I’m closing in on 250 columns at Above the Law, devoting many of them to mistakes that I’ve recently witnessed (or heard about) (or, I should say to protect the privilege, simply ginned up out of whole cloth).
Remarkably, I’ve not yet written about an obvious error that occurs regularly: If you say that you will communicate with someone on a certain date, communicate with the person on that date.
Think for a minute about how often people screw this up, both in-house and at law firms.
In-house, some crisis arises. You take the helm. You send an email to the relevant folks in the organization saying, “I’ll get to the bottom of this, and you’ll know the answer by the close of business my time tonight.”
The close of business comes and goes, and what happens?
I thought about titling this column “Litigation Aphorisms,” but who the heck would have read it?
So I went instead with the first of three critical things you should know about litigation, all of which I learned from Neil Falconer when I practiced at the 20-lawyer firm of Steinhart & Falconer in San Francisco back in the 1980s. (I also dedicated The Curmudgeon’s Guide to Neil. He wasn’t a “mentor”; he just accidentally taught young lawyers by osmosis what it meant to be a lawyer.)
Neil’s first aphorism was this: “Never tell a small child not to stick peanuts up his nose.”
Why does that matter?
Or maybe I should start with a more basic question: What the heck does that mean?
Why do you send your emails about our big litigation victories to everyone in the C-Suite, Finance, the Business Leaders, and the rest of the world, with a copy to me, but you send your emails about our big litigation defeats to me alone?
Why do law firm promotional materials always describe recent cases at excruciating length and never briefly offer practical solutions? I might actually read something titled, for example, “Three Policies That You Must Revise Now That The Defense Of Marriage Act Has Been Held Unconstitutional.” (If I received that email, I must have overlooked it.)
Why does your email ask if I’m free at a certain date and time for a meeting without telling me “free for what”? Even if I’m otherwise booked or theoretically on vacation, I’m completely free for the CEO and the Board of Directors. On the other hand, I’m never free for the guy from IT who wants to drone on endlessly about user specifications for the new BPOS platform.
What’s the difference between an ATL commenter and an ATL correspondent?
A commenter writes, “Screw you, Herrmann, and the horse you rode in on. And your wife, and your kids. And your grandma. And your cat.”
A correspondent writes a long, thoughtful email, like the one I received from a reader in Rochester, New York, who read my column, “On Tweedledee And Tweedledum, Esq.,” and accused me overvaluing good writing:
“In litigation, while writing is important, it is not paramount. Just as, or more, important are analyzing law and facts and knowing what claims or defenses to assert. Then developing a strategy for discovery – knowing what documents to ask for, where to search, what questions to ask at deposition – none of which requires much writing at all and certainly not great writing skill. Developing the facts – and developing them in a way to help and not harm your case – is often much more important than writing a great brief. Knowing what issues to dispute in discovery and which to cede is important. Negotiating skills are important. Legal research skills are significant. Then, if a case goes to trial, entirely different skills are needed. Using an example from your column, because a lawyer writes an excellent brief does not mean they know how to properly prepare a witness or question a witness. . . . Someone can write with great style and flair but use bad analysis, miss significant facts or fail to find an important case.”
I have two reactions: First, thanks for writing. And, second, maybe yes and maybe no . . .
When I moved last year from Chicago to London, my morning workout changed along with my postal code: Instead of lifting weights and jogging on alternate days, I now jog every morning, plodding through my lap around Regent’s Park. Either the new exercise regime or my appetite for British food has affected me: Although I hadn’t realized it, I’ve lost a fair amount of weight this past year. (I started at only 5’10″ and maybe 175 lbs; losing 20 pounds wasn’t necessarily a good thing.)
Here’s what I noticed when my wife and I recently visited Chicago: When you’re in your twenties and lose weight, your friends say, “Hey, Mark! You’re looking good!” When you’re in your fifties and lose weight, your friends whisper to your wife: “Pssst: Is Mark okay?”
Anyway, our son, Jeremy (you remember him), recently survived his medical school boards and visited us in London for a while. He joined me for a few of my morning jaunts. I sprinted; he jogged. We both went the same pace.
All of this prompted me to reflect on the differences between the States and the Kingdom. I’ve previously noted that the United States cleans the UK’s clock in a couple of areas, such as dryer and traffic-light technology. But the reverse is also true: The Kingdom beats the States in a couple of noteworthy ways….
This means that if I picked my outside counsel randomly, I’d be disappointed 19 times out of 20. I don’t like those odds, so I don’t pick outside counsel randomly.
And if I picked my outside counsel based on which outside lawyers told me that they personally think they’re great, I’d still be disappointed 19 times out of 20. I still don’t like those odds.
I don’t know if other inside counsel view things the same way I do. But, if they do, it makes business development awfully tricky. If there’s nothing you can say or do to cause me to hire you, what forms of business development might work?
I recently heard the managing partner of a regional law firm say that alternative fee arrangements are like teenage sex: “More of it is being talked about than is actually being done, and the little that’s being done is being done poorly.”
My corporation now uses alternative fee agreements for a large percentage of its work. All of those arrangements have worked out acceptably, and one (which I’ll discuss after the jump) has played out spectacularly. The harder question is this: How does one convince tens of thousands of readers to click through the jump (and “continue reading”) a column about alternative fee arrangements (because clicks through the jump are, after all, the relevant metric to the Above the Law gang)?
