I wrote last week about ideas to build a book of business. My main point was to start small and branch out from there. I mentioned how, as a young and naïve (ok, ignorant) associate, I was quickly disabused of the idea that I would soon be able to waltz into Pfizer and pick up some strands of litigation.
Then I received the following email in my Gmail account. It is a well-written counterpoint to my argument. A partner in New York City argues that starting small is a recipe for staying small.
In this new year, since there have been several columns of late of the “confessional” type, I thought I might join the bandwagon. Since the overwhelming majority of inquiries from readers regard how best to market themselves to start to build a book of business, let me tell the truth: you can’t. At least not through me, or anyone in a position like mine.
I just passed my fifth year anniversary with my company, and in that time period, I have assigned a relatively low five-figure amount of work to outside counsel. And of that amount, only a small portion went to a former colleague in my network. The rest went to counsel from a list of approved firms for particular regions of the country. My intent is not to depress you, senior associates who have just realized in 2013 that you really don’t have a book to speak of, it is to get you to read between the lines.
In other words, find the differences from whence I speak, and fill in the holes. Those spaces in between are where opportunities exist for you to start to gain your own clients….
It’s the most wonderful time of the year. Bull and S***. If you’re not slaving away trying to get last minute billing hours, you’re slaving away trying to support a crazed population of folks trying to meet year-end sales numbers. It has been a difficult year, at best, for business. Heck, even Apple was downgraded to neutral yesterday. So, here comes the push.
The push is to close every deal possible, no matter the amount, no matter the risk, by 11:59 p.m. on December 31. But our job is to stanch the flow of craziness, is it not? Stay with me here — I am not allowed to collect commission due to a conflict of interest, yet every dollar that boosts our revenue, and thus our numbers for Q4, goes toward the bonus pool from which I directly benefit. If our end of year numbers are strong enough, the analysts punch our ticket into the new year and my options’ value rises. I may be dense (just ask my wife), but I fail to understand the difference from a commission-based return, and a bonus- or option-based return. The end result is the same, is it not? A benefit is conferred upon me based in part on my participation in the process of my sales-side corporation. But I am expected to “push” back.
I cannot, for real reasons, as well as flippancy, express some of the nuttiness that goes on at this time of year. Risks are taken akin to jumping from the high dive toward a half-empty deep end in the hopes that the water will be there in time. And it always ends happily with a splash. But, the troubling aspect to me is this incongruent fallacy of ethics. I am ethically bound to zealously represent my corporation, and at the same time, I am representing people whose very careers are at stake. I am well aware of the order of precedence there, but practically speaking, that line becomes blurred at this time of year, and frankly, I find it to be unsettling to be forced to live a legal fiction….
I often tell the story of my first assignment as a summer associate, to draft a one-page complaint. Two hours later, the assigning partner checked on me and saw that I was still stuck trying to get the index box to align. Shaking his head, he showed me the magic of the firm document library, and the “secret” of cutting and pasting necessary language. Chastened beyond belief, I vowed to avoid reinventing the well-worn wheels of documents. However, once in a while, reinvention becomes a necessity, as the “same old same old” becomes vestigial, and if you cannot coherently answer “why” you are utilizing some form or other, maybe it is time to examine the wheel treads for wear.
Look at the following indemnity clause and decide for yourself how many changes you might make:
[***] at its expense, will defend indemnify, and hold harmless Customer, its parent, subsidiaries, affiliates and their respective members, partners, shareholders, employees, officers, directors, managers, agents and representatives against any and all claims, damages, liabilities, losses, actions, government proceedings and costs and expenses, including reasonable attorneys’ fees and disbursements and court costs (collectively, “Losses”) arising out of, resulting from or relating to [***].
I would remove “hold harmless” and “shareholders,” and limit “any and all claims” to “any and all third party claims”; let me tell you why….
It is that time of year when the treacle runs thick. Nostalgia can lead to the blues that can lead to a bout at P.J. Clarke’s that leads to a pounding head in the morning. Conversely, some of you are full bore into booking hours for end of year bonuses and have no time for such shenanigans. Then there are the lucky among us who are given money simply for having jobs — starting with Cravathians and the imitator firms. If you are one of those, good on you; there is no bitterness here — envy, perhaps — but not bitterness.
