This column comes from a narrow perspective — that of a litigator and, in particular, an in-house head of litigation.
I suspect that in-house SEC lawyers, or M&A lawyers, may have entirely different perspectives on this topic. But as a litigator, I pay a lot of attention to briefs and other written work. Why is that?
Because I can.
When I was a partner at a firm, I’d let junior lawyers argue motions. For significant matters, I’d chat with the lawyers beforehand, to discuss how to approach an argument. But I almost never attended those arguments. Maybe I should have (for reasons of associate training and evaluation), but I generally viewed sending myself as an observer to be over-staffing an event. I thus rarely saw associates on their feet in court.
I also didn’t double-staff depositions. In mass torts (which was a lot of my practice, way back when), senior lawyers typically defended depositions, and more junior lawyers typically took them. This is partly driven by the nature of mass torts; in that environment, deposition defense is critical. If the senior VP of research and development gets her clock cleaned in deposition, that testimony will come back to haunt the client in hundreds of later cases. In mass torts, senior lawyers play deposition defense….
Sitting here in the catbird’s seat, it’s easy to criticize things that outside counsel do. (It’s not just easy; my hope is that it’s also worthwhile. When I was in private practice, I paid close attention when I learned about things that annoyed clients.) But we’re equal opportunity critics here at ATL. It’s time to turn my sights on myself: What do inside counsel do that works to our own detriment?
I haven’t heard much from my outside counsel on this score, perhaps because I’m the client, and outside counsel are reluctant to criticize me (to my face). And I don’t innately sense all the things that I’m doing that are grossly stupid. But I do remember a fair number of silly things that inside counsel inflicted on me when I was at a law firm, and I can work backwards from there.
There are many advantages to working for a corporation instead of a law firm: You learn a business from the inside out; work regularly with business people, rather than other lawyers; are spared the daily insanity of quibbling with opposing counsel about whether the deposition will be taken in Houston or Denver; can often avoid blowing up the week between Christmas and New Year’s because some clown dropped a TRO on your client on December 24; and on and on.
But it’s much too easy to write about that. So I’ve explored the other side of the coin: I’ve asked several litigators who recently went in-house what they missed most about private practice. I generally heard two things in response:
First: Many litigators enjoy litigating. A common refrain is this: “I miss doing it!”
“I can’t believe I have to sit in the back of a courtroom and watch other guys give opening statements. And over lunch, I’m just kibitzing from the sidelines, hoping the trial lawyers listen to my suggestions.”
Or, “There’s a huge difference between flying to Chicago to argue in the Seventh Circuit and flying to Chicago to watch your outside counsel argue. One is a real event. For the other, you call an old friend to set up dinner the night before, watch the end of Monday Night Football in your hotel room, and then roll down to the courthouse in the morning. Your pulse rate never goes above 60.”
If you love the spotlight (as many litigators do), you may not like stepping out of it. You may miss doing it….
When you interview for an in-house job as head of litigation, that’s what everyone — CEO, CFO, General Counsel — is likely to say: “All we want is to know in advance what’s happening. Don’t hit us with last minute litigation surprises.”
That characterization is only half true. Half the job is what you would actually expect, and why someone would actually pay money for a person to do this gig: Half the job is to minimize liability. That task, at least, requires a law degree and a little bit of skill.
But, remarkably, the other half of the job — avoiding surprises — is the aspect that seemingly draws the ire of the folks who run the joint. And that task is one that the kid down the block ought to be able to do with about fifteen minutes of training: How hard can it be to avoid surprises?
Piece of cake, right? Just track developments in all of the pending cases, estimate settlement values or likely verdicts, and flood the C-suites with information. Put together a calendar of every major event in every major case over the coming six months. Winning cases can occasionally be hard, but just tracking them? Nothing to it.
Remarkably, that isn’t true. There are five main reasons why it’s hard merely to track cases (and their values) and thus to avoid surprises, and outside counsel are responsible for three of the five….
I am a graduate of a T3 law school. I was on a law journal, successfully competed in moot court competitions (regional and national) and loved my clinical experience during my third year of law school. Basically, I love the courtroom, want to be a litigator, and have seriously been searching for a public interest job for a longtime. It just hasn’t happened yet.
However, recently I had the opportunity to interview with BigLaw. It’s a Vault50 firm, with an excellent reputation (like I need to say that). However, the offer I received was for a non-legal position, in the litigation support arm of the firm. The pay isn’t great, but it’s almost in line with what most new lawyers are making anyway (those who aren’t going straight to BigLaw from OCI). Is this a smart career choice? Does the networking opportunity outweigh the cons of the position? I’m just not sure if it’s smart to wait for a real lawyer gig, or take this position and run with it, and be the best non-lawyer I can be at the law firm. Thoughts, comments, advice?
Here’s an issue that outside counsel never think about, but that matters intensely to in-house counsel: How should you charge business units for litigation losses?
