Mark Herrmann

Inside Straight: Pessimism Has Its Pleasures

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According to George Will, “Pessimism has its pleasures. Ninety percent of the time you’re right, and ten percent of the time you’re delighted to be wrong.”

That’s how I go through life.

What made me a pessimist? Nature or nurture, perhaps? (Should I blame my parents’ genes or their parenting skills?) Decades defending litigation, which forced me perpetually into a defensive crouch? (If that’s the reason, then plaintiffs’ lawyers must be optimists.) Or my preferred explanation: Keen observation of reality, coupled with endless experience, naturally breeds pessimism.

As an outside lawyer, my pessimism meant that I presumptively expected the worst (or, at a minimum, the least) from colleagues, opposing counsel, clients, and courts. Those folks generally performed precisely to my expectation, reinforcing my pessimism.

As an in-house lawyer, how does pessimism infuse life?

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Inside Straight: Does Going In-House Ruin Your Skills?

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I’ve recently heard two seemingly related thoughts: (1) lawyers’ legal skills deteriorate when they go in-house and (2) this makes it harder to move back to a law firm.

I doubt that the difficulty in moving from an in-house job to a law firm (if that difficulty exists at all) has anything to do with one’s skills having deteriorated. Although one headhunter recently told me that it’s hard to go back to a firm after you cross the in-house Rubicon, he insisted that was because most in-house lawyers won’t naturally bring a book of business to the firm that hires them. (I stuck the qualifier “most” in there intentionally. Some in-house lawyers move to a firm, bring the corporation’s legal work with them, and do quite well. But that’s not the typical situation.) It’s no surprise that lawyers who bring clients with them find jobs more easily than lawyers who do not. In-house lawyers often can’t guarantee that business will travel with them, so it’s possible that in-house lawyers are less attractive candidates for firms.

But that’s not my main point today. I also don’t agree that moving in-house automatically causes a lawyer’s skills to deteriorate. How going in-house will affect your skills depends on the nature of your in-house position, how your corporation works, and what skills you’re thinking about . . .

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Inside Straight: On Lawyers’ Business Plans

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Breaking news to lawyers at firms: In-house, we have these things called “business plans.”

Our business units prepare those plans at least annually. The plans typically contain both general objectives (such as achieving a specified level of organic growth, or margin, or whatever) and concrete steps that the business will take to achieve those objectives (such as introducing new products, controlling specified expenses, or whatever).

In-house law departments may create those plans, too. We commit to implement controls, or improve response times, or give a specified number of training sessions to a specified number of people, or the like. Depending on the corporation, a lawyer may be paid less than his target bonus if he doesn’t achieve his objectives and perform according to plan. A system like that is pretty good at grabbing folks’ attention and causing things to be done.

Do law firms (or individual lawyers at firms) prepare business plans?

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Inside Straight: Kvetching About Comp

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I worked for twenty years at the darkest of the black-box compensation law firms: No one knew what anyone else was being paid, and the firm forbade talking about compensation. Here’s the curious part: We obeyed.

I saw the raised eyebrows of partners considering moving laterally to my firm: “Right — no one talks about compensation. You guys must talk about it all the time, just like we do at my firm. It can’t be a secret.”

Wrong. We really, honest-to-God did not talk about compensation. The subject just didn’t come up.

I’ve heard second-hand that this is true for other black-box firms, too. The managing partner of a different large, black-box comp firm recently told one of my colleagues: “Once you take compensation out of the limelight and forbid people from talking about it, then people stop talking about it. The subject drops off the table.”

That sets the stage: At firms where lawyers are permitted to talk about each other’s compensation, they do. And at firms where lawyers are prohibited from talking about compensation, they don’t.

Riddle me this: In corporate law departments, we are not prohibited from discussing each other’s compensation, but we don’t do it anyway. Why is that?

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Inside Straight: Dewey Know Who’s Next?

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I’ve watched Dewey’s collapse only from a distance, as have most lawyers. And I’m no student of law firm finances or management. But this struck me as I read the news:

Dewey: 2012.
Howrey: 2011.
Thelen: 2009.
Heller: 2008.
Coudert: 2006.
Brobeck: 2003.

And I’m probably overlooking other recent collapses of prominent firms, since I cobbled together that list from the names that came to mind unprompted.

This history suggests that another large, well-respected firm will collapse next year, and it’s a near certainty that a firm will collapse within the next two years. Who will it be?

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Inside Straight: On Robin Williams And Saying ‘Thank You’

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First, a stand-up comedy routine; then, my point.

In the early 1980s, Robin Williams performed in a nightclub. His performance was taped and later broadcast by HBO. During the performance, Williams spied on-stage a wine glass filled with a clear liquid (which was, in fact, water), and Williams was off and running:

“There are white wines. There are red wines. Why are there no black wines?

“Reggie wine! It’s a m*therf*cker! Goes with meat; goes with fish; goes with any damn thing it wants to.

“I like my wine like I like my women — ready to pass out.

“We’ll get Mean Joe Green to advertise the stuff: ‘Reggie wine! Drink this sh*t or I’ll nail your ass to a tree.’”

