Mark Herrmann

My column at Above the Law turns three today. Let’s celebrate!

What are the coolest websites for you to visit?

If you never watched this episode of “Old Jews Telling Jokes,” then you missed a treat. Turn down the volume and click through; it’s my birthday!

If you’re not a connoisseur of lowbrow humor, then click here and play the geography game instead! If you’re even slightly nerdy, it’ll entertain you for hours. Go ahead, it’s my birthday!

If you don’t like jokes or games, then you’re a stiff. No matter; you can join the party anyway! One website guaranteed to fascinate stiffs has created some remarkable maps; I’ve linked here to one showing all nuclear explosions since 1945. If that map doesn’t tickle you, click through the categories and find others that do. Go ahead; it’s my birthday!

Where else? Click here . . . .

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I typically limit myself to one rant per column; today, I’m letting fly with two.

My first (narrow) rant is aimed at the Supreme Court of the State of Ohio: Hey, guys, have you heard? It’s the 21st century!

I have the misfortune to live overseas (in London) while maintaining licenses to practice law in three states — California, Illinois, and Ohio. California and Illinois give continuing legal education credit for courses taken by webinar, which seems entirely reasonable in today’s world. Ohio alone opts against reason; for standard CLE credits (as opposed to self-study or publication credits), you must attend a CLE class in person. Riddle me this: Where do you find a live, in-person CLE class in London, England, that’s approved for Ohio CLE credit?

When I was recently back in the states, I was forced to endure 2 1/2 consecutive days of live CLE courses, which will keep me in the Ohio bar’s good graces for the next couple of years. But now I’m throwing down the gauntlet, Ohio: I’m not doing this again in 2015! Give CLE credit for webinars, or I’ll go inactive in Ohio, survive on my California and Illinois licenses, and you’ll be out the $350 registration fee! Not only that — I’ll lobby every other similarly situated person to do the same! It’ll cost you millions! (Shhhh! Please don’t tell the folks at the Ohio bar that I’m probably rallying a group of one: All lawyers licensed in both Ohio and another state — so they can go inactive in Ohio and keep on practicing — while living overseas. If I don’t tell the Ohio bar folks and you don’t tell ‘em, they’ll probably never figure it out. After all, these are the clowns who didn’t think to give CLE credit for webinars.)

But that’s all process; now I’m moving on to substance. The CLE presentations themselves provoke today’s second rant. What mistake, I ask you, do you see made by just about everyone who teaches CLE courses (or, indeed, gives any presentations to live audiences)? More to the point, how can you avoid embarrassing yourself publicly when you speak?

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If you’re hiring a lateral partner at this level, then quality is assumed….

If you’re using Bigg & Mediocre, then quality is assumed….

If you’re hiring only from the top ten percent at the top ten schools, then quality is assumed….

Let me start again:

By the time you get to major league baseball, quality is assumed.

Right. But I’d rather have Babe Ruth than a journeyman outfielder.

We instinctively realize that, in every endeavor known to man, there are true superstars. But, when we talk about lawyers, we somehow assume that they’re all fungible. Or, in the examples I just gave, that all the lawyers within a certain rarefied group are fungible. That’s just not true. There’s quality, and then there’s real quality. In the words of Arthur Schopenhauer: “Talent hits a target no one else can hit; genius hits a target no one else can see.” Talent is nice; genius is better.

If you’re with me so far, then you don’t believe that all law firms are created equal; you don’t believe that all lawyers (or partners) within a single firm are created equal; and you understand that many law firms are basically incapable of true quality control….

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When you’re a real litigator — at a firm, in the trenches, arguing stuff and getting your hands dirty — you see and hear the coolest things.

So I’m sharing a couple of litigation war stories with you today, and soliciting you to share others in the comments.

I’m in the California Court of Appeal in San Francisco. My case is third or fourth on the calendar, so I’m watching the arguments before mine. In the first case, the appellant had been convicted of a bunch of gruesome crimes. It was hard to tell without having read the briefs, but the litany plainly included rape, murder, and the desecration of a corpse. Defense counsel had not exactly lucked out in the selection of an appellate panel: He was arguing to three female judges, all of whom had formerly been prosecutors.

For reasons not entirely clear, counsel was trying to reverse the conviction for desecration of a corpse. He insisted that no evidence supported the verdict, because there was no evidence (I kid you not) that the defendant had jammed the stones inside the victim after she had died. As one of several arguments, counsel tried an appeal to reason. He asked the (seemingly) rhetorical question: “But why would my client have shoved rocks inside the body after she was dead?”

The question wasn’t so rhetorical, after all. One of the judges leaned forward incredulously and asked, with a snarl: “Excuse me, but . . .

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Alright, alright: At one level, it is about the money.

If you’re saddled with $100,000 in student debt and you’re unemployed, some money would help.

But if you’re making $160,000 in your first year out of law school, it’s not about the money.

When I entered the legal workforce, the “going rate” and terms of employment varied regionally in the United States. I chose to work in San Francisco — earning less than the going rate in New York and being entitled to only three weeks of vacation each year, instead of the four offered elsewhere — because I preferred San Francisco to New York. It wasn’t all about the money.

