Outside Counsel

For months, we talked to counsel about our prospects in the case. He was sanguine:

“There’s nothing to worry about here. The plaintiff put a huge number in its prayer for relief, but you can’t possibly lose that much. Plaintiff’s liability case is thin, and the damages are inflated. You’ll probably win. If you lose, you’d lose no more than $1 million on an average day. On the worst day known to man, you can’t even theoretically lose more than $5 million. I wouldn’t offer more than a couple hundred grand to settle.”

A few months before trial, we ask counsel to put some skin in the game: “It’ll be expensive to try this case, and you feel good about our prospects. We’d like you to propose an alternative fee agreement that aligns your interests with ours. We’d like to pay you less than your ordinary hourly rates in the months leading up to trial, but we’ll give you a success fee if we win. Please think about it, and let us know if you have any ideas.”

A couple of weeks pass, as counsel discusses the case with his firm’s “senior management.” When the alternative fee proposal arrives, the goalposts have miraculously moved! In the course of just two uneventful weeks, our prospects for success have changed entirely!

double red triangle arrows Continue reading “Mirabile Dictu! Alternative Fee Proposals That Move Goalposts!”

When you work at a law firm, you must actually solve problems.

If you’re paid to win a case, you must identify the route to victory and develop the facts that take you there. (“They don’t pay us $15 a minute to lose.”) If you’re arguing an appeal, you must anticipate every possible question and figure out a persuasive answer to it.

There’s no place to hide and no one to whom you can push hard issues.

Not so in a corporation: If an issue is insoluble, just send it to the law department! That puts the matter to rest, and you didn’t have to figure out the answer!

Remarkably, I’ve seen this solution proposed not just by folks who work in-house, but by outside counsel, too . . . .

double red triangle arrows Continue reading “If The Issue Is Too Hard, Just Send It To Law!”

The future of elite Biglaw firms?

Historically, the elite Biglaw firms derived safety and security from the knowledge that they could depend on big fees from large institutional clients. After all, where would the big dogs feel confident sending their legal work if not to a giant, white-shoe firm, with a complete support staff and the cream of the law school graduating crop? It encouraged behemoth firms and no small amount of complacency.

No one doubts that we’ve entered a new normal and that Growth Is Dead (affiliate link), but a new study confirms that there’s even more bad news for the top Biglaw firms: GCs simply don’t want them any more…

double red triangle arrows Continue reading “General Counsel Increasingly Dumping The Top Biglaw Firms”

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. . . .

double red triangle arrows Continue reading “The Need For Direct Exams Of Your Own Witnesses At Depositions”

Each year, Corporate Counsel compiles a list of the law firms that Fortune 100 companies use as outside counsel. This year, to change things up a bit, it seems like the list has been expanded to cover the entire Fortune 500. From Apple to Yahoo, and every billion-dollar company in between, these corporate clients expect nothing short of the best in terms of legal representation when dealing with high-stakes litigation and deals. If you’re looking to line your firm’s pockets, you better head to the RFP line when these companies seek lawyers.

Up until last year, only the most prominent Biglaw firms (like Cleary, Davis Polk, Cravath, and Simpson Thacher) topped the list of those that had the pleasure of doing business with the country’s biggest companies. Things changed rapidly, however, when Big Business tried to cash in on deals for legal services. The firms that were willing to cave to the pressure of providing alternative fee arrangements won in a big way, and the rest were left in the dust.

Have these prestigious firms changed their ways? Is Corporate America again willing to open its fat wallet for them? Let’s find out…

double red triangle arrows Continue reading “Who Represents America’s Biggest Companies? (2013)”

Business development sometimes seems like an impossible task. Winning new clients, or generating new business from existing clients, isn’t easy. If you doubt this, check out in-house columnist Mark Herrmann’s excellent column, Nothing You Can Say Can Cause Me To Retain You (explaining all the strategies for trying to obtain his business that won’t work). The challenge of getting new clients explains why so many firms resort to effectively trying to buy clients, by luring lateral partners and hoping their books of business come with them.

But still, every now and then a law firm does get hired by a new client. And every now and then a law firm gets fired by an existing or even longstanding client (even though it’s not easy to displace incumbent counsel, especially if they’re decent).

