How do you think we pick lawyers to defend us in litigation?
Judging from some of the emails I get, this is the picture in your mind’s eye:
“Hey, boss, we just got sued in New York. We’ll have to defend ourselves.”
“Shoot! New York City! Do they have any lawyers there?”
“Damned if I know. Lemme grab the New York City phone directory and take a look.”
An hour later:
“Good news, boss. There’re a whole gaggle of lawyers in New York. I think we should hire Bigg & Mediocre.”
“They have an 800 number, so we’ll save some money. And they have a whole bunch of lawyers; one of ‘em probably knows what this ‘RICO’ thing stands for. And their website is really fancy; you wouldn’t believe it.”
“Great! Call that 800 number and ask them to connect you to a litigator.”
If that’s what corporations are doing, then at least you know how to develop business . . . .
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!
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 . . . .
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…
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. . . .
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…
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….
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?
* 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]
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.
Jiminy jillickers! ATL editors are going all over the place over the next month or so. Or at least all over the Eastern Seaboard. If we aren’t heading to your neck of the woods on these trips, never fear, we may hit you up on the next time around. We’ve already hit up Houston, Chicago, Seattle, San Francisco, and Los Angeles in the past year.
Kinney Recruiting’sEvan Jowers is currently in Hong Kong for client meetings and still has a few slots available through October 22. Evan will also be in Hong Kong November 14 to December 15. Further, Robert Kinney has been in Frankfurt and Munich this week and is available for meetings with our Germany based readers.
One of our key law firm clients has referred us to one of their important clients in the US, Europe and China – a leading global technology supplier for the auto industry – in order to handle their search for a new Asia General Counsel and Asia Chief Compliance Officer.
Kinney is exclusively handling this in-house search.
This position will have a lot of responsibility and include supervision of eight attorneys underneath them in the Asia in-house team. The new hire will report directly to the global general counsel and global chief compliance officer, who is based in the US. The new hire’s ability to make judgement calls is going to be as important as their technical skill set background.
The position is based in Shanghai and will deal with the company’s operations all over Asia and also in India, including frequent acquisitions in the region.
It is expected that the new hire will come from a top US firm’s Shanghai, Beijing or Hong Kong offices, currently in a top flight corporate practice at the senior associate, counsel or partner level. Of course, the candidate can be currently in a relevant in-house role.
The JOBS Act created new tools for companies to publicly advertise securities deals online. As a result, thousands of new deals have hit the market and hundreds of millions in capital has been raised, spurring a wealth of new business development opportunities for attorneys.
Fund deals, startup capital raises, PIPE deals and loan syndicates are just a handful of the transactions benefiting from the JOBS Act. InvestorID FirmTM is a platform designed to help attorneys equip their clients with the workflow, marketing and compliance tools to publicly solicit a securities offering online. By providing clients with the tools to painlessly navigate the regulatory landscape of general solicitation, InvestorID FirmTM helps attorneys add value above just legal services.
The Jumpstart Our Business Startups Act (JOBS Act) went into effect in 2013 and permits Regulation D offerings of securities to be advertised publicly. This means that funds and companies can now use social media, emails and web sites to market transactions to new “accredited” investors.
However, with these new powers come new pain points. InvestorID FirmTM provides a secure, fully hosted, cloud-based platform with a breadth of tools for your clients, including: