Inside Straight

I’m thinking again, as I did on Monday, about why lawyers go insane over time.

Years ago (long before MapQuest was even a gleam in its inventor’s eye), an older lawyer sent me directions for driving to his home. It was pretty easy to get from my apartment to his house; I had to make only three or four turns. But the directions were several typed pages long. Why?

Because this guy had been driven insane by mistakes in the past. He had told someone to turn east on a road, and the person had turned west. So now the directions eliminated that possible mistake: “Turn east (that is, turn right as you are proceeding northbound on route 1) at the light.” Someone else had missed the turn. So now the directions eliminated that possible mistake: “If you see a shopping mall followed by a McDonald’s on the right side of the road, then you have gone too far. Turn around, go back to the light, and turn east (that is, left as you are now proceeding southbound on route 1) at the light.” Having experienced all of these mistakes, the older lawyer felt compelled to help me avoid them, which made his driving directions nearly incomprehensible.

What does this have to do with being a lawyer?

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There’s a reason why people get crotchety when they get old. People forget about things that went right in their professional lives; that’s like water off a duck. But people remember things that got screwed up; that’s what sticks in their craws.

You personally are not necessarily incompetent. But you’re tarred by the ghosts of incompetents past. When your elder — a partner, a boss, a client, whoever — asks you to do something, the boss assumes that you won’t do it. The boss doesn’t assume this because she knows that you’re irresponsible; she assumes it because the clown she asked to do something six months ago was irresponsible, and she has to hedge against you being an irresponsible clown, too.

How do you prove that you’re not irresponsible?

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A few months ago, I attended a hearing on a motion for a temporary restraining order.

The judge came out on the bench and berated one side’s lawyers: “You filed these papers at midnight last night. Your brief is more than 70 pages long and has a foot of exhibits attached to it. I arrived at court at 9 this morning, and you’re now arguing this at 9:30. Do you really think I had a chance to read this stuff?”

How does this happen? How can lawyers be so silly?

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Some tasks are meant to be delegated; others are not.

Sometimes, whether the task is meant to be delegated depends on what the supervisor has in mind.

Let’s think about three examples…

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I came of age in the law in the late 1980s. At the time, arbitration was viewed as a big deal and a possible threat to the judicial system. Many corporations were adding arbitration clauses to their contracts; companies were agreeing to arbitrate, rather than litigate, disputes; and pundits feared that the judicial system would suffer.

What were the perceived benefits of arbitration?

It’s private. Companies wouldn’t have to share their dirty corporate laundry with the world.

You get to pick your own decision-maker. If you fear generalist judges, you can select an industry specialist as your arbitrator.

Arbitration is cheaper. Limited (or no) document production; no depositions; no silly, time-consuming motion practice. No serious appellate review, and thus relatively few time-consuming appeals.

This was perceived as being not just good, but great! Parties could design their own processes to have private judges resolve disputes quickly and efficiently, and corporations would spare themselves the expense and indignity of appearing in court.

Indeed, a couple of decades ago pundits feared that arbitration would soon threaten the judicial system. Parties with means would plainly prefer arbitration to litigation, so there would be ample demand for arbitrators’ services. Arbitrators are often paid at the rate of private practice lawyers, rather than public servants, so good judges would leave the bench in droves to accept more lucrative jobs as private arbitrators. The quality of judges would decline, and America would be left with a two-tiered system of justice: High-quality, private arbitration for the rich, and low-quality, public courts for the poor.

Or that was what the pundits said….

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Do I look like “Dear Abby”?

Somehow, because I’m working in-house and writing this column, I’ve become the adviser to the disaffected. A correspondent now asks: “I’ve worked at a Biglaw firm for several years, am at the end of my rope, and am interviewing for an in-house job next week. How will an interview for an in-house job differ from a Biglaw interview?”

I have three reactions: First, the interview may not be different at all. The in-house lawyers who are interviewing you may be veterans of Biglaw, and they may not have changed their interview styles when they changed jobs. Being qualified and pleasant may be plenty to land the job, as it is at many large law firms that are hiring new associates wholesale.

But the interview may be different in two ways that you should consider….

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I’ve received a couple of e-mails from associates at large firms saying that these folks sit at their desks dreaming about having in-house jobs: One client instead of many competing for your time. More manageable workload. A broader range of work. Less stress. An opportunity to think strategically instead of wallowing in minutiae. No more billable hours. No more time sheets. Bliss!

Please, these correspondents ask, write a column explaining the tribulations of in-house counsel.

This is tricky. First, the in-house life is pretty good. I wouldn’t want to understate the advantages. Second, I don’t hide behind a cloak of anonymity when I publish these columns. If I faced any tribulations (and I don’t, of course), this wouldn’t be a wise forum in which to let loose. Third, my own personal experience doesn’t prove very much generally, and I hear a wide range of varied reactions from others who work in-house.

But I’ll give it a shot….

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I recently heard a panel of judges speak about e-discovery issues. Their opinions on several subjects varied, but on one subject they agreed unanimously: Clawback provisions under Federal Rule of Evidence 502 are valuable tools in most significant litigation, but they remain rarely used.

This piqued my interest, so I asked several in-house litigators (not necessarily at the place where I work) whether they routinely seek FRE 502 clawback provisions in their cases. The in-house lawyers do not. And I asked whether outside counsel routinely recommend seeking those provisions. Not surprisingly (because the in-house folks aren’t using them), outside counsel do not.

The judges think clawback provisions are a good idea; in most situations, it strikes me that the judges are right. So what are FRE 502 clawback provisions, and why are inside and outside counsel routinely missing this trick?

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Success — at a law firm, in-house, or in any professional services environment — requires a certain mindset. The mindset is this: “My job is not to take an order from my client (or boss) and fill that order, but rather to achieve things.” Or, to put it differently, strive to execute projects, not simply to perform tasks.

Let’s start with a silly example: You ask someone to call the plumber to get the sink fixed.

Three days later, you realize that you haven’t heard back on this subject, so you ask, “Did you call the plumber?”

You hear back, “Oh, yes. I did.”

“And?”

“The plumber hasn’t returned my call.”

Do you feel as though you received intelligent help with this project? Of course not — because the project was to get the sink fixed. You didn’t really care whether your helper called the plumber, or e-mailed the plumber, or attracted the plumber’s attention with smoke signals. So long as the sink got fixed, the project was completed.

But your helper chose not to think about the project and instead focused only on the task — making a phone call, whether or not anything came of it. Your helper completed the task and ignored the actual project.

Undertaking tasks, rather than executing projects, is exactly the way to fail in a professional services environment. Here’s an example, from the legal world….

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Egad! The General Counsel just announced that your target for next year will be to handle 20 percent of all outside legal spend on an alternative fee basis! What do you do?

You can’t just do flat fee agreements! What happens if you agree to pay too much, and you’ve given away your client’s money? And success-based fees are a great idea, but they’re impossible to calculate! How does anyone know at the start of a piece of (non-routine) litigation what the case is worth? Since you don’t know the value of the matter, you can’t set the target from which you’ll judge success.

What’s an in-house lawyer to do?

Calm down. Here’s a way to ease into alternative fee agreements that will put neither you nor your outside firms at risk, will educate you slowly over time, and will meet your internal objectives….

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