Mark Herrmann

I’ve never met you, but I assume that you’re incompetent.

I realize that sounds a bit harsh, but it’s time someone told you the truth.

Some people assume that strangers are competent. One of my colleagues in our Law Department said to me recently: “Outside counsel says we won’t have much liability in that case.”

I naturally asked, “Is he right?”

She was shocked: “He’s a partner at a well-respected firm. We hired him. I assume he’s competent.”

That got us to talking. My colleague gives strangers the benefit of the doubt; she assumes that people are competent until they prove otherwise. I’m exactly the opposite: When I meet you, my working assumption is that you’re inept. Over time, there’s a chance you’ll convince me that I’m wrong. (But probably not.)

Why do I assume that all new people I meet are incompetent?

No, that’s too easy. Here’s the better question: Why am I right to assume that everyone’s incompetent, and why is that a helpful way to go through life?

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I never heard these words before I went in-house: “If you send something to a person above me in the hierarchy, then send a copy to me, too.”

Now I hear (or speak) those words all the time. And those instructions seem pretty easy to grasp.

Remarkably, a fair number of people don’t seem to understand what those words mean.

I offer this column for the benefit of in-house newbies, and in-house oldbies who don’t understand, and lawyers at firms who might want to consider whether these instructions make sense at law firms, too.

If you’re sending something to someone above me in the hierarchy, then send a copy to me, too.

Why?

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No, not that kind of chambers.

I’m in-house, so Chambers & Partners — one of the outfits that rates lawyers and law firms — sent me a free copy of their 2014 guide.

If you’re profiled in that book, you get to write your own (very short) bio. You get something like 50 words to convince the world to hire you. So what did one person, from the distinguished firm of Bigg & Mediocre, write? I’ll slightly alter the bio, to disguise the guilty, but you’ll get my point:

Charles Darnay has argued more appeals in the Second Circuit than any other lawyer at Bigg & Mediocre.”

This guy isn’t competing for business with other law firms; he’s trying to steal business from his own partners! His pitch is not: “I’m better than other lawyers in the world.” Instead, it’s: “I may not be better than most lawyers in the world, but at least I’m better than any of the other clowns you’ll find here at B&M.”

Very nice. But that’s not the best of it; Chambers conceals many secrets . . .

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The week of the Fourth of July is a lonely one for Americans here in London. The Brits just don’t appreciate the Revolutionary War the way we do. And you see other occasional signs of hostility, too. When I arrived in London nearly two years ago and wrote a column about my initial reactions, a British legal website promptly linked to my work and illustrated the piece with a picture of Old Glory in flames.

I’m back for more, to celebrate the Fourth in style.

When asked, how do I describe my current living arrangements?

“I have an apartment in Chicago and a flat in London.”

Isn’t that odd? I automatically translate from American English — “apartment” — to British English — “flat” — as my brain imagines the transatlantic journey.

I also now naturally think in Celsius — 0 is freezing; 20 is room temperature; 35 is miserably hot — without doing a mental detour through Fahrenheit. But I still think in dollars. When I see that a half dozen eggs cost two pounds, I’m outraged that I’m being charged nearly three fifty for the item in my shopping cart. I don’t (yet) naturally think in sterling.

So I’ve generally adjusted to my new life, but things can still occasionally get spooky . . .

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I was 26 years out of law school before I moved in-house.

In those 26 years, I had never heard of “one-on-ones” (outside of the context of basketball). When I moved to a corporate job, folks were astonished by my ignorance. (A small part of that astonishment had to do with my unfamiliarity with one-on-ones.)

I’ve now been working for four years in what I take to be a typical (indeed, world-class) corporate environment, and I’m ready to declare the truth, thus offending every human resources professional who has ever lived: One-on-ones — individual weekly meetings between managers and each of the people who report to them — are generally unnecessary.

I know, I know: One-on-ones guarantee that the manager knows what’s happening in his or her department. And the meetings let managers give immediate feedback on how members of the team are performing. And there’s nothing like personal conversations to build relationships and esprit de corps.

Humbug!

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Think you can write? Do these four things.

First, pull out the last brief that you wrote.

Not that one — that’s the final version, edited by guys who could write. We’re looking for your work, untouched by others. Find the unedited draft that you first circulated. (If you don’t have a draft brief handy, that’s okay. Find the last long email that you sent to someone who matters — to the partner, the client, the general counsel, or the CEO.)

Second, click through this link, which will tell you how to enable Microsoft Word’s “readability” feature on your computer. Enable that feature.

Third, let the readability feature score your work.

Finally, take a handkerchief and wipe the spit out of your eye. (I bet you didn’t realize that a computer could spit in your eye.)

You didn’t notice the spit? Here it comes: Compare your readability score to the average readability score for the works of bestselling authors. . . .

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Ambrose Bierce once said: “War is God’s way of teaching Americans geography.

