sasha Volokh’s interesting proposal. [PrawfsBlawg]

* An interesting profile of Alan Gura, the celebrated Second Amendment litigator, by a fellow small-firm lawyer, Nicole Black. [The Xemplar]

* Hopefully this will all become moot after a deal gets done, but remember the Fourteenth Amendment argument for Obama unilaterally raising the debt ceiling? Jeffrey Rosen thinks a lawsuit against Obama would get kicked for lack of standing — or might even prevail. [New Republic]

* But Orin Kerr believes that a recent SCOTUS case might change the analysis. [Volokh Conspiracy]

* Howrey going to pay all the creditors? A lot turns on how some contingency-fee cases turn out, according to Larry Ribstein. [Truth on the Market]

* From in-house to the big house: former general counsel Russell Mackert just got sentenced to more than 15 years in prison for his role in a fraud scheme. [Corporate Counsel]

* Keep It Simple: a commendable theme for Blawg Review #313. [Patent Baristas via Blawg Review]

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