Outside Counsel

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, . . .

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About a year ago, we brought our readers some stats on the Biglaw firms that were representing some of America’s biggest companies. While that information was interesting, it only covered firms that were currently involved in litigation on behalf of Fortune 100 companies, leaving all of the worthy dealmakers out in the cold. To make matters worse, we only knew which firms were in court the most frequently on behalf of corporate clients — we knew nothing about their success rates.

Now, we’ve got a list that general counsel will really be interested in — a list of the Biglaw firms that are the best of the best in terms of client service. Are you sick of your outside counsel giving you the runaround? Are you tired of receiving deliverables that are off the mark?

These are the firms that have been rated the “absolute best” by general counsel…

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The preferred methodology for phone threats.

* Bad boy! After last week’s dramatic bench performance by Justice Samuel Alito, the Alliance For Justice, a liberal watchdog group, is petitioning the Supreme Court to adopt and adhere to a code of conduct. [National Law Journal]

* There’s been a changing of the guard at the Supreme Court, where Scott Harris will be stepping into the role of Clerk of Court in September. Here’s hoping he can fill William Suter’s shoes. [Supreme Court of the United States]

* If you’re in-house and searching for the best outside counsel, you may be best served by going to one of these Biglaw firms. But which were the “absolute best”? Take a wild guess. [Corporate Counsel]

* “Let’s record this as a threat…” If you say so. Wherein a former Bryan Cave attorney gets federally indicted for threatening to murder a colleague still employed at the firm. [St. Louis Post-Dispatch]

* And just like that, the tide keeps on rolling. With the departure of Kenneth Randall, Alabama Law has appointed Professor William Brewbaker as acting dean until an interim dean is chosen. [AL.com]


Tomorrow, I’ll be going into a meeting with the folks from finance, and they’ll ask me: “How much are we going to pay in the Smith case, and in what quarter?”

[Note to accounting purists: We'll assume that we could reasonably win Smith, so liability is not probable.]

To be sure that I have the most informed opinion possible, I call outside counsel and cleverly ask: “How much are we going to pay in the Smith case, and in what quarter?”

And outside counsel starts the usual spiel:

“Life is full of surprises. The Lord works in mysterious ways. Litigation is like a black box; you never know what’s inside until you’ve opened it, and by then it’s unstoppable.”

“Yeah, yeah, yeah,” I say. “But how much are we going to pay in the Smith case, and in what quarter?”

“Well,” says outside counsel. . . .

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Let’s assume for a moment that arithmetic is true.

This means that the average lawyer is average.

And average is actually pretty bad. (As one of my co-clerks said during the first week of a clerkship, reading a Ninth Circuit brief several decades ago: “This is great!”

“What? Is the brief good?”

“No! The brief is terrible. We are not gonna starve!”)

The average lawsuit thus pits Tweedledee against Tweedledum, and, sadly, they can’t both lose. After the verdict comes down, Tweedlewhoever boasts on his website of another great victory and yet more proof of his talent and expertise.

Twenty years later, what does that look like?

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Although I won’t name names here (because my employer is, among other things, the insurance broker to the stars, and I can’t afford to offend clients or potential clients), I just stumbled across an article that indirectly told me how to pick outside counsel.

In a relatively high-profile situation, a government entity recently had to retain an outside law firm. The government naturally retained an outside adviser to help the government make its choice. (How else could one possibly pick counsel?)

The outside adviser — I think you’d call the outfit a management consultant, although the website left me a little confused — has lots of MBAs on staff, but there’s not a lawyer to be seen. No matter: The MBAs created a questionnaire for the law firms to fill out, and the law firm that accumulated the most points won the business.

This is great! It’s time (once again) for me to stop thinking and start copying! We’ll revamp our whole system for choosing counsel! In the future, we’ll give the law firms who want our business a form to complete. We’ll add up the points — even I can do that. And then we’ll choose the law firm with the most points, thus retaining the best firm in the world to handle our matter through an objectively defensible selection process, in case anyone ever wants to second-guess our choice of counsel.