As I began to outline this week’s column I was alerted to some truly distressing news: Dave Brubeck has died at 91. If you had the pleasure, as I did, of hearing Mr. Brubeck in person, you were touched by the presence of an American treasure and true musical genius. Even if you’re not familiar with Brubeck’s music, his signature piece, “Take Five,” would likely be instantly recognizable. Brubeck was an inspiration for his artistry, yet was a self-effacing and quiet individual. When I was fortunate enough to see him perform, he ambled ever so slowly to the microphone to say a few words. One was concerned the man would topple over given the frail nature of his shuffling. After saying a few words, he’d shuffle back to his piano stool and the power of some greater being would generate through his fingers. He seemed like a man that you would wish for in a grandfather. Of course, news broke today that Charles Schulz had an ongoing affair, but I digress.
The point is that there are some folks who just exist on a different plane from the rest of us, and whom, for better or worse, we treat as heroes. The same can be said of several attorneys in my career. I am certain that each reader could submit their own list of attorneys who have mentored, assisted, helped up, or just been there for us as young bucks as we made our way through the profession….
It is that time of year when “A Christmas Story” begins to play on the endless loop left vacant by the old WPIX yule log. The scene I refer to is when Scut Farkus tortures Flick by turning his arm behind his back and forcing him to say “uncle” until Scut and his yellow eyes have had enough. Then he and his toady, Grover Dill, retreat back under the rocks from whence they came.
The Scut Farkuses of the in-house world are thankfully very few and even farther between. Usually, there is at least a façade of collegiality between different counsels representing their respective companies. Sometimes, this collegiality becomes real, and drinks are shared as deals are closed. But, yes, Virginia, there is a Scut Farkus Society.
They are the barely competent; just enough to be dangerous, and they usually somehow hit the lottery and work at uber-corporations whose money we as a company desire. As a vendor attorney, there is always a bit of kowtowing to the purchaser. Sometimes it’s a cultural necessity, but more often than not, it is a factor of needing the business. But everyone has a breaking point, yes, even me….
I am guessing that approximately six people will read this column. That’s down from the usual nineteen, and it is because this is the day before Thanksgiving 2012 — the Last Thanksgiving if the Mayans were right, and just another day gorging on turkey with the family if they were wrong. Since so few of us are toiling away today, I want to give thanks for some things, and to some people, instead of writing another piece on in-house life.
First, thanks to David, Elie, and Staci. It has been an adventure writing for you. I used to read this site every day, and enjoyed it more often than not. I am sure that one day we’ll meet face to face and share some cocktails, discuss open-toed shoes, and admire Staci’s weight loss and wedding ring.
Thanks to the other writers on this blog, especially Tom Wallerstein and Mark Herrmann. Among the other writers here, those two consistently cause me to attempt to step up my game. That is the mark of good writing, when you strive to write as well as those whom you admire.
Thanks to the Commentariat. I am inspired and chastened by your (sometime) wit, and disgusted by your depravity. However, and I mean this sincerely, you are like the hordes in the pit of the Globe theater, ready to throw waste or snark on a moments notice — sometimes deservedly so, and sometimes with good humor. I hope you find jobs, and that the Internets always remain anonymous for you….
I have borrowed the Boy Scout motto because I am involved in a complex cross-border transaction. Yeah, I am not kidding. I am using today’s column to point up the importance of in-house counsel being involved in a difficult deal as close to inception as possible.
Usually, the field calls when there is an approval needed for some non-standard language, or a review of a legal concept is required. At this stage in a deal, the parties are well on their way to completion, and some legal issue has arisen. But, in a complex global agreement, there are numerous variables that one must remain on top of from the start. Foremost is an understanding of the deal itself. A very close second is an understanding of what exactly the Customer is expecting, having awarded an RFP to your company.
