Business Relationships

Ed. note: This is the second column in a series by Anonymous Partner focusing on the issues facing women in the legal profession. You can read the first column here.

Biglaw partners sell their time and attention to clients who want legal help. Partners devote plenty of thought and attention to the mechanics of selling — the how, the what, and even the why regarding client’s selection of counsel. Biglaw firms rightfully obsess about these issues, spending untold sums on robust marketing departments, consultants, and the like, in the hopes that their partners will magically all become rainmakers (or at least adept “cross-sellers”).

But while the how, what, and why of rainmaking get a lot of attention, there is a glaring lack of attention and discussion of the “who” — as in, who are the people making the decisions to purchase the gold-plated services offered by Biglaw. You would think determining the profiles of your target customers, and targeting sales approaches accordingly, would be an important endeavor for a professional-services outfit. You would also think that Biglaw firms would discuss with their current and future rainmakers strategies for appealing to various types of purchasers of Biglaw services. Neither of the Biglaw firms I have been a partner at have done so — at least when it comes to adopting different approaches to pitching female in-house counsel. I would bet my experience is typical.

What does this have to do with “Biglaw Lady Issues”? Easy. While the statistics tell us that women — in part because of the challenges posed by the timeline I discussed last week, among other factors — are not really moving the needle much in terms of becoming Biglaw equity partners, there is no doubt that they are entering Biglaw in substantial numbers, and leaving to take in-house positions — again in substantial numbers. As Old School Partner reminded us, Biglaw is within a lifetime of being a “men’s only” club. Those days are over, as are the days when someone like Old School Partner could build a firm of men selling to male-run businesses with exclusively-male in-house counsel. But nobody really talks about the impact that the increasing number of female in-house counsel do (and should) have on Biglaw marketing efforts and client retention. Seems crazy that this is the case….

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For those ignoring the unemployed “future of law” idiots typing away from their kitchen table in some crap city with a regional airport and instead still living in the universe where you believe practices can be built and survive on the referrals of others, I have some advice on maintaining your referral base. Some good stuff here, so keep reading if you actually practice law and have to bring in business instead of living off the originations of lawyers who people actually hire.

A referral base is sometimes, but not always, a two-way street. This is where honesty comes into the equation. There may be a lawyer who refers you business, to whom you would never refer business. There may be those lawyers who refer you business, but you have never had the opportunity to send them any. On the other hand, there are those lawyers to whom you send business, who haven’t sent you anything.

Referrals from other lawyers happen for two reasons, either the lawyer is your BFF, or because they know your reputation in the practice area. Sad news for some of you, your reputation, as I’ve said before, is not based on how many people have accepted your begging them invitation to write online testimonials about you….

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Last week, I wrote about how gossiping at the office can indicate that you’re in dire need of soft skills training or may be a pathetic, passive-aggressive coward. Or, more likely, both. After I submitted the post to ATL, David Lat (aka The Legal Gossipmonger Grandmaster) reminded me that hey, gossip can be positive too! The Grandmaster was absolutely right, of course, as my article had really only focused on the type of gossip where people whine and complain about their coworkers.

I thought, hmm, true — gossiping at work can definitely have a positive impact on you if you’re gaining information that will be useful to you on the job. Like finding out about which IT dude won’t treat you like the complete tech idiot that you are. Thanks to one of the commenters, I decided to dig a little further into what some of the other positive effects of gossip could be. And I was surprised by what I learned….

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So, OMG you seriously haven’t heard that Brittany likes Mark, but Mark likes Claire even though he’s flirting with Brittany? Yeah, Mark — the guy who’s so dumb that the last time he cheated on a test he still failed… I know right, he’s so hot!

High school gossip can cover many aspects of life. Sometimes the chatter is about school and tests. Sometimes it’s about who got invited to the cool parties and got sick on the street later. But most often, it’s about juicy dish. (Kind of like ATL, pimply puberty-style, except… hmm, never mind, it’s just like ATL.)

In-house gossip is thoroughly less satisfying. It’s more about who ticked off whom a couple of years ago, who’s slacking off and getting away with it when the rest of us can’t, and who could vie for the gold if kissing up to senior executives were an Olympic event. The juicy stuff that I used to get wind of once in a while from law firm peers seems rare in an in-house setting. Little did I realize that I was giving up such a quality of life factor when taking this job. People really need to give you a heads up about these things.