After HBO broadcast the performance, an African-American winemaker named David Rege (pronounced “Reggie”) sued Williams and others in California state court, claiming that Williams had damaged Rege’s reputation and adversely affected the sales of his wine. (You knew there was a lawsuit tucked in here someplace, didn’t you?)

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Inside Straight: Breakfast With Easterbrook

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At a breakfast last week, the Seventh Circuit Bar Association learned the true meaning of going “from the sublime to the ridiculous”: As Judge Frank Easterbrook took his seat, I approached the lectern.

I won’t burden you with the subject of my remarks (regular readers of this column could probably guess), but I’ll share the sublime. Judge Easterbrook said one thing, and he failed to mention another topic that he often raises.

Judge Easterbrook explained that, as a young lawyer, he had sent a brief to the Third Circuit for filing. The clerk rejected the brief and mailed it back. Easterbrook called, and the clerk’s office explained that it had rejected the brief because the back cover was the wrong shade of blue — a shade specified by an unwritten local rule. Easterbrook asked if there were any other unwritten rules, and the clerk said he wasn’t sure. Easterbrook mailed a revised version of the brief, which the clerk’s office again rejected — this time for violating a different unwritten local rule. On the third try, the clerk’s office finally accepted the brief. Easterbrook swore that, if he were ever the chief judge of a circuit, all of the rules would be in writing. Easterbrook then told the assembled crowd that (1) the Seventh Circuit’s written rules are fairly comprehensive and (2) the clerk’s office is extremely helpful if you call for advice, so there’s no longer an excuse for not complying with appellate local rules.

Judge Easterbrook last week chose not to discuss a different subject. One of the other folks who attended the breakfast meeting told me that the judge often raises this in his talks . . .

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Inside Straight: The Generational Divide In Legal Humor

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Consider this definition (which I’m borrowing from my own work):

“Business development: Playing golf with old college buddies. As in: ‘Of course I charged the firm for my business development trip to Scotland.’”

If you’re in high school, you did not think that was funny.

If you’re in law school, you have a bemused look on your face.

If you’re 50 years old and work at either a large law firm or a large corporation, you may well have just laughed out loud.

Why is that? I submit that there’s a generational divide in legal humor.

When my daughter was in first grade, and her classmates were all losing their baby teeth, I picked up Jessica’s arm one day and felt around in her armpit. “Hey, Jessica,” I asked, “are any of your classmates losing their baby arms yet?”

Jessica didn’t laugh. Instead, she gave me a look that said, “I’m pretty sure that he’s kidding — but if he’s not, this really sucks.”

I got that same look recently from a bunch of students at the University of Chicago Law School . . . .

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Inside Straight: Why Are Elections Like E-Discovery?

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For a couple of centuries, we thought that American elections were precise: People voted; the government counted each vote; we knew which candidate received how many votes.

In the year 2000, we learned that elections are approximations. Votes are miscounted; chads dangle; we don’t in fact know precisely who received how many votes. Elections are a human process after all, and they can’t bear the weight when we insist on precision within the margin of error.

So, too, with litigation. I recently spoke to one of our outside litigators who had seemingly vanished from the face of the earth for several weeks. He told me that one of his clients had run into a now-typical e-discovery disaster: His client had overlooked some documents; a computer system had automatically deleted some other documents; when the client corrected the situation, it did so imperfectly; the judge (who came from a government background and had no experience in private civil litigation) was quick to spy “bad faith.” Why, this outside lawyer asked, don’t judges appreciate the difficulties presented by e-discovery?

My thesis (for today, anyway) is that e-discovery is like elections: It’s an approximation, and participants in litigation (parties, counsel, courts) should understand that it may not bear the weight when the judicial system insists on precision within the margin of error . . . .

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Inside Straight: The Annoying Ramblings Of An Uber Douche

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First things first: Thank you.

In response to my solicitation a couple of weeks ago, my “commenters” and correspondents provided ample material for the last chapter of my forthcoming book, Inside Straight. The “commenters,” I must say, will test the mettle of whomever ABA Publishing assigns to edit the manuscript. I asked my readers to propose a subtitle for the book, and I promised to re-print in the book the best (and worst) of the suggestions. To my eye, Inside Straight: The Annoying Ramblings of an Uber Douche and Inside Straight: But Outside? Pretty Into Dudes both made the cut. But I’m easy; the unfortunate editor at the ABA will have his hands full.

(Why seek to savage myself in public? Because roughly 97 percent of visitors to Above the Law never bother to look at the comments. I’d like the book to reveal to those typical readers the odd relationship that bloggers can have with their blaudience. That relationship is multifaceted; people should understand both the vitriol of the commenters and the wisdom of crowds.)

Thanks also to my correspondents (including one New York Times bestselling author, who’s also a lawyer) who provided some additional “advance praise” that we’ve posted at the pre-publication web page offering Inside Straight for sale.

But enough of that. Let’s get back to business: What annoying ramblings can the uber douche inflict on readers today? Business meetings! We have them all the time, and people misuse them. We meet with outsiders whom we’re trying to impress, and we then cross-examine each other and reveal that we’re not very impressive at all. We meet to solicit help from business folks, and the lawyers blather on about legal technicalities that neither interest nor inform anyone. How can we fix this?

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