When does permissible “flattery” become impermissible “lies”?
I’ll use three real-life hypos — situations that I’ve lived — to explore the question.
First: I was a partner at a law firm. The client had just hired a new, junior in-house lawyer to oversee (among other things) the set of cases we were defending. The client called an all-hands meeting. Four or five of us from the firm attended, as did the general counsel of the company, a couple of deputy general counsel, the global head of litigation, and the month-old, new in-house guy, who we didn’t yet know from Adam.
My senior partner spoke first: “Before we get started, I just want to say that [the new, junior in-house guy] is a great addition to your law department. It’s not often that you work with someone for just a few weeks and immediately know that you’ll be able to do better work, more efficiently, with the new person on board. But you did just that with this hire. Congratulations! What a great lawyer!”
The junior in-house guy was beaming ear-to-ear. Later, in private, your senior partner says to you: “That’s how you cement a client relationship.”
So, what do you say: Permissible (intelligent, praiseworthy) flattery? Or unethical lies?
Obtaining a summer associate position at a major law firm remains difficult. That’s the upshot of a recent report (PDF) issued by our friends at NALP. You can read summaries of the report at the NALP website and at the ABA Journal. This quip, by NALP executive director Jim Leipold, pretty much says it all: “This is not a hot recruiting market.”
Given that employers are still in the driver’s seat, at least when it comes to entry-level recruiting — recruiting of lateral lawyers, whether associates or partners, is a different kettle of fish — you’d think that law firms would use this opportunity to experiment a bit with fall recruiting. There are some interesting alternatives out there to the standard model of 20- to 30-minute screening interviews, typically held in the summer before or early fall of the 2L year, followed by callback interviews at the firms. E.g., JD Match (disclosure: a past ATL advertiser).
But law firms, as we know, are a conservative group. They tend to stick with existing models, even if those models are imperfect.
Well, most law firms. Nobody ever accused Quinn Emanuel of not daring to be different….
The issues presented in this appeal have been previously decided. Counsel were given an opportunity to distinguish our prior cases but Appellant’s counsel used that opportunity to criticize, rather than distinguish, them. There is nothing more to say. AFFIRMED.
– A unanimous panel of the U.S. Court of Appeals for the Tenth Circuit, in a non-precedential order disposing of the appeal in Commonwealth Property Advocates v. U.S. Bank National Association.
(This unpublished order reminded me of two prior benchslaps, discussed below.)
Be careful what you write when you’re young and idealistic.
In 2003, David Wolfe, a lawyer who works alongside Cherie Blair at top London human rights shop Matrix Chambers, decided he was unhappy with the way the British legal hierarchy works. So he co-signed an open letter criticising the Queen’s Counsel (QC) system –- a process that sees a handful of barristers (British trial lawyers) promoted to the elite QC rank each year, enabling them to charge clients more money. “The QC system cannot be justified as being in the public interest or promoting competition,” the letter stated.
Nine years on, and last week Wolfe found himself made up to QC — an honour which, despite the name, involves no input from the Queen or her family members. He didn’t decline. Indeed, all QCs have to actively apply in order to gain the title. Unfortunately for Wolfe, someone mentioned his youthful letter to RollOnFriday, a widely read U.K. legal blog.
When contacted about the letter, Wolfe responded….
I hate to invoke a cliché, but “David versus Goliath” captures the challenge a smaller firm faces when litigating against an Am Law 200 firm. A small firm can feel like David when facing a larger firm that can bring more resources to bear on legal research, drafting motions, reviewing documents, etc.
The challenge increases when applied to clients. Many of my firm’s initial clients were startups or emerging companies with limited litigation budgets. Their adversaries often were much larger, established companies with seemingly unlimited budgets. Thus, we faced not only the challenge of litigating against brand-name firms with hundreds of attorneys, but we also initially had clients who simply could not afford to spend as much in legal fees as their well-heeled opponents.
So how can a small firm, especially representing a smaller company, effectively litigate against a proverbial army of lawyers representing a client to whom money is no object?
