Inside Straight

When you work at a law firm, you must actually solve problems.

If you’re paid to win a case, you must identify the route to victory and develop the facts that take you there. (“They don’t pay us $15 a minute to lose.”) If you’re arguing an appeal, you must anticipate every possible question and figure out a persuasive answer to it.

There’s no place to hide and no one to whom you can push hard issues.

Not so in a corporation: If an issue is insoluble, just send it to the law department! That puts the matter to rest, and you didn’t have to figure out the answer!

Remarkably, I’ve seen this solution proposed not just by folks who work in-house, but by outside counsel, too . . . .

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First, thanks to Baker & McKenzie, DLA Piper, Latham & Watkins, and Ulmer & Berne, all of whom endured my “book talk” about The Curmudgeon’s Guide To Practicing Law when I was recently back in the States.

Second — and proof that my mind is navigating on its own — I recently paused to think about driverless cars.

I suppose that, if you lived (as I do) in a major city that may be road-testing driverless cars before January, you’d be curious about these vehicles, too. (You’d want to consider, for example, whether you should stay on the sidewalk, even if that means walking endlessly in a one-block circle for the rest of your life.)

And if you labored (as I do) in the insurance (or insurance brokerage) space, you’d be scratching your head about what might happen to your industry if billions of dollars of auto insurance premium vanished (or was spent by people other than drivers) overnight. Lawyers for insurers should be thinking about driverless cars.

So, too, should lawyers outside the insurance space. Do you do DWI defense work? Your practice area may not exist in ten years. Do you participate in automotive accident or product liability cases? The world may be about to shift under your feet.

And I’m just getting warmed up here. . . .

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I used to be smart.

I read cases. I ginned up clever distinctions. I examined witnesses and knew what the evidence said. I argued appeals. I wrote real, substantive articles.

I had interesting things to say about multidistrict litigation, class actions, and product liability defense.

I spoke at CLE classes — both to maintain my (and my firm’s) profile and because I had worthwhile things to say.

I coulda been a contender.

But that was then.

I’ve been in-house for nearly five years now, and I’ve become a fool. . . .

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I must have reached a certain age.

Within the last month, three different people have contacted me to say that they’re approaching retirement, so it’s time to start serving on boards of directors. These folks came to me (of all people!) to network.

By keeping my ear so close to the ground, I’ve discovered the new, new thing. And you’re in luck — I’ll share it with you!

Everyone’s getting old and thinking about retirement.

Or maybe I’ve buried the lede. Maybe hordes of baby boomers are now thinking about finding a part-time job that pays good money and keeps you entertained after you’ve stopped working full-time.

That’s not a bad strategy, really. If you’re industrious, you could serve on four or five boards, carefully analyze the board materials before each meeting, monitor the companies’ fortunes, contribute insights and ask tough questions during the meetings, and follow up after meetings in pursuit of the corporate good.

On the other hand, if you’re less industrious, you could show up for a few board and committee meetings every year, enjoy cocktails and dinner with the boys, sit like a cardboard cutout during the meetings, and pocket a few hundred grand annually for your efforts, . . .

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I’ve never met you, but I assume that you’re incompetent.

I realize that sounds a bit harsh, but it’s time someone told you the truth.

Some people assume that strangers are competent. One of my colleagues in our Law Department said to me recently: “Outside counsel says we won’t have much liability in that case.”

I naturally asked, “Is he right?”

She was shocked: “He’s a partner at a well-respected firm. We hired him. I assume he’s competent.”

That got us to talking. My colleague gives strangers the benefit of the doubt; she assumes that people are competent until they prove otherwise. I’m exactly the opposite: When I meet you, my working assumption is that you’re inept. Over time, there’s a chance you’ll convince me that I’m wrong. (But probably not.)

Why do I assume that all new people I meet are incompetent?

No, that’s too easy. Here’s the better question: Why am I right to assume that everyone’s incompetent, and why is that a helpful way to go through life?

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I never heard these words before I went in-house: “If you send something to a person above me in the hierarchy, then send a copy to me, too.”

Now I hear (or speak) those words all the time. And those instructions seem pretty easy to grasp.

Remarkably, a fair number of people don’t seem to understand what those words mean.

