Inside Straight

Inside Straight: Oy, Libya!

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Ed. note: This is the latest installment of Inside Straight, Above the Law’s column for in-house counsel, written by Mark Herrmann.

The Libyan rebels have it easy. All they have to do is overthrow a megalomaniacal dictator who has mustard gas.

But in-house lawyers? Now, they have it tough.

(I write these columns several days before they appear on-line. If Qaddafi is still in power as of Monday, March 7, then read this column as providing advice for the future. If, on the other hand, Qaddafi’s already out of power, then view this as a remarkably quick historical case study.)

On February 25, President Obama signed an Executive Order prohibiting certain transactions relating to Libya. (Here’s a link to that order.) Australia, Canada, and the United Nations Security Council promptly imposed sanctions of their own. Other countries will surely follow suit.

The rules governing trade with Libya will evolve in the United States as, among other things, the Treasury Department’s Office of Foreign Assets Control identifies entities linked to the targeted regime or that engage in targeted behaviors. The rules will also change in the rest of the world, as other countries create and implement sanctions regimes. Large multinational companies will be doing business in countries that will impose differing economic sanctions on Libya.

What will smart outside lawyers do?

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Inside Straight: ‘Standard of Review Decides Cases’

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Ed. note: This is the latest installment of Inside Straight, Above the Law’s column for in-house counsel, written by Mark Herrmann.

Here are two stories, from nearly thirty years apart. They’re bookends on the subject of why standard of review counts.

Travel back with me, if you will, to the summer of 1983. I’m ten minutes out of law school, and I’ve just arrived in the chambers of Judge Dorothy W. Nelson of the Ninth Circuit, for whom I’ll clerk. Our wise and sagacious predecessor-clerks — out of law school for an entire year! — are introducing us to the job. (We overlapped for one week.)

One of my predecessor-clerks, John Danforth, asked the new group: “Do you think standard of review matters in appeals?”

I knew the answer, and I was about to pop off: “Of course not! Once you convince the court that your side is right, the judges will do whatever it takes to rule in favor of your client. Standard of review is just a silly lawyers’ game.”

Fortunately, Danforth talks quickly. Before I was able to make a fool of myself, he said: “Standard of review decides cases. It decides cases. That’s the most important thing I’ve learned in a year of clerking. Standard of review makes all the difference in the world.”

Why?

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Inside Straight: I Want To Hire … Me!

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Ed. note: This is the latest installment of Inside Straight, Above the Law’s column for in-house counsel, written by Mark Herrmann.

I’ve never met Steve Susman, but he cracked me up recently.

Susman clerked at the Supreme Court, and the word on the street is that he’s a pretty theatrical guy. He was recently interviewed about the ideal candidate to work at his law firm, Susman Godfrey, and here’s what he had to say:

“Someone who’s clerked at the Supreme Court, is brilliant, and has theatrical presence. There’s a theatrical aspect to trial work.”

Ha! Susman wants to hire . . . Susman!

Isn’t this true all too often?

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Inside Straight: On Alphabet Soup (Hereinafter ‘OAS’)

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Ed. note: This is the latest installment of Inside Straight, Above the Law’s column for in-house counsel, written by Mark Herrmann.

Quick! What short form will you use in your brief to identify your client, Porsche Cars of North America, Inc.?

If your guts are screaming “PCNA,” then your guts need reworking.

But I chose this example for my column today because I’ve seen this very thing happen. I’ve seen a lawyer (at a perfectly good firm) assign the short form “PCNA” to this entity.

What was he thinking?

If I’m at the steering wheel of the case, then we’re not representing PCNA.

Who do we represent?

We represent Porsche, for heaven’s sake. Porsche.

It’s a word. I understand it. It creates an image in my mind. It communicates with me quickly and compellingly. That’s (generally) good….

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Inside Straight: FAS 5 Fracas

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Ed. note: This is the latest installment of Inside Straight, Above the Law’s column for in-house counsel, written by Mark Herrmann.

First, a shameless plug; then, back to business.

The plug: I’ll be giving my “book talk” about The Curmudgeon’s Guide to Practicing Law in several locations in the next couple of weeks, including in a conference room at Skadden and in auditoriums at the law schools of Northwestern and Indiana University. If you have a group that might be interested in the talk, please contact me. We’ll sneak you into one of the upcoming talks, and you can decide whether my spiel would actually fit your occasion.

Now, the business. And it’s real business this time around — a business issue that has caught the attention of an awful lot of in-house counsel. The issue has to do with the Financial Accounting Standards Board’s deliberations over whether to alter corporate disclosures about loss contingencies. (Sorry, guys. No pictures of naked Canadian judges after the jump here. You’ve gone from the sublime to the ridiculous, or vice versa.)

Here’s the backstory: Investors legitimately want to know whether companies are about to lose a ton of money in litigation. So investors want companies to make fulsome disclosures about their “loss contingencies,” which picks up a lot of territory, including pending or threatened litigation.

Companies, on the other hand, are reluctant to disclose publicly that they anticipate losing a lawsuit. If companies were to make that type of disclosure, their litigation opponent would be energized and the settlement value of the case would skyrocket….

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Inside Straight: Loving Laterals

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Ed. note: This is the latest installment of Inside Straight, Above the Law’s column for in-house counsel, written by Mark Herrmann.