Ambrose Bierce, Esq., would have said: “‘Business-friendly legal advice’ means telling the client that it can do illegal stuff.”

Bierce, Esq., would have been funny, but wrong.

It’s important for lawyers to give useful advice. But many lawyers, both in-house and out, don’t seem to understand this. I’ve recently seen (or heard about from others) senior folks in businesses or in-house law departments ask not to receive advice from certain lawyers: “Don’t go to her! She’ll just tell me that everything is illegal!”

Or: “Don’t go to that firm! They’ll give us some theoretical answer that we can’t possibly use, and we’ll end up having to figure out a solution for ourselves anyway.”

Those reactions (and those words) make sense to business people and in-house lawyers; clients need real advice, not self-defensive crap. But some lawyers — typically at firms, but occasionally in-house, too — don’t understand this. To help those folks, here are illustrations of what “business-friendly” (or the opposite; shall we call it “business-hostile”?) advice sounds like . . . .

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I’ve come under criticism recently, either expressly or implicitly.

I tell new lawyers to write in short sentences.

Very short.

My preferred writing style is “Modern American Snowplow.”

Others insist that I’m too strident. Mark Osbeck, who teaches legal writing at The University of Michigan Law School, has published a law review article (it’s the fourth one down) criticizing The Curmudgeon’s Guide To Practicing Law because my book over-emphasizes the need for short sentences.

I have two reactions. First, thank you! Let’s debate these issues in public! And, so long as you spell my name right, you’re doing us both a favor!

Second, I’m right, and you’re wrong! Why? Because I’ve never in my life reviewed the work of a new lawyer and thought: “This draft would be pretty good if only it used a bunch of longer sentences. The cure to what ails this brief is to add some complexity to it.” If you were honest with yourself, Professor Osbeck, you’d admit that you’ve never seen that, either. On the other hand, both you and I frequently see sentences that desperately need to buy a period. So what should we teach — the rule or the exception?

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In 1983, when I graduated from law school, essentially no one wanted in-house legal jobs, and people who worked in-house weren’t held in very high regard.

To the contrary: With few exceptions, in-house lawyers were viewed as failures. These were the folks who couldn’t succeed at real jobs. People went in-house because law firms wouldn’t have them; jobs with short hours, low pay, no challenging assignments, and no stress were the only available alternative.

That was not simply my narrow-minded perspective. It was the widely shared belief of generations of lawyers who came of age in the law before about 1990. I recently had a drink with the general counsel of a Fortune 250 company, and he (or she, but I’ll use the masculine) told me that he could never be a success in his father’s eyes: “My father was a partner at a major law firm. He was pleased with me when I clerked for a federal appellate judge, took a fancy government job, and later became a partner at a big firm. But then I went in-house, and he lost all respect for me. He wanted me to ‘succeed’ in the law — to try high-profile cases and argue important appeals. When I went in-house, he quickly decided that I was a failure, and there was never any chance that he’d change his mind.”

Although that’s a sad story, I’m pleased to report that, at least in the context of in-house legal jobs, Bob Dylan had it right: “The times they are a-changin’ . . .

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First, two plugs; then, crystal-ball-gazing about a certain breed of law firm. Plug one: Please take a look at “How To Write Articles That Don’t Generate Business.” I amused myself writing it; perhaps you’ll be amused reading it.

Plug two: I’ll be back in the States for a few weeks in June, and I’m taking advantage of that opportunity to give my “book talk” about The Curmudgeon’s Guide to Practicing Law at three “Vault 50” firms. So long as I’ve dusted off the notes to give those three talks, I might as well speak at your firm, too, Please let me know if you’re interested.

Finally, some crystal-ball-gazing: I’ve been picking for years on the fictitious law firm of Bigg & Mediocre. For good reason: To my eye, a fair number of firms have decided that adding more offices and lawyers is the cure to all that ails them and that relentlessly focusing on quality is a failed strategy of the past.

Recent empirical evidence now suggests that I may actually have a point. The Am Law profitability ratings for last year show that the super-rich firms are getting richer, and the run-of-the-mill big firms are doing okay. But one group is getting crushed, seeing substantial decreases in both revenue per lawyer and profits per partner: what Am Law calls “the giant alternatives” or the “vereins.”

My mental category of “big and mediocre” doesn’t match Am Law’s “giant verein” group. To my eye, a few of the global giants have managed to pursue both size and quality. But several have not. (I can’t say publicly which firms I would place in which category, because my employer is the world’s leading insurance broker for law firms, and I can’t go around offending the clients and potential clients. Let me just say that your firm is great. Not just great — stupendous! But the other guy’s firm? Not so much.)

So “big and mediocre” got its clock cleaned last year. I’m predicting that big and mediocre will get its clock increasingly cleaned over time, and within a couple of decades, will suffer the fate of the sundial.

Why?

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