Inside Straight

Sometimes, we care about questions. Sometimes, we care about answers. Sometimes, we care about both.

When you’re reporting on a situation, remember that.

I see many, many interview reports that unnecessarily include questions when the reader cares only about answers. If you’re interviewing a witness, and the witness lived the facts (and you personally know bupkis), then we really don’t care about your questions; we care only about the witness’ answers.

So, when you’re reporting on your interview of the witness, do not assign an abbreviation to your name (Mark Herrmann, hereinafter MH), an abbreviation to the witness’s name (The Witness, hereinafter TW), and then report on your questions as though they mattered:

“MH asked . . . . TW responded . . . . MH followed up by asking . . . .”

We care only about the facts — which the witness knows, and you do not — so report only the facts:

“According to the witness . . . .” Your name should appear no more than once in the entire report, so we know who conducted the interview.

That’s a situation where we care only about answers. But there are other situations where we care only about questions . . . .

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I’ve finally plucked “big firm mediocre” out of my life.

First, I left Biglaw, so I’m no longer revising lifeless drafts that arrive either up through the ranks or from co-counsel.

Then, my corporation entered fixed fee deals for virtually all of its litigation work. We invited only firms that do good work to compete for our business, and the winners have performed as expected: No brief arrives at our doorstep until it’s been reviewed by someone who can write.

But we still have a few strays: There are cases in oddball jurisdictions or involving unusual specialties where we select counsel on an individualized basis. And we still have old cases lingering from before our fixed-fee days staffed by an assortment of counsel. Once in a long while, I still run into briefs written in the “big firm mediocre” style.

What’s funny is how consistent it is. Although the briefs address different subjects in different jurisdictions, and they’re written by different people, “big firm mediocre” constitutes its own distinct literary genre. Care to write in that genre (or assess whether you already do)? Here are the characteristics:

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Folks (including those who wrote the Federal Sentencing Guidelines) think that “tone at the top” matters. And those folks are right: If senior executives include the words “with absolute integrity” in their elevator speeches about the company, other people in the organization will catch on. People will come to believe that ethics matter, and ethics will thus come to matter.

But there’s another aspect of “tone at the top” that the Federal Sentencing Guidelines don’t compel: What are we trying to achieve as an institution? What’s your organization’s “tone at the top” on issues apart from obeying the law?

Does a drug company want to “discover and manufacture new substances to help people live longer, healthier lives”? Or does it want to “deliver maximum return to shareholders”?

Or maybe it’s all the same thing. As the (perhaps apocryphal) story goes: An interviewer asked Itzhak Perlman what he wanted out of life. Perlman said he wanted to play the violin. The interviewer was shocked: “Don’t you want to be happy?” “I want to play the violin. If I play the violin, I’ll be happy.”

Maybe if you develop drugs that improve and prolong lives, your shareholders will be rich. (And you’ll probably be happy, too.)

What’s the goal of your professional services firm: Do you want to strive for perfection? Or do you want to generate revenue? Or do you bill by the hour, so it’s all the same thing?

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My daughter — you remember her — recently chose her job for the summer after her first year of business school. She was so earnest and diligent about it; it makes a Dad proud.

Choosing a summer job is a huge event in the life of the student: This is, after all, the place where you’re likely to work for at least the first several years of your professional career. A summer job is a big deal.

But consider how things look from the other side of the table: Yet another crop of summer kids appears at your firm for a fleeting moment and promptly vanishes, perhaps to return 15 months later when there’s a chance one of them might help in a real way with some case. Or maybe they won’t come back. Or be any good. Could you remind me again what city I’m flying to tonight, and what motion I’m arguing tomorrow?

Don’t get me wrong: A fair number of lawyers pal around with the summer folks, because (1) those lawyers enjoy spending time with the newcomers, (2) it’s important to the firm to recruit the summer class effectively, and (3) the firm has a budget for entertaining summer associates, and you might as well get your fair share of free lunches and drinks after work.

Eating lunch with a summer associate isn’t a bad deal. But work with one of ‘em? That’s a very different story….

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We had the good fortune to have Patrick Fitzgerald — the former U.S. Attorney for the Northern District of Illinois who recently joined Skadden — speak to my company’s global compliance conference last month.

Let me prove that I’ve learned a little about this blogging business over the years: Before the jump, I’ll give you my personal thought or two about introducing prominent speakers. I’ll hold the good stuff — what Fitzgerald, the famous guy, said — until after the jump. (Watch this, Lat! They’ll be drawn through the jump like vultures to carrion!)

How do you introduce a prominent speaker? You can do it the usual way: He went to school, got a job, and did some fancy stuff, zzzzzzzz.

Or you can find something offbeat about the person. I chose to introduce Fitzgerald by saying that I was afraid that our speaker had peaked too young. He had been named one of the sexiest men alive by People magazine in 2005; how do you ever surpass that? And, also in 2005, he had received an award from Washingtonian magazine for “best performance without a script.” For most people, it’s all downhill from there.

Fortunately, our speaker managed to surpass his early achievements. And then I trotted through what must be the usual litany in a Fitzgerald introduction: Led the prosecutions of former Illinois Governors George Ryan (sentenced to five years) and Rod Blagojevich (14 years) and a bunch of others.

That was my contribution to the hour. But, you might ask, what did the famous guy have to say?

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The “talent management” folks are so different from lawyers.

Lawyers (at big firms, anyway) ask junior lawyers to do things and, ten years later, look to see who survived.

Talent management people couldn’t be different. They assess individuals and groups to try to find ways to improve performance. “O brave new world that has such people in’t!”