For some types of cases, this poses no problem at all. If a company manufactures a prescription drug and gets named in product liability cases involving that drug, it’s pretty easy to figure out which business unit to charge for resulting judgments. (At least I assume that’s true. Perhaps some reader who works in-house at a drug company can correct me if I’m mistaken.)
But think about negligence cases in the context of a service business. At first blush, charging for litigation losses seems pretty easy: The business unit that was negligent and caused the loss should be charged for any resulting judgment.
If only it were so clear. Think about the complexities here: Some clown at the business unit screws up in 2005. The company is named in a lawsuit that’s filed in 2007. The clown changes jobs and leaves the company in 2008. The lawsuit results in a $10 million judgment in 2010. How do you account for that $10 million charge internally?
Sometimes lawyers are rude — really, really rude. And when they get extremely rude in emails with one another, sometimes the result is discipline from the bar. So, counselors, please be polite; treat each other with courtesy and respect.
The importance of common courtesy is a lesson that Florida lawyers Nicholas Mooney and Kurt Mitchell learned the hard way. After they called each other some nasty names over email, charming monikers like “scum sucking loser” and “retard,” they both wound up getting disciplined by the Florida Supreme Court.
Let’s take a closer look at their crazy correspondence, shall we?
Here in New York City, the headquarters of Above the Law, we’re still dealing with the aftermath of the Great Blizzard of 2010. Check out our slideshow for some images (like the one at right).
Although the snowstorm ended on Monday, and it’s now Wednesday night, many streets remain unplowed and many sidewalks uncleared. Mayor Michael Bloomberg, generally praised for his tremendous competence, is taking a lot of flak for the city’s inadequate response.
And that’s just in terms of politics and public relations. Wait until the lawyers get involved!
What possible causes of action could arise out of the snowstorm? Let’s discuss….
This post is a two-fer: It both suggests a way for outside lawyers to develop business more effectively and offers a tip to in-house counsel to protect their legal departments. (I bet you can hardly wait.)
First, the business development tip.
Outside lawyers often ask whether in-house lawyers are annoyed or impressed by the brochures that firms mail (or e-mail) to clients and prospective clients. I, at least, am not annoyed to receive those things. It’s awfully easy to delete things unread, so they don’t exactly impose a burden on me.
But am I impressed by the brochures? Obviously not; that’s why I now typically delete them unread.
What’s unimpressive about the brochures? Let me count the things….
The holiday season is upon us, and yet again, you have no idea what to get for the fickle lawyer in your life. We’re here to help. Even if your bonus check hasn’t arrived yet, any one of the gifts we’ve highlighted here could be a worthy substitute until your employer decides to make it rain.
We’ve got an eclectic selection for you to choose from, so settle in by that stack of documents yet to be reviewed and dig in…
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past six years. You can reach them by email: firstname.lastname@example.org.
We currently have a very exciting and rare type of in-house opening in China at one of the world’s leading internet and social media companies. Our client is looking for an IP Transactional / TMT / Licensing attorney with 2 to 6 years experience. The new hire will be based in Shenzhen or Shanghai. Mandarin is not required (deal documentation will be in English) but is preferred. A solid reason to be in China and a commitment to that market is required of course. This new hire will likely be US qualified (but could also be qualified in UK or other jurisdictions) and with experience and training at a top law firm’s IP transactional / TMT practice and could be currently at a law firm or in-house. Qualified candidates currently Asia based, Europe based or US based will be considered. The new hire’s supervisors in this technology transactions in-house team are very well regarded US trained IP transactional lawyers, with substantial experience at Silicon Valley firms. The culture and atmosphere in this in-house group and the company in general is entrepreneurial, team oriented, and the work is cutting edge, even for a cutting edge industry. The upside of being in an important strategic in-house position in this fast growing and world leading internet company is of the “sky is the limit” variety. Its a very exciting place to be in China for a rising IP transactional lawyer in our opinion, for many reasons beyond the basic info we can share here in this ad / post. This is a special A+ opportunity.
If your firm is in ‘go’ mode when it comes to recruiting lateral partners with loyal clients, then take this quiz to see how well you measure up. Keep track of your ‘yes’ and ‘no’ responses.
1. Does your firm have a clearly defined strategy of practice groups that are priorities of growth for your office? Nothing gets done by random chance, but with a clear vision for the future. Identify the top practice areas for which you wish to add lateral partners. Seek input from practice group leaders and get specifics on needs, outcomes, and ideal target profiles.
2. In addition to clarifying your firm’s growth strategy, are you still open to the hire of a partner outside of your plan? I’ve made several placements that fit this category. The partner’s practice was not within the strategic growth plan of my client, but once the two parties started talking with each other, we all saw how it could indeed be a seamless fit. Be open to “Opportunistic Hires.” You never know where your next producing partner might come from, so you have to be open to it. I will be the first to admit that there is a quirky element of randomness in recruiting.
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