RFPs are quirky animals, rife with opportunity for miscommunication or differing interpretations of answers. The field has prepared its response in reaction to the knowledge that several competitors are bidding on the same deal. And we all know that field ops are known for their lack of puffery and straight arrow responses to questions like, “Can you deliver X in Dubai on a single day’s notice?” Not to denigrate field ops, but the answers are always, “Yes, yes, a thousand times yes,” setting the Customer’s expectation at such a high level, that when it comes time to actually negotiate Ts and Cs, you, in-house lawyer-person, are going out to some very hungry wolves….
I have to start by saying that the more Karl Rove tried to get the anchors to listen to him, the more he sounded like Milton desperately trying to hold on to his red stapler. Of course, that incident in “Office Space” didn’t end so well for the Initech building, but I digress. In any event, it is over — until Monday, when the cycle starts back up again. The most poignant moment for me last night was sharing a Garbage Plate with my son, who will be about to obtain his learner’s permit when the circus next comes to town. My prediction for 2016: Clinton in a landslide victory.
It is with optimism that I look forward to the close of 2012 and Q4. Business has been picking up and there are signs that the slog of economic momentum might continue to gain traction, and no matter your politics, you had better hope so. We all need each other right now, and not in a Kumbaya sort of way. Biglaw feeds off corporations, and corporations (who are people, too) require economies on local as well as global scales to continue to improve. But, as we see in parts of Europe, improvement is relative.
It could be catastrophic for even a single country to flounder, and the tenuous assistance being offered by stronger economies cannot last in perpetuity. Besides, I believe there’s a rule against that. Asia seems to be faring well, and will be a focal point in the next four years. Anyone who believed the blather from both candidates about “punishing” China needs to hear this — bull and sh*t. We rely so very heavily on China for its labor, imports, and other benefits, and China is so very deep into our economy, that any show of judicial force or otherwise is just that, a show….
It drives me crazy that my kids had “Harvest” parties at school today. Harvest what? It’s Halloween for Chrissakes. Every calendar in the office here says it’s Halloween. It is not Harvest Day, and believe me, with the reduction of old-time husbandry and the growth of corporate farming, it is difficult to envision ConAgra holding a Harvest Festival. Anyway.
I am not in a good mood of late. The hurricane has really put a damper (seriously, no pun intended) on the spirits of a lot of folks in the Northeast. Spare me the “it’s about time New York got its comeuppance” crap; this is serious stuff. Politically savvy or not, when Chris Christie starts praising Obama and FEMA with apparent sincerity, you know that stuff just got real. For us in Western New York we had a crapload of leaves to shovel; first world problem, I know. You almost feel an embarrassment of riches when you have a sore back from yard clean-up and many people have no home to clean. But, Springsteen postponed his show here from last night until tonight which is a blessing, so there’s that. And my kids are going to be done trick or treating and in bed before the first notes of “Badlands” ring out.
But I digress. This is a Halloween post, and I should have some scary stuff to discuss….
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 seven years. You can reach them by email: firstname.lastname@example.org.
It’s that time of year again when JDs are starting to apply for 2L summer jobs and 2L summers are deciding which practice area to focus on.
For those JDs with an interest in potentially lateraling to or transferring to Asia in the future, please feel free to reach out to Kinney for advice on firm choices, interviewing and practice choices, relating to future marketability in Asia, or for a general discussion on your particular Asia markets of interest. This is of course a free of cost service for those who some years in the future may be our future industry contacts or perhaps even clients.
For some years now Kinney’s Asia head, Evan Jowers, has been formally advising Harvard Law students with such questions, as the Asia expert in Harvard Law’s “Ask The Experts Market Program” each summer and fall, with podcasts and scheduled phone calls. This has been an enjoyable and productive experience for all involved.
Whether you’re fresh off the bar exam or hitting your stride after hanging a shingle a few years ago, one thing’s for certain: independent attorneys who start a solo or small-law practice live with a certain amount of stress.
Non-attorneys would think the stress comes from preparing for a big trial, deposing a hostile witness, or crafting the perfect contract for a picky client.
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