Inside Straight

I’ve now written more than 250 columns at Above the Law; I’m invoking a point of personal privilege.

Neil Falconer (of Steinhart & Falconer in San Francisco) passed away last week at the age of 91. He was an extraordinary lawyer, a fine man, and a mentor to anyone who had the sense to listen. Between 1984 and 1989, I learned from Neil what it meant to be a lawyer – “be a sponge; soak up the law;” “never tell a small child not to stick peanuts up his nose;” “you take as long as necessary to solve the problem; let me worry about the bill” – and I later dedicated The Curmudgeon’s Guide to Practicing Law to him. I expected to shed a tear when I read his obituary, but I didn’t expect to be dumbstruck. Words are a terribly feeble way to encapsulate a life. And sometimes you’re paid back, years later, for even the smallest of gestures. Here’s a link to Neil Falconer’s obituary in the San Francisco Chronicle. Rest in peace, Neil. And thank you.

Thinking about Neil caused me to reflect on the decision that I made, 30 years ago, to work at a small firm (of 20 lawyers) on the West Coast.

Everyone told me that I was nuts: “You can always move laterally from a big firm to a small one, but you can’t move laterally in the other direction!” “You can always move from a big New York firm to a firm in California, but you can’t move west to east!” “You have to start by getting the ‘big firm experience.’ Then you can always move to a small firm.” “Go to a big firm! That’s how you keep your options open!”

The conventional wisdom isn’t always right . . . .

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I recently had dinner with the dean of a law school. To give you a sense of this person’s perspective, I’ll say that he (or she, but I’ll use the masculine) is responsible for a law school that U.S. News ranks somewhere between 50 and 100. His school has thus been hammered by the Great Recession and the decrease in applications to law school, but the school is not (yet) thinking of turning out the lights.

I didn’t actually pry into what was happening at his school. He simply volunteered that his life was far different now than it had been a very few years ago. I guess that’s no surprise, given the tumult of the times.

Anyway, what are law school deans doing these days?

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Meetings — you gotta love ‘em.

Especially if you go in-house.

I didn’t appreciate it before I moved in-house, but law firms are remarkably meeting-free. I suspect this is for three reasons: First, law firms are not public companies, so they aren’t obligated to perform many bureaucratic tasks the law imposes on public companies. Second, most law firms bill by the hour; when time is literally money, few people tolerate non-productive meetings. Finally, law firms have flat organizational structures. Although partners cooperate to varying degrees within firms, partners (or, at a minimum, partners who generate business) are largely independent actors. A partner is retained for a new piece of business, assembles a team to handle the work, and starts working. The team is typically fairly small (two or three lawyers are plenty to handle most legal matters; a team of 25 lawyers is large, even at a big firm; a team of 100 means you’re defending the largest of the mass torts). There’s no real organizational structure within the firm. A partner in charge of a practice or an office may technically oversee another partner’s work, but “oversight” in that sense means only making sure the partner’s bringing in enough business and billing enough hours. “Oversight” does not mean, for example, having weekly one-on-one meetings with the partner to manage his performance; no senior partner would stand for that nonsense (and waste of time).

Corporations are different. They’re publicly traded. They’re often much larger than law firms. They’re divided into operational divisions with pyramidal structures, with many people reporting to fewer people who report to fewer people still who report to someone near the top. Put that all together, and it means meetings. And meetings. And meetings. And meetings. In fact, to my eye, there are four types of corporate meetings . . . .

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Am I wrong to be suspicious?

I knew a defense lawyer whose online bio said that he had “spent more than a year of his life in trial.” But I also knew the facts: He had tried precisely one case in his life; it lasted more than a year; at the end of the year, the jury awarded more than the plaintiff demanded in closing argument.

Despite having spent “more than a year of his life in trial,” I’m not certain he was a proven trial lawyer.

Google the words “consummate trial lawyer” or “quintessential trial lawyer” or the like. (The actual bio may use a synonym to those superlatives; I’m concealing my victim here.) One bio will pop up from a guy who has, in fact, tried a few cases. But he lost them all. He hasn’t secured a defense verdict at a jury trial since the early 1980′s. (He did manage to reverse on appeal several of his trial-level defeats, but I’m not sure that’s too comforting to someone who’s looking to retain trial counsel.)

These examples, of course, come from the guys who are being honest: The words contained in their bios are technically true. I’m not even talking about the folks who brazenly lie.

Given the skepticism that puffery breeds, how can you write an online bio that actually persuades a reader?

