In-House Counsel v. In-House Counsel aka The Nerdiest Bout Around

Ali v. Frazier.

Tyson v. Holyfield.

Mayweather v. Pacquiao.

In-House v. In-House, wait, what?

While the latter will certainly not set any Pay-Per-View records, if you are a nerd like me, I can assure you nothing makes for better entertainment than watching two in-house counsels square off with one another.

Latin is shouted across the room, countless red pens are sacrificed when making revisions, and the Socratic method is employed at a rate that would make any Civ Pro professor blush.

As I nerd, I relish these quarrels. I wouldn’t last two-seconds in a boxing ring, or in anything that would require athleticism for that matter, but square me up against a fellow in-house counsel with an opposing viewpoint, and I am ready to go.

At least that was my mentality until I had the opportunity to play the proverbial referee in a title bout between two of my colleagues in different departments. Despite my excitement at getting to witness one of these fights, as the bout dragged on from days to weeks, I couldn’t help but think their disagreement, while started in their joint client’s interest, had slowly shifted into one that was causing the client harm.

Their task at the outset was quite simple. Division A of the company had excess funds in its budget, which it wanted to shift to Division B. Briefly to answer the question of why a single company CFO couldn’t just reallocate the funds sua sponte, it was a mix of grant/government funds that we had received with rather tight guidelines. Hence the necessity of a standard MOU to keep record of how the funds were being reallocated.

It started innocently enough.

Counsel for Division A sent over a draft MOU for Division B’s counsel to review.

Division B’s counsel took issue with the audit requirements Division A was attempting to impose and sent back a redline that more or less resembled a brand new MOU.

Division A’s counsel felt slighted and fired off their own redlined version and was sure to include some disparaging comments as to Division B’s legal education.

And it quickly went downhill from there.

While I was not directly involved in these negotiations, I had the benefit of having a front row seat, as I was responsible for ensuring the final MOU comported with grant and government regulations concerning the expenditure of the dollars. And for a few days, my seat was great!

That is, until my boss asked why the simple task of getting an MOU drafted and signed had dragged on for weeks. All the while, the delay was costing Division B precious time with which to implement its program, which it needed the funds from the MOU to implement.

At that point, I had to switch from spectator to referee and get them to agree to terms in a matter of hours. The fun was over, and our nerdy title fight was beginning to impact our client.

If you work in Biglaw or deal with contract negotiation regularly, you might call the above a normal Tuesday. To an extent, I understand it. I was more than happy to sit on the sidelines for a few more weeks. Both sides were making good, and well-reasoned, points, why should I stifle the debate?

On the other hand, based on this recent experience, I am now convinced that at some point in any sort of negotiation amongst legal minds, you pass the point of an acceptable compromise in favor of simply besting your opposition.  And while this is an admirable quality to have, when you begin to impact your client, you need to recognize when it’s time to call it quits.

We are legal nerds. We are always going to go for the intellectual win to compensate for our being picked last in gym class. But if we were hired by our client for our brains and ability to think rationally, we at least owe it to them to recognize when it’s time to put their interests above our egos.

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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 [email protected].