Inside Straight

This post is both a request for information and a cry for reform.

Here’s the backstory: Back when God was young, I clerked for a federal appellate judge. I saw how things operated in my circuit, and my friends clerking elsewhere told me how things worked in other circuits. One operating procedure differed between circuits; the procedure affected litigants (without their knowledge), and one system was plainly better than the other.

My request for information is that recent clerks update my information: Does this operating procedure still vary among circuits today?

My cry for reform is that circuit judges discuss this issue internally to decide whether they’re convinced, as I am, that some circuits are hurting both themselves and litigants in the process by which the courts use bench memos….

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A decade ago, I sat in the midst of hundreds of lawyers at a firmwide partners meeting. The managing partner explained that most of our revenue came from our 25 largest clients, and we should focus on expanding those representations. He then noted the conflicts problems posed by tiny clients, for whom we did essentially no work. He urged us to get the tiny clients off the books. To illustrate his point, his PowerPoint slide showed the clients to whom we had sent the smallest bills in the previous year. The firm’s smallest client had been billed a total of $3.25.

The managing partner scoffed: “Three and a quarter? Three and a quarter? Can’t we at least be as selective as the neighborhood bar? Maybe we should set a $25 minimum.”

I’ve inhabited law firms both small (for five years) and large (for twenty). Business development efforts at those firms are similar in some respects — “get famous; make contact; get lucky; repeat” — but differ in other ways. I’m thinking today about the ways that business development efforts differ depending on whether you work at a big firm or a small one….

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Years ago, I was a barrel of laughs. (Well, more of a barrel of laughs then than I am now, anyway.)

When I was defending antidepressant-suicide cases, I barely resisted the urge to send in-house counsel an e-mail containing a political cartoon: The little lab rat was dangling (with his tongue hanging out) from a noose in the cage, having plainly just kicked the little stool out from under himself. One of the two researchers in white coats was saying to the other: “We have some bad news on the new antidepressant.”

Herrmann, you idiot! You can photocopy the thing and show it to the in-house lawyer the next time you see him, but the company just can’t have that in its e-mail system! Can you imagine that as Exhibit 1 at trial?

But I didn’t always censor myself. I’d share (funny) on-line humor with colleagues and clients, figuring that they’d appreciate it, and it was a painless way of letting clients know that I was thinking of them. I may well have been violating some firm policy by using the computer system for “non-business” purposes, but who cares, really?

When you start speaking to big audiences, you become more cautious. I wrote in Monday’s Inside Straight column, for example, that something had happened years ago, “when God was young.” I thought long and hard before I pressed the “publish” icon: Who will I offend? Orthodox Jews who never speak or write the name of Gxd? Devout Christians offended by the use of the Lord’s name in vain? Anyone else? Is it worth the risk of giving offense for the small benefit of making one column slightly more interesting?

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A correspondent recently posed this question: I’m a litigation partner at a big firm. If I go solo, will my corporate clients continue to use me for their smaller matters?

I’ll use this column to do two things. First, I’ll offer the customary answer to all legal questions: It depends.

Second, I’ll ask my in-house readers at large corporations to let me know (either by posting in the comments or sending an e-mail to the link in the shirttail below) whether their corporations use sole practitioners.

Will big corporate clients follow an individual lawyer who jumps ship and goes solo?

It depends . . .

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First, a shameless plug: Here’s an interview in which Ari Kaplan and I discuss “Inside Straight and the Impact of Getting Published on Professional Success.” (That’s Inside Straight, the book, not Inside Straight, the column, although I guess I see the room for confusion there.)

But enough of that. Let’s hear from the managing partner of our law firm:

Ah! Orlando in March! What a fine time and place for our annual firmwide retreat.

I want to welcome everyone to this magnificent resort, and I want to take this opportunity to say a few words about a subject that’s dear to our hearts: Billing time.

To paraphrase Sir Thomas More in “A Man For All Seasons“: “When a man [fills out his timesheets,] he is holding his own soul in his hands like water; and if he should open his fingers then — he needn’t ever hope to find himself again.”

For the junior associates in the crowd, consider this: You will, at some point, have a slow month. You’ll get nervous that the firm will punish you for not having billed enough hours. To protect yourself, you’ll be tempted to borrow from the future. You’ll think that, if you add just four hours to this month’s time, you’ll have hit your billing target. If you charge those four hours to your largest client, no one will notice that you’ve slightly padded the bill. And you’ll figure that you’ll make this up to the client in some future month; you’ll work four hours some Saturday morning that you won’t write down, so the client will come out even in the long run. “That’s not really fraud,” you’ll think, so you’ll have eased your conscience. . . .

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Personally, I gave up on law reviews in the mid-90s.