I chose to work at a small firm (I was the 21st lawyer at the joint) — knowing full well that my annual raises would be less at my small firm than they would have been at a large one — because I wanted real responsibility early in my career. It wasn’t all about the money.

When I later moved to one of the biggest firms in the world, it still wasn’t all about the money . . . .

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Folks often ask me if there’s anything I did at a law firm that I now miss in my in-house role.

The truth is that there are a ton of things I miss. (That doesn’t mean that, overall, I regret having moved in-house. It just means that life involves trade-offs, and moving in-house, like everything else, has both advantages and disadvantages.)

What do I miss most about law firm life? Playing the good parts of the litigation game: I loved dismembering an expert witness at deposition and knowing that we’d never hear from the guy at trial. I loved arguing motions and, more than that, appeals (because the stakes on appeal were typically higher and the panel better prepared than a single judge hearing motions). I loved fretting about a legal issue for weeks, having an epiphany, and suddenly knowing how a client would escape a thorny problem. And I loved the camaraderie of a trial site and the excitement of awaiting a jury verdict.

So here’s today question (with the answer after the jump, of course): If you say you love arguing appeals, why don’t you argue some? Tell outside counsel that you appreciate the help he provided in the trial court and writing the appellate brief, but that you’re going to argue the appeal. You’re the in-house lawyer; you pay the bills; you can do this. If you want to argue appeals, why don’t you?

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I took the train to Paris recently. (Sorry — I can’t help myself. I just love typing those words.)

That gave me an uninterrupted two hours to edit a document on the way to Paris and another uninterrupted two hours to edit a document on the way home.

The experiences couldn’t have been more different.

What’s odd is that it wasn’t the quality of the drafts that made the experiences different for me (the editor), but rather the quality of the reactions that I anticipated receiving from the authors.

How can that be? How can an editor enjoy revising one document and loathe revising another based solely on the anticipated responses to the edits? And what lessons might that teach the author (the person being edited)?

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Sometimes, the conventional wisdom is dangerously wrong.

Today’s conventional wisdom is this: “Never do any direct examination of your own witnesses at [discovery] depositions. These witnesses are under your control. If opposing counsel tries to use the deposition testimony against you in a motion, you’ll just get an affidavit from your witness and fix the problem. If opposing counsel tries to use the bad testimony against you at trial, you’ll just call the witness live at trial, and you’ll fix any issues with the testimony there. Doing direct examination during the deposition just gives opposing counsel advance notice of the way you’ll fix the testimony later.”

(Some folks will admit to an exception or two to this rule. If the witness said “yes” and meant “no,” then maybe you have to fix that on the record at the deposition. If the witness is 95 years old and has a bad cough, then maybe you should do a direct examination during the deposition. But those exceptions are typically few and far between.)

If you haven’t yet heard this conventional wisdom, then either (1) you’re not a litigator or (2) you haven’t yet defended your first deposition of a person under your control.

I’m here today to tell you why this conventional wisdom is often wrong. . . .

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I wrote several weeks ago about why I should waste time — why I should attend some meetings at which I’m not really necessary. I should do this to learn what folks on my team are doing on a daily basis, to have a chance to work one-on-one with more people who ultimately report up to me, and to improve employee job satisfaction by having a manager show interest in employees’ work.

To my in-house eye, that’s not “wasted” time; it’s “invested” time — time that improves our collective well-being, even though it doesn’t result in my having completed a specific task that the organization needs accomplished.

As I think about it, I see an awful lot of these things in-house that I would never have seen at a law firm. For example, several weeks ago, we decided to invite a junior in-house lawyer to attend meetings of our “Corporate Ethics Committee,” at which a fairly senior group addresses, among other things, important issues that arise through our corporation’s anonymous ethics hotline. We didn’t invite the junior lawyer because his or her attendance was important to the committee’s deliberations; rather, we thought that attending the committee meetings would provide helpful training and give the junior lawyer more exposure to senior people in the department.

At a law firm, everyone would spit in your eye if you suggested that a junior person should unnecessarily attend a meeting simply for the sake of training and exposure: This would constitute either over-billing the client or wasting potentially billable hours. . . .

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First things first: I’m heading back to the States for a couple of weeks in October, and Troutman Sanders and Miller Canfield have already asked me to take advantage of that visit by giving my “book talk” about The Curmudgeon’s Guide at those firms. That means I’ll be blowing the dust off my speaking notes and reminding myself what I say. I might as well get some bang for the dust; if you’d like me to give the book talk at your firm (or school) in early October, please let me know.

Second things second: Citi, Wells Fargo, and PeerMonitor recently released their analyses of law firm performance to date in 2013, and the pundits were all a-twitter. (Well, all a-blogger, anyway, but the pundits are so retro.)

Here’s one question the pundits posed: Why is law firm headcount up when law firms are suffering from decreased demand for their services?

That’s a pretty good question, and there’s no obvious explanation. Being a curious fellow, I used a clever technique to get to the bottom of this: I asked.

After the jump, I explain why firms are hiring more lawyers during a time of weak demand (as explained by senior partners at a couple of firms) and note an overlooked aspect of 2012 law firm performance that may affect results in 2013 . . . .

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