In-House Counsel

Don't Be That In-House Counsel

Do your job, but beware of taking the whole "being a lawyer" thing too far.

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nerd largeAs an in-house counsel, it’s hard for me to write this and admit that sometimes, we may take the whole “being a lawyer” thing too far.

I have long defended in-house as the unsung heroes of the office. The ones responsible for guarding the fate of the company without ever receiving proper recognition.

Despite my over-inflated perception of the role of in-house counsel, we are routinely portrayed as the nerdy bloviators by Hollywood scribes (who are seemingly paid by the volume of their words rather than the quality of their thoughts). However, while I have met a great many attorneys who fulfilled many of the traditional lawyer stereotypes, I had yet to meet that straight from central casting in-house counsel.

But alas, last week I encountered this elusive creature in a meeting for the first time. She works in a different area of our company, and while we had exchanged pleasantries, I had never had the opportunity to work on an issue with her before.

We were meeting to discuss the terms of a contract that would govern provider reimbursement for a relatively new medical device implementation. Since this was a new procedure, we assembled several of our physicians, actuaries, and a few of our executives for good measure. Out of the room of roughly a dozen participants, my colleague and I were the only attorneys.

The meeting went smoothly enough. My colleague and I were more on a listening tour than anything else. The makers of the medical device had sent us their initial contract, and we needed to understand more about the procedure before we could begin our review.

Toward the end of the meeting, my colleague rightly drew the room’s attention to a clause that stipulated the reimbursement rate “for the first time” the device was used. She thought this phrase was too vague to leave in the contract without any additional points of reference.

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The room uniformly nodded in agreement, as they should have. It was a simple and easy point. But my colleague was far from finished.

Despite the universal agreement in the room, she launched into an explanation of the many ways this phrase was insufficient.

First, it did not place any parameters around the word “time.” Did it mean the first time for the patient ever? For the calendar year? For the day?

Second, it did not detail who was contemplated by using it “first.” The doctor? The patient? The hospital?

And then finally, to drive the point home, she combined both of her concerns in a hypothetical. I’m paraphrasing slightly to save you the time those in the meeting lost:

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Assume Patient A is 10-years old and is injured while climbing a tree and he needs the implementation of the medical device which is performed by Dr. Blue. Fast forward to Patient A’s 45th birthday where he is again injured, this time in an automobile accident, and is in need of the implementation of the same medical device, which is performed by Dr. Red. In such a scenario, what is the expected reimbursement for both implementations?

By the end of her hypothetical, of the other ten folks in the room, I counted four glancing at their phones, two rolling their eyes, and at least one staring into the abyss like a spring-semester 3L in their last elective.

From a lawyer’s perspective, all of the concerns she raised were well-reasoned and on point. If she were in court or responding to a contracts professor, her logic would have prevailed. However, she failed to recognize her audience of non-legal colleagues and perpetuated every Hollywood stereotype ever made.

While in-house often gets stuck with many of the complex and difficult issues an organization may face, sometimes you get an issue that is just really that simple. Treat it as such. Rattle off the quick answer and move on. Your colleagues will thank you and return for your counsel in the future.

Trust me, you will have many opportunities to let your legal reasoning skills shine, but save those responses for when they are warranted, not when you get a layup.

Earlier: Debating Hypotheticals: Adored By Lawyers, Feared By Business Executives

Stephen R. Williams is in-house counsel with a multi-facility hospital network in the Midwest. His column focuses on a little talked about area of the in-house life, management. You can reach Stephen at stephenwilliamsjd@gmail.com.

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