Mark Herrmann

There’s a six-year-old trapped inside of me, pounding on the inside of my skull and screaming to get out. (Many of you would say that the quality of these columns proves that I don’t manage to keep the kid fully contained. Yeah, well: It’s a good thing you’ve never heard any of my jokes.)

My inner six-year-old likes to understand things. He likes e-mails and memos that start at the beginning; use short, declarative sentences in the middle; and conclude somewhere near the end.

He likes easy rules that he can understand and then immediately put to use, so he remembers the rules in the future. It was surely my inner six-year-old who developed the “one rule you as a witness must remember” when you’re having your deposition taken: “Listen carefully. Pause. Answer narrowly.” To the six-year-old’s eye, that’s the essence; “the rest is commentary.”

My inner six-year-old recently realized that outside counsel have it easy: For each entity they represent, outside lawyers typically communicate with just one person who serves as the “client.” Although the outside lawyers may meet many corporate employees, the outside lawyers view themselves as speaking to the “client” when they talk to the in-house lawyer who’s supervising their matter on a daily basis. That’s the one key point of contact.

My inner six-year-old realized that this isn’t true for in-house lawyers. In-house lawyers have three clients….

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Years ago, I saw a memo written by a law firm partner who was renowned for mistreating junior partners, associates, staff, and lost children who wandered in the front door looking for their parents. But this memo showed a whole different personality. The memo was directed to a practice leader who had solicited comments about how best to expand the practice. (In case you’re wondering, the memo was distributed widely by mistake. The practice leader told his assistant to gather in one document all of the comments about how to improve the practice, so the comments could be shared and everyone could discuss the ideas at an upcoming meeting. The assistant then took all of the unedited inbound memos and assembled them in a single packet that she distributed to the entire group. Voilà! There was the ogre’s memo, for all to read.)

The ogre’s memo was breathtakingly — what’s the right word here? — “solicitous” to the practice leader: “I’ll satisfy your request for suggestions about how to expand this practice area further, but we should first acknowledge what you’ve achieved to date. When you were appointed to lead this practice ten years ago, everyone thought you’d been sent on a fool’s errand. No one thought it was possible for our firm to compete in this space. We had no cases in the area and none of our lawyers had any expertise. But you’ve defied all the odds. You’ve made this practice one of the great success stories in the firm. You deserve endless praise for what you’ve done, and I want you to know how much we respect — indeed, admire — you.” And so on.

Don’t get me wrong: I understand the fine art of sucking up. (I’m not much good at it, but I understand it.) And I appreciate the wisdom of people like the ogre who try to do their sucking up in private. But I don’t understand folks who do these things publicly. Can’t we control at least the public manifestations of unequal treatment being accorded to people who matter to you and people who don’t?

What am I thinking of?

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I’m fast approaching the two-year anniversary of my move in-house, and I don’t often look back wistfully on my former life as a partner at one of the world’s largest law firms.

But last Tuesday was different. Please bear with me.

For 25 years, I practiced, and tried to develop new business, in the complex litigation space. I worked at a firm that wasn’t interested in defending companies in one-off pharmaceutical product liability or Automobile Dealers’ Day In Court Act cases. Those cases were frequently insured (and the carriers often wouldn’t agree to pay our rates) or otherwise too small to fry. But the moment one of those silly little cases morphed into something real — a mass tort or a Dealers’ Act class action — we were chomping at the bit to get retained.

It’s tricky to market into that niche: “I don’t want your ‘drug caused an injury’ case until you have 1,000 of them. Then, even though I spurned you before, I want you to hire me to displace (or, at a minimum, supplement) your existing counsel on the cases.” The existing lawyer already knows the facts and the law, and ignorant you, who showed no interest before, now wants to butt in. How do you pitch that?

I figured the answer was to develop a reputation at the point where small cases transmogrified into big ones: the filing of a class action, the filing of enough cases that a motion for multidistrict litigation became likely, and advising companies how to respond when “60 Minutes” or “20/20″ called for an interview. I thus spent an awful lot of time writing about those topics and speaking at any conference that would give me a lectern and a worthwhile audience.

Then I moved in-house and changed my focus entirely. Until last Tuesday . . .

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Two comments from folks who recently moved in-house prompt this post.

The first comment came from a guy who spent more than ten years with an Am Law 100 firm before moving in-house: “When I was reading the newspaper on Sunday, I realized something. Before I moved in-house, I never truly understood ‘Dilbert’ and the cubicle culture. Now, I do.”

The second comment came from a guy who spent more than 20 years with two different AmLaw 100 firms before moving in-house: “When I moved laterally between law firms, my new firm understood that my time had value. I arrived at 9 on the first day and was working on client matters before noon. My office was ready to go, and we held the bureaucratic stuff to a minimum.

“I moved in-house, and it took days before I could start working. I screwed around with immigration forms and health insurance; I needed computer passwords; when I arrived, my office didn’t have even a pen and pad of paper, let alone a telephone or a computer in it. You realize pretty quickly that you’re in a nonbillable world, and no one seems to care very much whether or not you actually do anything. I figure that, if they don’t care, why should I?”

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There’s one guy in your outfit who understands the need not to write stupid e-mails: That’s the guy who just spent all day in deposition being tortured with the stupid e-mails that he wrote three years ago.

That guy will control himself. He’ll write fewer and more carefully phrased e-mails for the next couple of weeks. Then he’ll go back to writing stupid stuff again, just like everyone else.

You can’t win this game; no matter what you say, people will revert to informality and write troublesome e-mails. But you’re not allowed to give up. What’s an in-house lawyer to do?

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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?

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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.”

What happened?

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.

This can make in-house life odd….

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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?

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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.

What do you use those notes for?

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I am not a mentor!

Never have been. Never will be. Don’t care to be.

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….

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