But when the talent management folks turn their sights on me, I realize that I have a split personality.

I (and everyone on my compliance team) recently took the Thomas-Kilman Conflict Mode Instrument. This puppy repeatedly asks which of two ways you would choose to resolve a conflict. After you make 30 of those choices, a computer spits out the “conflict-handling mode” that you prefer. The five conflict-handling modes are “competing,” “collaborating,” “compromising,” “avoiding,” and “accommodating.”

This test revealed my underlying split personality before I even learned the results. As to virtually every one of the 30 choices I was asked to make, my answer depends on the circumstances. When representing a party in litigation, I’m often a “compromiser”: He demands 100; I offer 10. He drops to 90; I go to 20. He wants six months to trial; I offer 24. On most subjects, litigants have equal power, and no one wants to be blamed for bothering the judge, so we compromise. According to Thomas-Kilman, I’m a “compromiser.”

But that’s just one of my many personalities. Suppose I’m not representing a party in litigation, but rather “negotiating” with one of my own clients. Goodbye “compromiser,” and hello….

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Let me regale you with two recent examples of lawyers disclosing client confidences. There’s a lesson tucked into each.

First: An acquaintance sent me the résumé of, and asked me to speak to, a young lawyer. The idea was to give some general career advice, rather than necessarily to hire the person.

I’m a pushover, so I agreed to have a cup of coffee with the relatively new lawyer. Over coffee, he (or she, but I’ll use the masculine) explained that what he liked least about the job he’d just left (which was identified on his résumé) was being asked to do unethical things. My curiosity piqued, I asked for an example. He explained that he’d been asked to draft a contract that committed his employer to violating the law as part of the contractual relationship. (Think along the lines of, “We will ship the illegal weapons to you in New York.”) My young acquaintance said that he’d gone to the general counsel, who had instructed him to draft whatever contract the business wanted. The earnest young lawyer had solved the ethical problem by drafting a contract that, when read carefully, would prohibit the illegal conduct. (Think: “Under no circumstance will any weapons of any type be shipped pursuant to this contract.”)

I’m afraid I won’t be recommending this person for any jobs. . . .

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I have to make a public confession:

Ten years ago, I co-authored a book that analyzed in all 50 states the existing analogues to the federal multidistrict litigation process. (Some states have analogues; some do not; some have procedures that serve the same purpose through very different mechanisms.)

Don’t scoff! That book served a public purpose, because the information was not then available anywhere else. And it served a business development purpose: If you work at a large firm, you don’t want to defend one-off product liability cases, because the fees won’t bear the big-firm freight. But you do want to defend those silly products cases the instant they transmogrify into mass torts. What’s the point at which the client knows that it is confronting a truly big and bad mass tort? When it’s defending not only a federal MDL, but statewide coordinated proceedings, too. Presto! Time to retain yours truly, the expert in that untrodden field!

Having written the book, my co-authors and I naturally publicized it. We published articles summarizing the substance of the book; explaining how to draft mini-MDL statutes; and, for publication in specific state bar journals, analyses of the mini-MDL processes available in certain populous states. Although I can’t find an online link to the piece, we wrote in a Ohio bar journal that Ohio was the most populous state not to have a formal procedure for coordinating related lawsuits filed in many counties.

Naturally, this triggered some thought in the Ohio bench and bar about whether the state should catch up with the rest of the world. In 2004, more or less, some judicial committee called to solicit my help (and that of my co-authors) in creating a mini-MDL procedure in Ohio.

That’s when I sinned . . .

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Some general counsel of public companies return to private practice involuntarily: The new CEO changes the management team, or your GC job becomes redundant after a bigger fish acquires your company.

But a relatively few voluntarily choose to leave the perceived comfort of being the top dog in an in-house law department to resume the battle of private practice.

That’s why I raised an eyebrow when a guy (or gal) who I’ve known for a couple of decades recently left his (or her) GC spot to return to big firm life.

Let me give the details needed to make the story worth telling, while concealing enough to protect my friend’s identity. This person had worked at firms small and large, became general counsel of a Fortune 1000 company within the last three to five years, and left within the last year to return to an Am Law 20 firm. When I heard that this person had returned to private practice, I could feel a blog post waiting to happen, so I naturally picked up the phone.

Here’s why my friend left the life of Riley to return to the big firm fray:

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I really like what Bruce MacEwen does over at Adam Smith, Esq. He thinks hard about the legal profession, and he says smart things that you won’t find elsewhere.

But he’s not perfect. He recently wrote that clients were partly responsible for the demise of Dewey (which may well be true) because clients had endorsed “the . . . toxic notion that you hire the lawyer, not the firm.” Here, I beg to differ.

Hiring “the lawyer, not the firm” is not a toxic notion; it is sanity.

Hiring the firm would be nuts, for at least two different reasons. First, the firm has many invidious institutional incentives: Let’s suppose you “hire the firm” by calling the managing partner (or head of litigation, or whoever) to say that you have a new case that you’d like the firm to handle. The managing partner naturally pokes around to see “who has time.” Presto! Your case would be staffed with the partner who has nothing else to do, because the firm can’t foist that guy off on any other sorry client. That inept partner would likely be assisted by a few associates who also “have time,” and you’d be wallowing in B-team city.

Not for me, thank you very much.

If you’re an intelligent client, you don’t want the lawyers who “have time;” you want the lawyers who “are good.” There’s no reason to think those two categories overlap, and plenty of reasons to think they do not.

And I’m just getting warmed up here . . .

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