I offer this column for the benefit of in-house newbies, and in-house oldbies who don’t understand, and lawyers at firms who might want to consider whether these instructions make sense at law firms, too.

If you’re sending something to someone above me in the hierarchy, then send a copy to me, too.

Why?

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No, not that kind of chambers.

I’m in-house, so Chambers & Partners — one of the outfits that rates lawyers and law firms — sent me a free copy of their 2014 guide.

If you’re profiled in that book, you get to write your own (very short) bio. You get something like 50 words to convince the world to hire you. So what did one person, from the distinguished firm of Bigg & Mediocre, write? I’ll slightly alter the bio, to disguise the guilty, but you’ll get my point:

Charles Darnay has argued more appeals in the Second Circuit than any other lawyer at Bigg & Mediocre.”

This guy isn’t competing for business with other law firms; he’s trying to steal business from his own partners! His pitch is not: “I’m better than other lawyers in the world.” Instead, it’s: “I may not be better than most lawyers in the world, but at least I’m better than any of the other clowns you’ll find here at B&M.”

Very nice. But that’s not the best of it; Chambers conceals many secrets . . .

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Ambrose Bierce once said: “War is God’s way of teaching Americans geography.

Ambrose Bierce, Esq., would have said: “‘Business-friendly legal advice’ means telling the client that it can do illegal stuff.”

Bierce, Esq., would have been funny, but wrong.

It’s important for lawyers to give useful advice. But many lawyers, both in-house and out, don’t seem to understand this. I’ve recently seen (or heard about from others) senior folks in businesses or in-house law departments ask not to receive advice from certain lawyers: “Don’t go to her! She’ll just tell me that everything is illegal!”

Or: “Don’t go to that firm! They’ll give us some theoretical answer that we can’t possibly use, and we’ll end up having to figure out a solution for ourselves anyway.”

Those reactions (and those words) make sense to business people and in-house lawyers; clients need real advice, not self-defensive crap. But some lawyers — typically at firms, but occasionally in-house, too — don’t understand this. To help those folks, here are illustrations of what “business-friendly” (or the opposite; shall we call it “business-hostile”?) advice sounds like . . . .

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I’ve come under criticism recently, either expressly or implicitly.

I tell new lawyers to write in short sentences.

Very short.

My preferred writing style is “Modern American Snowplow.”

Others insist that I’m too strident. Mark Osbeck, who teaches legal writing at The University of Michigan Law School, has published a law review article (it’s the fourth one down) criticizing The Curmudgeon’s Guide To Practicing Law because my book over-emphasizes the need for short sentences.

I have two reactions. First, thank you! Let’s debate these issues in public! And, so long as you spell my name right, you’re doing us both a favor!

Second, I’m right, and you’re wrong! Why? Because I’ve never in my life reviewed the work of a new lawyer and thought: “This draft would be pretty good if only it used a bunch of longer sentences. The cure to what ails this brief is to add some complexity to it.” If you were honest with yourself, Professor Osbeck, you’d admit that you’ve never seen that, either. On the other hand, both you and I frequently see sentences that desperately need to buy a period. So what should we teach — the rule or the exception?

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In 1983, when I graduated from law school, essentially no one wanted in-house legal jobs, and people who worked in-house weren’t held in very high regard.

To the contrary: With few exceptions, in-house lawyers were viewed as failures. These were the folks who couldn’t succeed at real jobs. People went in-house because law firms wouldn’t have them; jobs with short hours, low pay, no challenging assignments, and no stress were the only available alternative.

That was not simply my narrow-minded perspective. It was the widely shared belief of generations of lawyers who came of age in the law before about 1990. I recently had a drink with the general counsel of a Fortune 250 company, and he (or she, but I’ll use the masculine) told me that he could never be a success in his father’s eyes: “My father was a partner at a major law firm. He was pleased with me when I clerked for a federal appellate judge, took a fancy government job, and later became a partner at a big firm. But then I went in-house, and he lost all respect for me. He wanted me to ‘succeed’ in the law — to try high-profile cases and argue important appeals. When I went in-house, he quickly decided that I was a failure, and there was never any chance that he’d change his mind.”

Although that’s a sad story, I’m pleased to report that, at least in the context of in-house legal jobs, Bob Dylan had it right: “The times they are a-changin’ . . .

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