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I don’t do politics in this column.

For two good reasons: First, Lat asked me to write about life as an in-house lawyer or, at a minimum, an in-house lawyer’s perception of outside firms. If I wrote about politics, I’d be way off the mark. Second, I work at the world’s leading insurance broker for law firms. If I wrote about politics — no matter which side I took — I’d offend half my readers. Some of those offended readers would complain to their brokers, and I’d soon have a phalanx of brokers with pitchforks storming my office door.

But I’m throwing caution (and Lat’s instructions about topicality) to the wind today, and I’m posing a question that struck me recently: Set your mind back to 1983, the year in which I graduated from law school. Suppose, in 1983, someone posed this question to you:

Look into the future. When will each of these events occur? (1) We’ll elect an African-American President of the United States; (2) states will begin legalizing gay marriage; and (3) states will begin legalizing the use of marijuana. Which will occur first, second, and third, and in what years?

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Remember the pushmi-pullyu?

It can teach you a lesson about the law.

Years ago, I heard the frustrated 60-year-old head of an IP department at a big firm complain: “Aren’t there any other IP lawyers at this firm? Why do I have to decide everything?”

The problem, of course, was that his subordinates were on the wrong end of the pushmi-pullyu: They were pulling the senior guy back instead of pushing him forward. My sense is that the average lawyer, either at a firm or in-house, suffers from the same affliction: The average lawyer stands at the . . . er . . . back mouth of the beast.

I recently published a self-assessment test to help you learn whether you were a bad litigator. I’ve cleverly designed another self-assessment test, this one to gauge whether you advance the cause or obstruct it when you work on a legal matter. Here’s the test:

Look at the last email that you sent reporting on a legal development and seeking guidance on the next step forward. How does that email end? For many of you, the last sentence includes one of these two phrases, which prove that you stand at the pullyu end of the beast . . .

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I took the title of this column from Aristotle: “Young men are easily deceived, for they are quick to hope.

But I’m really thinking about business development and, as I often do in my navel-gazing columns, simply using myself as a case study.

I graduated from law school in 1983 and published my first article (in California Lawyer) in 1986. (I’d provide a link to the article, but I’m afraid the internet didn’t exist way back when. The article was a thriller, though; trust me: “Reviewing the Unreviewable: Obtaining Appellate Review of Federal Trial Court Remand Orders.”)

Because I was a young man, I was quick to hope: I’d published an article! My phone would naturally start ringing off the hook within the next few weeks! I’d be deploying my novel thesis in cases left and right, and the partners at my firm would be dumbstruck by my ability to develop business! Life of Riley, here I come!

Because I was quick to hope, I was easily deceived: Publishing one short article — even an article with a pretty decent thesis in a journal with a fairly large circulation — does not generate new business.

So I expanded my analysis and published the long-form of my article in the Arizona State Law Journal in 1987.

Because I was still a young man, I was still quick to hope. . . .

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It’s so hard to judge yourself.

Deep in your soul you know that people who criticize you are idiots, and people who praise you are wise and sagacious.

How can you possibly tell if you’re any good at what you do?

I have the answer for you! I’ve created a litigators’ self-assessment test! Now you’ll know if you’re any good!

Here’s how it works: Take out the last brief you filed.

Do it. Now. You won’t learn anything if you don’t follow the rules.

Look at the first sentence of your brief. For about ten percent of the people reading this column, the first sentence of your brief says (and I quote) . . . .

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I worked at law firms for 25 years. I observed many things and heard many others.

Now I work in-house, and I have to select counsel to represent me.

If I saw you in action (or heard about your reputation) back then, will I hire you now?

It’s obvious how you could have impressed me: You could have put the client’s interests first, and you could have been breathtakingly good when analyzing issues, negotiating settlements, preparing briefs, or appearing in court.

But what could I have seen or heard that forever removed you from my subconscious “approved” list? What are the deadly sins?

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Rain on the Elysian plain?

Am I really mixing Homer and Lerner?

I am. (Hey, no one forces you to read this stuff.)

But to what end do I mix apples and wheelbarrows?

I live on the Elysian plain of in-house life: Freed of the demands of generating business; able to foist tedium off on the sad sacks who work at law firms; thinking strategically about the most significant issues facing the company; permitted (indeed, required) to work closely with a business. “‘Tis a consummation devoutly to be wished.

But there are occasional drawbacks to working in-house, and I try to share those with the world when I notice them. Three recently came to my attention. . . .

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