Inside Straight

Last year, one of my columns explained how I went about developing a new practice at a large law firm. Now that ABA Publishing has repackaged some of my old columns as a book, I’m hearing new reactions to some of those older columns. One of my recent correspondents — a partner at an AmLaw 100 firm — raised a good issue about my column on business development. He gave me permission to crib from (and slightly revise) his long e-mail (without attribution to him), so that’s what I’m doing here:

“In your case study of business development, you ask whether the business development game is worth the candle. But you seem to presuppose that the game is really worth playing in the first place. My problem isn’t with the premise that if you want to develop business you must work hard at it and be lucky. My problem is with the assumption that the only goal worth achieving in law is success in business development. I think you are correct in saying that law firms under-appreciate business development efforts and over-appreciate business development successes. But I think they over-appreciate both compared to good lawyering . . .

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I recently participated in a podcast for the ABA Journal on the subject of what drives partners nuts. (Here’s a link to where previous podcasts can be found. The session in which I participated won’t be posted until September 10.)

Because the podcast was supposed to analyze “what drives partners nuts,” I naturally prepared a list of things that drive partners nuts. But when we taped this session, the conversation veered away from its original focus and covered other subjects instead. That leaves me with a list of the things that drive law firm partners nuts — perfect material for a blog post! And, because this column often focuses on life as an in-house lawyer, I’ll throw in an added bonus: the in-house analogues to the things that drive partners nuts.

How can an associate drive a law firm partner nuts? Let me count my top three ways . . .

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Law firm consultants have endless advice about how best to compensate partners at firms. The consultants analyze the extremes: Lockstep compensation avoids quibbles about pay, but it may reward less productive older partners at the expense of the young turks. Eat-what-you-kill compensation rewards people who bring in business, but may cause bitter fights over client origination credit or cause partners to hoard their clients.

Various permutations on those extremes have their own advantages and disadvantages. But riddle me this: Why don’t we see consultants debating the pros and cons of pure black-box compensation? Under this system, the managing partner (or a small committee) sets compensation for each partner in the firm. There is no specific formula for allocating the spoils, and partners are forbidden from discussing their compensation with each other. Each partner is told what he’ll make in the coming year (either as an absolute number or as a projected draw assuming the firm hits 100 percent of budget), and the process is over.

At least a few large firms use black-box compensation systems, so this subject surely deserves a moment’s thought. What do you think of a black-box compensation system — good, bad, or indifferent?

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Writing at Above the Law brings you fame, if not fortune: Two different groups (an ABA Committee and a CLE outfit) recently asked me to help design courses that would be irresistible to all in-house lawyers. These guys wanted me to pick topics for “must attend” programs — events that no in-house lawyer could afford to miss.

My first reaction was this: Are you kidding me?

If I’d stumbled onto the “must read” topic for all in-house lawyers, don’t you suppose I would have shared that insight in these columns? If I knew what everyone really wanted to know, would I still be filling my twice-weekly slot here at ATL with random musings and pontifications?

But my second reaction was better: Now, at long last, I’ve figured it out….

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At law firms, you only occasionally hear people criticizing lawyers for not “being proactive.” Maybe that’s the nature of the beast: When you’re a litigator at a firm, you’re always considering what moves to make, anticipating the other side’s responses, and planning several moves ahead. Being proactive is the name of the game.

But I often hear in-house lawyers either being criticized (or criticizing others) for not being sufficiently proactive. How can you prove to the world that you’re proactive?

There are two parts to this puzzle: First, you can create the illusion of proactivity. This takes no effort at all, and it will impress people. Do it! Second, you could actually be proactive. This takes a little effort; I’ll leave it to you to decide whether the game is worth the candle. But at least consider being proactive; you might enjoy it, and it might be good for your career . . . .

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Quick! I’m an in-house lawyer! How are my legal skills?

Admit it: You just thought to yourself, “So-so. The guy couldn’t hack it at a law firm and wanted a 9 to 5 lifestyle, so he took his mediocre skills and moved in-house. I’ll try not to be transparently condescending when I talk to him on the phone.”

I believed that, too, until I went in-house. (That was a joke. How do you put a smiley face on a blog post?)

A moment’s thought reveals that I’m a bundle of legal prejudices, and I suspected that others were, too. So I did a Rorschach test of some lawyer-friends. I named categories of lawyers, and I asked my friends to give their immediate reactions to those categories.

So what are our legal prejudices?

Quick! I’m a partner at a big firm! What do you think of me?

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You gotta love the reviewer who wrote of my new Inside Straight book: “What John Updike was to the suburbs, Herrmann is to the legal sector.”

Maybe you have to question her sanity, too, but you gotta love her.

Enough of that. Now, back to our regularly scheduled program:

Many lawyers at firms believe that in-house life is like the Elysian Fields — where “life is easiest for men. No snow is there, nor heavy storm, nor ever rain.” And, in some ways, those perceptions are right.

In one sense, however, the outside lawyer has it easy. He tells inside counsel: “The rule is X. Have everyone do X, and you will have complied with the law.” And then he goes back to reading cases.

The in-house lawyer is left with the hard part: How the heck do I get 100,000 employees, in 150 countries around the world, to do X?

In-house lawyers are often asked to operationalize rules, and it’s not always easy . . .

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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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We’ve done some hiring recently, and people seem to have three types of résumés.

Some résumés start with an “Executive Summary” that consists largely of the applicant explaining that the applicant believes that he (or she) is a great guy (or gal). I’m not quite sure how that distinguishes the applicant from the seven billion other folks who share this planet with us:

“A fast-paced, fast-track, high-falutin’ individual with exceptional interpersonal, communication, and persuasive skills, as well as boyish good looks and a toothy grin; who leads by example and coaches and develops others to deliver high performance; blah, blah, blah.”

To my eye, this is “telling, not showing.” You think you’re great? Wonderful. But, other than your own say-so, is there anything about you that might objectively indicate that you’re correct? Have you ever, for example, achieved something that’s worth talking about? If so, perhaps your résumé should find an excuse to lead with that.

Other résumés also start with an “Executive Summary,” but of a different type . . .

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Here’s something that never crossed my mind before I moved in-house, but it affects both the nature of in-house legal jobs and outside counsel’s relationship with in-house lawyers.

ParentCo has three business units: Gadgets, Widgets, and Muppets.

ParentCo will have a general counsel. Beyond that, however, ParentCo’s Law Department could be set up in one of two ways: (1) there may be three lawyers, one of whom is the chief counsel for Gadgets, one for Widgets, and one for Muppets, or (2) ParentCo may have a litigation counsel, an M&A counsel, and a contracts counsel, each of whom support all three business units.

In the first situation, the lawyers for the business units are generalists, helping their specific business units with whatever legal matters arise. In the second situation, the lawyers are substantive experts, helping all three business units with matters that fall into the lawyers’ areas of expertise. An in-house lawyer’s work environment turns in part on which structure the corporation’s law department uses, and outside counsel can better serve clients if counsel know how a law department is organized….

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