Why do so many people think that you must be a blowhard to be an effective litigator?
I’ve recently heard several tales of business folks (or in-house lawyers) worrying that outside counsel is not aggressive enough. What prompts the concern is the lawyer’s performance during a conference call or at a meeting: The lawyer is civilized. The lawyer speaks quietly, asks probing questions, gives intelligent advice, and appears to be an effective advocate.
After the meeting, one of the participants says: “Are you sure we should use that guy? He doesn’t seem very aggressive.”
Remarkably (at least to me), I’ve heard the same thing at law firms. I’ve heard transactional lawyers wonder about litigators who are calm and intelligent at the lunch table: “He’s such a nice guy. I’m not sure I’d trust him in court.”
What’s my reaction? On the one hand, we can’t ignore perceptions. If a lawyer is so low-key that he doesn’t inspire confidence, then that is a legitimate concern. If I don’t trust the lawyer who’ll represent me at trial to defend me during a vigorous cross-examination, then that’s a real issue; we shouldn’t hire that lawyer. Confidence matters.
On the other hand, if the concern is simply that the litigator is not a blowhard — the lawyer speaks quietly and intelligently during business meetings, where there’s no need for bluster — then I have a very different reaction. In fact, I have three reactions:
The mega-firm of Baker & McKenzie has a global footprint, with 70 offices in 42 countries. It’s one of the world’s largest law firms, in terms of both headcount and revenue.
But are Baker’s 70 offices about to become… 69? For weeks, reports have been circulating about the possible demise of the firm’s outpost in San Diego. As you may recall, this little office is home to big drama.
Let’s look at the latest news about Baker in San Diego….
* Extra frothy: Santorum’s trifecta of wins in Minnesota, Colorado, and Missouri has made Mitt Romney angry. Because even a guy who wins nonbinding primaries can be dangerous to a man’s campaign. [New York Times]
* Joe Amendola claims that evidence is being withheld in his client’s case — evidence like the alleged victims’ phone numbers. Why does Sandusky need those? So he can call and breathe heavily into the phone? [Philadelpha Inquirer]
* Foxy Knoxy’s lawyer is appealing her slander conviction in Italy, claiming that the police “manipulated” her during questioning. You were already cleared of a murder charge, stop pushing your luck. [USA Today]
* It’s really too bad that Lindsay Lohan doesn’t employ Biglaw firms for all of her drama, because given what she’s spent on legal fees in recent years, those prized spring bonuses would assured. [Huffington Post]
Here’s my thesis: We create rules to hedge against ineptitude, and we thus institutionalize mediocrity.
Here are the examples. First, someone — the Administrative Office of the Courts? God? — creates rules to hedge against incomprehensible judicial opinions, and we thus discourage judges from writing exceptional opinions.
When new federal appellate judges attend what is affectionately called “baby judges’ school,” the judges are told how to write opinions. An opinion should have five parts, the judges are told: An introduction (which does not have to be preceded by a separate heading); a statement of facts; the standard of review; the legal discussion; and a conclusion.
Do we impose these rules because every judicial idea is best expressed in this format? Of course not. These rules impose a basic organizational structure on decisions, so that even the worst appellate decisions will be marginally comprehensible. The rules hedge against ineptitude.
Most judges follow the rules, and society generally benefits; we understand most of what’s written. I suspect that many judges who would be capable of writing better opinions if they were not bound by the rules nonetheless choose to constrain themselves, opting to do as instructed. Society may suffer in those situations, because the opinions are not as well-crafted as they might otherwise be.
A few judges ignore the rules. Whatever your politics, for example, you probably agree that Judge Frank Easterbrook often writes great opinions; he regularly ignores the mandatory structure. (This isn’t a high crime or misdemeanor, so he’s safe.) We don’t complain when Judge Easterbrook strikes out on his own, because readers understand what he’s saying and often delight in how he expresses himself.
On the other hand, if Judge Nobody were to strike out on his own, the law might become a muddle. We try to control that judge by imposing a structure. Bureaucratic rules discourage greatness, but they hedge against ineptitude.
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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