I’ve got it! Gin up a riddle, and put the question before the jump and the punch line after. What reader could resist?
So — riddle me this:
What’s the similarity between discussions about alternative fee agreements and elephantine mating?
Both take place on a high level, involve much trumpeting, . . .
Here’s another story from real life (unless I’m making it up). The draft mediation statement starts with: “We sued them in Texas, and they sued us in Florida. Judges in both courts have now considered the issues.”
I write back, in my usual sensitive, caring way: “Any brief in the world could start with, ‘Somebody sued somebody’; that’s kind of the starting point for lawsuits. Because your opening sentence is entirely generic, it’s entirely unpersuasive. Please consider starting instead with: ‘BigCo hired three professional assassins to storm our world headquarters. During the assault, the assassins killed six of our employees, wounded four, and stole our trade secrets along the way.’ Having thus shown the mediator that we should win, we could then go on to note that we sued them in Texas, and they sued us in Florida, and judges in both courts have now considered the issues.”
Outside counsel writes back: “Perhaps you’d be right in some other case, but not in this one. We mediated this same case 18 months ago in front of the same mediator, so he already knows what our case is about. He doesn’t need any more of an introduction than my draft provides.”
What are the mistakes here? First, I’m the client. If I propose doing something idiotic, then stop me by any means necessary. But, in close calls, let me win; that’s called client service (and it’s what I did during the 25 years I spent in private practice). Second, this isn’t a close call. When I’m right and you’re wrong, let me win; that’s called intelligence. Third, and why I’ve set fingers to keyboard — you’ve made a mistake that I see repeatedly among lawyers: You think that people remember you . . . .
Years ago, I knew a lawyer who thought that business entertainment worked. He was a plaintiffs’ personal injury lawyer: “I treat a doctor to a $50 lunch, and the next day he refers a case to me. I make one phone call and settle the case for $9,000, netting a $3,000 fee. And the doctor thinks we’re even! It’s unbelievable! I can’t eat enough lunches!”
Good for him. But does it work for anyone else?
I certainly treated clients to dinners and sporting events in my day, but none of those clients (or prospects) ever hired me in return for that entertainment. I didn’t expect them to, and I’d be terribly disappointed in them if they did. My having treated a guy to a dinner doesn’t make me the best lawyer to handle his case, and he’d be nuts to hire me because the caviar was beluga.
The reverse is also true. Lots of people want to meet me, buy me a meal, or take me to a cricket match (I’m now based in London, remember?) since I’ve gone in-house. A few of the folks who buy me lunch even follow up with e-mails expressing their unhappiness that I haven’t promptly retained them: “Was it something I said? Why haven’t I heard from you, other than the thank you note?”
It was nothing you said. But why should I possibly hire you simply because you bought me lunch?
I have my own theory about why firms create large “client entertainment” budgets . . .
So you spent a considerable amount of time courting, selling and maybe even doing some friendly stalking of that attractive lateral partner candidate with a sizable book. After he or she ignored your emails and didn’t return your calls, a few weeks go by and you read a press release in the legal media announcing the recent move to a competing firm.
Rats. Another one got away from you. You cringe when you consider how much time was spent in meetings that did not bear fruit. Your heart aches when recall how you were led to believe this was a marriage made in heaven.
You have been rejected.
The sting of rejection is painful, even for fancy law firms. But you need to find a way that you can turn this disappointment into a legitimate learning experience.
No, this isn’t a pre-party before we come back next fall for the real thing. This IS the real thing. Quinn Emanuel is pushing the envelope on recruiting. The party is now. This is when you meet the partners and associates face to face. This is when we begin the dance that could land you an offer for your second summer BEFORE school starts in the fall.
First: You come to the party. Second: If you like us, you send your resume after June 1, 2014. Third: If we like each other, you get an offer.
We’re not waiting for fall. We’re not doing the twenty minute thing. This party is the real thing!
We hope you’ll join us, and look forward to meeting you.
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past six years. You can reach them by email: [email protected].
Since late last year, things have been booming in Hong Kong / China in cap markets, especially Hong Kong IPOs. M&A deal flow has recently been getting a bit stronger as well. Although one can’t predict such things with any certainty, all signs are pointing to a banner entire 2014 for the top end US corporate and cap markets practices in Hong Kong / China. This is not really new news, as its been the feeling most in the market have had for a few months now and things continue to look good.
The head of our Asia practice, Evan Jowers, has been in Hong Kong for about 10 days a month (with trips every other month to both Shanghai and Bejing) for the past 7 months (Robert Kinney and Evan Jowers will be in Hong Kong again March 15 to 23), and spending most of his time there meeting with senior US hiring partners at just about all the major US and UK firms there, as well as prospective candidates at all associate levels and partner levels, and when in the US, Evan works Asia hours and is regularly on the phone with such persons, as our the other members of our Asia team. Our Yuliya Vinokurova is in Hong Kong every other month and Robert is there about 5 times a year as well. While we have a solid Asia team of recruiters, Evan Jowers will spend at least some time with all of our candidates for Asia position. We have had long standing relationships, and good friendships in some cases, with hiring partners and other senior US partners in Asia for 8 years now.
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