Why are lateral partners like pigs?

No, no! I didn’t mean it that way!

I’m just remembering the line from George Orwell’s Animal Farm — “Four legs good, two legs bad!”

Thirty years ago, law firms took pride in having only homegrown partners: “Homegrown good, laterals bad!” There was a certain logic to that. If you’d worked with a lawyer from his first day out of law school or a clerkship and seen the lawyer progress in the law, then after six (or eight, or ten) years, you had a pretty good sense of that human being, both as a person and as a lawyer. When you made a partnership decision, you could be fairly comfortable that you were working from a decent base of knowledge.

Law firms knew this, and they flaunted it.

Places bragged that all (or nearly all) partners were homegrown. Firms tried to convince their lawyers to stay put. (In 1979, one former Cravath lawyer told me that the firm had a mantra, “You only leave Cravath once.” There was no going home again.) Firms didn’t hire laterals, and firms bragged about it: “Homegrown good, laterals bad!”

That was then; now is now. Based on where I sit, on the receiving end of many law firm marketing communications, times have changed….

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Inside Straight: Why The Focus On Written Work?

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Ed. note: This is the latest installment of Inside Straight, Above the Law’s column for in-house counsel, written by Mark Herrmann.

This column comes from a narrow perspective — that of a litigator and, in particular, an in-house head of litigation.

I suspect that in-house SEC lawyers, or M&A lawyers, may have entirely different perspectives on this topic. But as a litigator, I pay a lot of attention to briefs and other written work. Why is that?

Because I can.

When I was a partner at a firm, I’d let junior lawyers argue motions. For significant matters, I’d chat with the lawyers beforehand, to discuss how to approach an argument. But I almost never attended those arguments. Maybe I should have (for reasons of associate training and evaluation), but I generally viewed sending myself as an observer to be over-staffing an event. I thus rarely saw associates on their feet in court.

I also didn’t double-staff depositions. In mass torts (which was a lot of my practice, way back when), senior lawyers typically defended depositions, and more junior lawyers typically took them. This is partly driven by the nature of mass torts; in that environment, deposition defense is critical. If the senior VP of research and development gets her clock cleaned in deposition, that testimony will come back to haunt the client in hundreds of later cases. In mass torts, senior lawyers play deposition defense….

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Inside Straight: The Sins Of Inside Counsel

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Ed. note: This is the latest installment of Inside Straight, Above the Law’s new column for in-house counsel, written by Mark Herrmann.

It’s time for the other side of the coin.

Sitting here in the catbird’s seat, it’s easy to criticize things that outside counsel do. (It’s not just easy; my hope is that it’s also worthwhile. When I was in private practice, I paid close attention when I learned about things that annoyed clients.) But we’re equal opportunity critics here at ATL. It’s time to turn my sights on myself: What do inside counsel do that works to our own detriment?

I haven’t heard much from my outside counsel on this score, perhaps because I’m the client, and outside counsel are reluctant to criticize me (to my face). And I don’t innately sense all the things that I’m doing that are grossly stupid. But I do remember a fair number of silly things that inside counsel inflicted on me when I was at a law firm, and I can work backwards from there.

What are the sins of inside counsel?

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Inside Straight: The Illusion of Perfection

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Ed. note: This is the latest installment of Inside Straight, Above the Law’s new column for in-house counsel, written by Mark Herrmann.

When you write for as large an audience as reads “Above the Law,” you get a huge variety of responses to your posts. But two recent posts illustrated that point in a remarkable way.

Last month, I published one post about the care with which I edited bills (that is, daily time entries) that I sent to clients when I was in private practice. And I later published a post about how lawyers could improve communications by taking a moment to reflect on the “subject” lines of e-mails before hitting the “send” icon.

The response to those posts was fierce and immediate. Folks who published “comments” to those posts overwhelmingly reacted negatively: “What kind of idiot spends several hours a month editing time entries to ease a client’s life? This guy was a typical big firm drudge!” (I’m paraphrasing here, because some of our readers may be minors.) And, “He’s writing about the ‘subject’ lines of e-mails? What comes next — a post about the quality of the office staplers or the tissue in the restrooms?”

Simultaneously, I was receiving a host of e-mails — not anonymous comments, but signed e-mails — from folks saying that they were sharing the posts with other lawyers in their offices or asking permission to reprint the posts in internal newsletters.

This caused me to wonder: Why the divide?

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Inside Straight: Human Resources and the Law

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Ed. note: This is the latest installment of Inside Straight, Above the Law’s new column for in-house counsel, written by Mark Herrmann.

It’s odd to be one of the legal world’s shoulders to cry on.

This began when I went in-house a little more than a year ago. I started getting calls from lawyer-friends asking me how I’d managed to pull this off and how they could replicate the move. Then Lat and Mystal invited me to write this column, and complete strangers started to pose the same questions to me.

It’s like being Ground Zero for the disaffected.

This gives you a skewed view of the world, because folks who are delighted with their jobs don’t chime in (or, at least, don’t chime in to express disaffection). But being on the receiving end of so many bad vibes does make you sensitive to how many unhappy lawyers exist.

This made me a keen observer last week at a presentation about how workforce happiness affects operational results….

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