Shoot! If only I’d gone to business school, I could have been this smart! Let’s take a look at the questionnaire, so I’ll know the form that I’m copying to choose counsel for my next case . . . .

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I really like what Bruce MacEwen does over at Adam Smith, Esq. He thinks hard about the legal profession, and he says smart things that you won’t find elsewhere.

But he’s not perfect. He recently wrote that clients were partly responsible for the demise of Dewey (which may well be true) because clients had endorsed “the . . . toxic notion that you hire the lawyer, not the firm.” Here, I beg to differ.

Hiring “the lawyer, not the firm” is not a toxic notion; it is sanity.

Hiring the firm would be nuts, for at least two different reasons. First, the firm has many invidious institutional incentives: Let’s suppose you “hire the firm” by calling the managing partner (or head of litigation, or whoever) to say that you have a new case that you’d like the firm to handle. The managing partner naturally pokes around to see “who has time.” Presto! Your case would be staffed with the partner who has nothing else to do, because the firm can’t foist that guy off on any other sorry client. That inept partner would likely be assisted by a few associates who also “have time,” and you’d be wallowing in B-team city.

Not for me, thank you very much.

If you’re an intelligent client, you don’t want the lawyers who “have time;” you want the lawyers who “are good.” There’s no reason to think those two categories overlap, and plenty of reasons to think they do not.

And I’m just getting warmed up here . . .

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* “We know in our hearts that for the United States of America, the best is yet to come.” Barack Obama was re-elected as president. Bring on the hope and change! No, seriously. [New York Times]

* In news that shouldn’t come as a surprise, regardless of who won the presidential race, there are still post-election voting issues that will likely be resolved in the courts. [Blog of Legal Times]

* But what we really want to know is who will be our country’s next attorney general. Because if anyone can fill Eric Holder’s shoes, it’s Preet Bharara, the U.S. attorney for the S.D.N.Y. [WSJ Law Blog]

* In other important news, several states approved gay marriage ballot initiatives, and others legalized marijuana. But hopefully you don’t have a case of the munchies yet — federal law still says it’s illegal. [CNN]

* They helped American citizens “ba-rock” the vote: hundreds of law students from around the country rallied around the craziness of Election Day to volunteer their assistance to worthy causes. [National Law Journal]

* Biglaw firms in NYC are still reeling after Hurricane Sandy. While WilmerHale set up temporary offices last week, both SullCrom and Fried Frank could be out of commission for weeks. [Reuters; New York Times]

* At this point, in-house counsel are kind of like the McKayla Maroneys of the legal profession, because they are seriously unimpressed with outside counsel’s efforts to improve services and fees. [Corporate Counsel]

* Judge Theodore Jones, associate judge of the New York Court of Appeals, RIP. [New York Law Journal]

Previously on Moonlighting, we considered some common mistakes that law firm attorneys make when pitching their firms to seek work from new clients. It featured such dramatic gems as: find out who our enemies are; BS sounds like… gee, whaddya know… BS; and cameos from other need-to-know concepts making their appearance on the big (computer) screen.

In this week’s episode article, we’ll look at the other side of the coin, with a remake that focuses on the in-house lawyer’s perspective. What are some ways that in-house lawyers can ensure that they get the most out of those pitch meetings?

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You’re an attorney at a mid-sized or large firm and have received an opportunity to pitch your firm’s work to a brand new prospective client. You’ve researched the company and the deals that your firm has worked on that would be a good match. All you have to do is go into the meeting sounding like you know what you’re talking about, and soon you’ll be raking in the hourly dough, right?

Perhaps. Many attorneys would be benefit from heeding Alexander Graham Bell’s words: “Before anything else, preparation is the key to success.” A lot of you falsely believe you’re just unnaturally talented at just winging it. And most of the companies you pitch to will never tell you that no, you’re really not. What follows are some actual examples of some common mistakes that lawyers make when pitching their firms to in-house counsel….

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