Why do clients hire and fire their outside counsel? A new survey offers some answers….

double red triangle arrows Continue reading “Why Do Law Firms Get Hired — And Fired — By Their Clients?”

Over the last two decades, a dedicated Supreme Court bar has gained prominence, focusing on arguing the increasingly few cases before the justices each term. These lawyers face fierce competition in persuading clients to hire them, participating in a not-so-glamorous competition known in the industry as a “beauty contest.” At these lawyerly pageants, attorneys competing to take the case make their pitch and try to persuade the client that their firm is the best suitor.

In my new book, Unprecedented: The Constitutional Challenge to Obamacare (affiliate link), I go backstage and look at two of the most high-profile beauty contests in Supreme Court history: who would represent (1) the National Federation of Independent Business (NFIB) and (2) twenty-six states in their respective challenges to the constitutionality of Obamacare.

How did these litigants go about choosing their counsel? Which lawyers and law firms got passed over?

double red triangle arrows Continue reading “The Supreme Court ‘Beauty Contest’: A Behind-the-Scenes Look”

* Judges on the Third Circuit bench must really ♥ boobies. Breast cancer awareness bracelets can’t be banned by public schools if they aren’t lewd and if they comment on social issues. [Legal Intelligencer]

* A bevy of Biglaw firms were involved as advisers in the sale of the Boston Globe, Newsweek, and the Washington Post, including Cleary Gottlieb, Cravath, and Morgan Lewis, among others. [Am Law Daily]

* After surviving a motion for disqualification, Quinn Emanuel will continue to represent Snapchat. A short video of John Quinn laughing his ass off will be available for the next 10 seconds. [TechCrunch]

* Alex Rodriguez, the only MLB player who will be appealing his drug-related suspension, has hired Reed Smith and Gordon & Rees to hit it out of the park during arbitration proceedings. [Am Law Daily]

* Don’t say we never did you any favors: Here are the top 5 mistakes new in-house counsel make from the perspective of outside counsel. Take a look before you make them yourselves. [Texas Lawyer]

* We saw this coming back in June (seventh item), but now it’s official. Prenda Law has dissolved after posting six figures in bonds for various ethical sanctions. Next step, bankruptcy? [National Law Journal]

* If you’re interested in applying to a top 14 law school, make sure your stats and your story are both compelling. No one likes a boring law student. [Law Admissions Lowdown / U.S. News & World Report]

Riddle me this:

Why do you send your emails about our big litigation victories to everyone in the C-Suite, Finance, the Business Leaders, and the rest of the world, with a copy to me, but you send your emails about our big litigation defeats to me alone?

Why do law firm promotional materials always describe recent cases at excruciating length and never briefly offer practical solutions? I might actually read something titled, for example, “Three Policies That You Must Revise Now That The Defense Of Marriage Act Has Been Held Unconstitutional.” (If I received that email, I must have overlooked it.)

Why does your email ask if I’m free at a certain date and time for a meeting without telling me “free for what”? Even if I’m otherwise booked or theoretically on vacation, I’m completely free for the CEO and the Board of Directors. On the other hand, I’m never free for the guy from IT who wants to drone on endlessly about user specifications for the new BPOS platform.

Why do law firms. . .

double red triangle arrows Continue reading “Riddle Me These: Questions From An In-House Lawyer”

I recently heard the managing partner of a regional law firm say that alternative fee arrangements are like teenage sex: “More of it is being talked about than is actually being done, and the little that’s being done is being done poorly.”

My corporation now uses alternative fee agreements for a large percentage of its work. All of those arrangements have worked out acceptably, and one (which I’ll discuss after the jump) has played out spectacularly. The harder question is this: How does one convince tens of thousands of readers to click through the jump (and “continue reading”) a column about alternative fee arrangements (because clicks through the jump are, after all, the relevant metric to the Above the Law gang)?

I’ve got it! Gin up a riddle, and put the question before the jump and the punch line after. What reader could resist?

So — riddle me this:

What’s the similarity between discussions about alternative fee agreements and elephantine mating?

Both take place on a high level, involve much trumpeting, . . .

double red triangle arrows Continue reading “On Elephantine Mating And Alternative Fees”

Page 1 of 41234