Your company was just named in a new complaint, and there’s no obvious choice of counsel to defend you. What do you do?
You ask around internally to see whether any of our lawyers has worked with good counsel in the jurisdiction. Perhaps you ask a trusted outside lawyer or two for recommendations. You narrow the choices down to two or three candidates, and you decide to interview the top three firms.
This brings us to the subject of this post: What do you ask at the interviews?
During my 25 years litigating at law firms, I fretted about two words: “winning” and “losing.” (As one old-timer put it: “They don’t pay you twelve dollars a minute to lose.”)
Now I’m in-house, and I’m still fretting about two words: “probable” and “estimable.”
The accounting rules require corporations to take a reserve (which causes an immediate hit to revenue) when a “loss contingency” (which is accountant-speak for lawsuits, among other things) becomes probable and estimable. If it’s likely that you’re going to lose, and if you can estimate the amount (or, at least, the lower bound of the amount) of the loss, then it’s time to take a reserve.
The information age we live in can be a blessing and a curse. Few fields demonstrate this truth more persuasively than the realm of electronic discovery.
During a panel here at the Legal Technology Leadership Summit on the theft and exfiltration of intellectual property, the panelists discussed the exponential growth in information densities, the increasing importance of IP, and the challenge that evolving technology presents to the governing legal frameworks. As one panelist noted: “Technology leaps, the law creeps.”
What does rapidly changing technology mean for the e-discovery world? And what are some considerations that in-house lawyers should keep in mind when responding to e-discovery requests?
When is a litigator thinking most keenly about a specific witness’s testimony?
There are two days: The day you’re taking (or defending) the deposition of the witness, and the day — months or years later, if ever — when you’re examining the witness at trial. So when should you be making notes about the witness’s testimony and your reaction to it? That question answers itself: You should make quick notes of key points during the deposition, and you should write notes to yourself immediately after the deposition ends. “Immediately after”: Not later in the week; not the next morning. Now, when your brain is fully engaged.
Those notes don’t have to be comprehensive, but they have to memorialize the things that you noticed during the deposition that you’re likely to forget by either the next morning or the day, a month later, when you’re reviewing the transcript. The notes are quick and easy. Write an e-mail to yourself that says: “Today I took Smith’s deposition. These were the highlights: (1) He admitted A; (2) He denied B; remember to create some other admissible evidence on that point; (3) He evaded on C; there’s something fishy going on there; (4) Opposing counsel started interrupting when I got near D; we should press harder on that point; (5) His testimony opens up issue E; let’s do some legal research.” There might be a half dozen points; there might be a dozen. But the key is to record immediately the fleeting ideas that you had while your brain was most in gear.
During the deposition, you’re as attentive as you’ll ever be. Don’t lose the moment; capture it.
I’m a lawyer. I’m a co-worker. In some cases, I may be a friend. But I’m not a mentor; I have no time for that crap.
When I was clerking (for the Honorable Dorothy W. Nelson of the United States Court of Appeals for the Ninth Circuit), my judge was (and remains) a delight. She was a warm, engaging person who treated everyone as an equal. She was living proof that you don’t have to give up on human kindness just because you’ve become powerful. She taught, by example, many lessons about work-life balance and the meaning of humanity.
But a mentor? They hadn’t invented the word “mentor” (at least with its current connotation) back in 1983. I don’t think Judge Nelson gave the idea a moment’s thought….
360-degree reviews: We solicit anonymous input from your boss, your peers, and your subordinates. A reviewer goes through all of that information, discusses it with you, and, perhaps, shares with you documents containing parts or all of the anonymous responses.
These are remarkably helpful tools. They’re helpful, first, because you know that they’re coming. If you’re going to be evaluated by everyone in the neighborhood, then you’re more likely to be civilized and fair to everyone in the neighborhood. (“Civilized and fair” doesn’t mean “easy” or “letting others break the rules.” It means “civilized and fair.” If someone’s performance needs improving, you talk reasonably with that person about his or her weaknesses and how to improve. You don’t belittle people or scream at them, because incivility will surely come back to haunt you at 360-degree review time, and you know that 360-degree review time is lurking in your future.)
360-degree reviews are helpful because you critique others. It’s relatively easy — or, at least, routine — to be asked to critique folks situated beneath you in a hierarchy. But it’s a little different to be asked to critique folks who are situated horizontally or above you. When you’re asked to critique those people formally, it makes you think a little harder: What are those people doing right? What are they doing wrong? What information should they hear about their performance?
When you’re in private practice, people ask you tough questions. “During the proxy fight, a trial court held that our proxy statement was false and misleading. We settled that case, so that judgment is final. We’ve now been hit with a 10b-5 shareholder suit, and the plaintiffs have filed a motion saying that the earlier proxy decision is binding on the question whether our statements were false and misleading. How do we defeat that motion?”
Then you move in-house, and the question changes: “How can we reduce the cost of electronic discovery and document review?”