For a while after I graduated from law school, I flipped through the tables of contents of the highest profile law reviews, to see what the scholars were saying and to read things that were relevant to my practice. But by the mid-90s, I gave up: There was no chance of finding anything relevant, so the game was no longer worth the candle.

(When I took up blogging about pharmaceutical product liability cases, I began rooting around for law review articles in that field, which could generate the fodder for blog posts for which I was always desperate. Even then, the law reviews rarely offered much that practitioners would care about.)

None of that convinced me that the law reviews were dead, however, because I figured that the academics were at least still relying on the law reviews to screen and distribute each other’s work. But I had dinner recently with an old law school classmate who’s now (1) a prominent scholar in his or her field and (2) a member of the hiring committee at his or her law school. A short conversation with this guy (or gal) convinced me that law reviews are not long for this world. . . .

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Some years ago, information technology and research firms realized that they could thrive only by attracting and retaining employees with two very different skill sets. These firms needed both great scientists and great managers.

Great scientists, however, were being undervalued, while great managers were being given too much dignity. In many corporations, the more people under your supervision, the more authority, respect and, often, pay you command. How could IT firms keep pure scientists — who loved thinking great thoughts and creating great inventions, but loathed managing people — happy? Wouldn’t those folks become frustrated as they saw their peers — less able scientists, but great managers — move ahead in the ranks?

Those firms pioneered the idea of creating dual career paths. One path was the standard route to success: Manage people; control a P&L center; prosper.

But the second path was the innovative one: Lead specified projects; work with key clients; generate new ideas; prosper equally!

After the IT firms blazed that trail, sales organizations soon followed suit. Those outfits needed both great sales people and great administrators. So they created dual career paths, offering routes for advancement (and power, and riches, and corner offices, and all the rest) to both types of people.

Isn’t an analogous dual-career-path model worth considering, both at law firms and in-house law departments?

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I reported back in October that the New York Times had asked me to write an op-ed piece about the future of big law firms, but a Dealbook special unceremoniously preempted my piece.

I figured the editor at the NYT might think she owed me one, so I cranked out a replacement piece proposing to reform legal education. I’m pleased to report that this op-ed piece was not preempted! No, no, no: It was rejected on the merits. The editor said that my article made too many points and felt like a “report, rather than an opinion piece.”

But she was wrong. And, in any event, you should judge for yourself.

So here’s my recently rejected op-ed piece proposing how we should reform legal education. (I do believe this is the last in my short-lived series of “crap I wrote for the Times that the Times didn’t publish.” It’s an awful lot of work to produce 1,200-word pieces that become mere fodder for another column here at Inside Straight.) . . .

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You really don’t want to be sued in a corrupt, backwater swamp.

No, no! I don’t mean Louisiana! I mean a truly corrupt backwater swamp like, say, Sudan.

(I pick Sudan because it’s subject to sanctions by most first-world countries, so I don’t have to worry about someday being dragged before a Sudanese judge who isn’t tickled by my having called his country a “corrupt, backwater swamp.” I may well pay a price for having tarred Louisiana with that label, but my opening two sentences just wouldn’t have been funny if I hadn’t named a specific state. I’ll have to hope that judges in Louisiana have a sense of humor.)

You get sued in Sudan. You hire Sudanese counsel. You probe him about Sudanese substantive law, Sudanese procedure, and whether the Sudanese judicial system can be trusted. He answers your questions about corruption with vague assurances about how he’s a pretty well-connected lawyer, and most judges aren’t too bad, and corruption isn’t quite as rampant as outsiders seem to think. Then he goes on to explaining how he’ll defend your lawsuit.

That advice may be okay as far as it goes, but it’s missing the global perspective. Here’s one place where in-house lawyers — and sophisticated outside counsel — can add real value in litigation….

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I’ve been living in London for almost three months now, so it’s time to declare myself a native. What do natives know about the City?

First: Dryer technology is apparently too tricky for this country. Listen, chaps: A dryer is supposed to dry your clothes.

These folks don’t get it. They’ve invented a washer/dryer thingy: You put your clothes in the machine, press some buttons, and the machine washes your clothes. Without moving your clothes, you then push some more buttons, and the machine spins and makes some noise. At the end of the so-called “dry cycle,” you remove your clothes from the washer/dryer thingy and hang your clothes in the living room to dry.

The United Kingdom is one of eight countries in the world that has successfully detonated a nuclear weapon, but these boys can’t crack dryer technology? What’s up with that?

Hey, maybe that’s an answer! Nuke the friggin’ clothes! They might come out a tad radioactive, but at least they’d be dry, and they wouldn’t be hanging in my living room. Or maybe you could import some dryers from the United States: We’ve got a bunch that work, and we could use the export business.

But dryers are the least of it . . . .

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