Seriously though, kids who gossip in high school are immature. But, well, that’s just about everybody in high school, so it’s all good. (The mature ones are the weirdos — avoid them like the plague, high school kiddies.) Gossiping at work, however, is viewed as less acceptable and is instead indicative of needed soft skills improvement…

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In Proof of an External World, G. E. Moore famously defended the concept of certainty: Moore could put his hand in front of his face and say (with certainty): “Here is a hand.”

Ludwig Wittgenstein disagreed. Wittgenstein was uncertain whether he knew — with certainty — that the hand in front of his face actually existed. The first sentence of Wittgenstein’s On Certainty reads: “If you do know that here is one hand, we’ll grant you all the rest.”

(Hah! You thought you came to Above the Law to read about bonuses and pictures of naked judges. It turns out that we’re epistemology through and through. But I digress.)

On three recent occasions, I’ve heard (or heard of) people asking, “Are you sure?”

I’m with Wittgenstein on this one: I can’t even tell you that “this is my hand,” for heaven’s sake; how dare you ask if I’m sure about a legal judgment?

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According to George Will, “Pessimism has its pleasures. Ninety percent of the time you’re right, and ten percent of the time you’re delighted to be wrong.”

That’s how I go through life.

What made me a pessimist? Nature or nurture, perhaps? (Should I blame my parents’ genes or their parenting skills?) Decades defending litigation, which forced me perpetually into a defensive crouch? (If that’s the reason, then plaintiffs’ lawyers must be optimists.) Or my preferred explanation: Keen observation of reality, coupled with endless experience, naturally breeds pessimism.

As an outside lawyer, my pessimism meant that I presumptively expected the worst (or, at a minimum, the least) from colleagues, opposing counsel, clients, and courts. Those folks generally performed precisely to my expectation, reinforcing my pessimism.

As an in-house lawyer, how does pessimism infuse life?

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If you’re an attorney in a mid-sized or large law firm, the phrase “people manager” means as much to you as the phrase “spring bonuses” means to me (both of which situations are exceedingly unfortunate). You’re lucky to receive support from a group of under-appreciated administrative assistants, paralegals, and attorneys junior to you. The group supports other attorneys besides you, and in an ideal world, each such attorney would take efforts to manage and train the group.

But, since such things as Dewey puns exist, we obviously aren’t living in an ideal world. In this stark reality of pink slime and the Socratic method, what usually happens in a shared support situation is that some attorneys take the time to train the support group, and others don’t.

Here’s the thing. The attorneys who invest the energy to train the group members don’t end up reaping the full benefits of their investment. This is because the employees they’ve specially trained spend an annoying amount of time engaging in behaviors like supporting other attorneys. So the lazy lawyers at the firm receive an “unjust enrichment” of sorts — they gain the benefits of working with skilled employees, yet they haven’t expended any effort to impart those skills. In fact, the more you spend time training someone, the more likely it is that others will seek that person’s assistance, and that you’ll need to compete for the employee’s support. “D’oh!” would pretty much capture the appropriate response….

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Business relationships are kind of like marriages. In the beginning, everyone’s excited, and life is fresh and full of promise. “Things are really going to change around here,” you think. You know that you’re going to need to make some adjustments, some compromises, but it’s all going to be worth it. You ignore small warning signs, such as the fact that your partner sometimes seems to spend a lot on discretionary items. (But at least he only bought nine pairs of Prada shoes during the trip to Italy instead of the 23 he really wanted.)

Then, as you settle into a routine, you may find that, well… things aren’t exactly as you had expected. There are minor annoyances — things that make working together take more time, communication, and effort than you had thought.

And unfortunately, like some marriages, one or more parties figure out that the benefits of the relationship don’t outweigh the negatives, and decide to part ways. You decide that 18,000 pairs of designer shoes is definitely an indication of a problem. Sometimes, the decision to separate is fairly mutual. Other times, one partner is desperately clawing out from under a pile of fancy footwear that the other only continues to build up.

Also like many marriages, at the start of the business relationship, nobody wants to think about how it will end. Ninety-nine percent of engaged couples won’t touch a prenuptial agreement with a ten-foot pole because they absolutely KNOW that they’re truly in love, and no way are they in the group of the more than 50% of married couples who will part before death.

Similarly, nobody likes to think about the business “prenup” (i.e., the termination/transition provisions in a contract) for more than a few microseconds. For example, there’s the uber-lazy version of a catchall survival provision that makes it into some contracts. It basically says as follows: “Everything in this agreement that’s intended to survive termination will survive”….

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