Oh, how the mighty have fallen.
But, when you’re forced to think for a minute about electronic discovery and document review, you realize that the battle previously waged between law firms and third-party vendors to capture this work is now largely over: Document review, which was historically an important profit center for large law firms, has moved permanently into the hands of third-party vendors. That sea change was not prompted by the recession, and things are not going to return to the old “normal” after the economy recovers. Companies that continue to rely on law firms, rather than third-party vendors, to do large document reviews are probably making a mistake, and law firms that are counting on document review projects to resuscitate their profitability are betting on the wrong horse.
This question comes up in many different contexts, and answering it always requires a little judgment.
At law firms, the questions often involve what the partner or the client needs to know. These people are supposed to be kept in the loop, but that task may be trickier than it seems. You want people to be fully informed, but you don’t want to become a pest, constantly alerting people to irrelevant trifles. What’s a person to do?
The answer varies by many things, including the nature of the matter you’re working on, the compulsiveness of the person you’re working with, the degree of trust established between you and the person you’re working with, time pressure, and the like. To the extent it’s possible, though, let’s establish some general rules….
When I was in private practice, clients said that they instituted e-billing for reasons of efficiency: “We can process bills and pay you faster if you submit bills electronically. E-billing speeds the process for both of us.”
I knew that bills that we submitted electronically underwent some kind of review. It always felt as though it was review by chimpanzee, as clients seemingly whacked hours randomly, leaving us with the hard choice whether to remain silent or quibble about a few bucks here and a few bucks there. But fundamentally I accepted the basic proposition that e-billing improved efficiency.
Now I know better….
(Actually, I don’t really know much better. I added a provocative sentence followed by an ellipsis so that Lat would know precisely where to put the break for the “continue reading” icon when he loads this post into the ATL blogging software.)
When I graduated from law school, I decided that I would take a job at a large law firm because it would maximize my chances of going in-house. I had no idea what either job would entail, but it seemed like a sensible plan. And, even without knowing what it would be like to be a litigation associate in Biglaw, I suspected it would be bad enough that an exit strategy would be necessary.
A few years later, I switched my exit strategy and went to a small firm. I decided that I could not wait for three to five more years to get the skills required to go in-house. So, I went to a small firm to get “hands on experience” and position myself for my new exit strategy: a federal government job. Then, hiring for federal jobs froze, and the few openings were impossible to get unless you had the exact experience required and could figure out your grade level. Consequently, I am currently reformulating my exit strategy. I am contemplating running for president or becoming a certified yoga instructor.
I have yet to meet a lawyer who did not plan or fantasize about his or her exit strategy from law firm associate, be it Biglaw or small. I blame it on the nightmare that is billing hours — even if the requirement might be less at some places. The most common exit strategies are (1) in-house and (2) fitness professional.
Is it possible, however, for a small-firm associate to go in-house, or is the small-firm associate required to follow my path and find a new exit strategy?
Ms. JD is hosting their 2nd annual cocktail benefit to raise money for the Global Education Fund. The event will be held on August 21, 2014 at 111 Minna in San Francisco. Our goal is to raise $20,000 to fund the legal educations of four dedicated law students in Uganda who count on our support to continue their studies at Makerere University during the 2014-15 academic year.
The Global Education Fund enable womens in developing countries to pursue legal educations who otherwise would not have access to further education. According to the World Bank, investment in education for girls has one of the highest rates of return to promote development. In Uganda, more than 45% of women over the age of 25 have no schooling at all, and men are more than twice as likely as women to have access to higher education. Together, we can work to end educational inequality. For more information about the program, please visit http://ms-jd.org/programs/global-education-fund/
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 seven years. You can reach them by email: firstname.lastname@example.org.
We at Kinney Asia have made a number of FCPA / White Collar US associate placements in Hong Kong / China thus far in 2014. Most of such placements have been commercial litigation associates from major US markets, fluent in Mandarin, switching to FCPA / White Collar litigation. Some have already had FCPA experience, but those are difficult candidates for firms to find (this will change in coming years as US firms are now promoting FCPA / White Collar to their 2L summers who are fluent in Mandarin and have an interest in transferring to China at some point).
Legal Week quoted Kinney’s Head of Asia, Evan Jowers, extensively in the following relevant article here.
There is a new trend in the market, though, where mid-level transactional US associates, fluent in spoken Mandarin and written Chinese, are interviewing for and in some cases landing junior FCPA / White Collar spots in Hong Kong / China at very top tier US firms.
When the LexisNexis Cloud Technology Survey results were reported earlier this year, it showed that attorneys were starting to peer less skeptically into the future, and slowly but surely leaning more toward all the benefits the law cloud has to offer.
Because let’s face it, plenty of attorneys are perhaps a bit too comfortable with their “system” of practice management, which may or may not include neon highlighters, sticky notes, dog-eared file folders, and a word processing program that was last updated when the term “raise the roof” was still de rigueur.