Several months ago, I wrote a column about how the life of an in-house litigator differs from the life of a litigator at a law firm.
A reader wrote that I’d missed a trick: I didn’t mention that in-house litigators often have to think about preventing litigation — risk management — and litigators at firms do that far less frequently.
That reader was right, and his suggestion prompted this column.
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How do you cause people to do good work, thus reducing the number of lawsuits that a corporation will face?
Think about how you teach two-year-olds not to do things that put their safety at risk.
How do you teach a two-year-old not to stick his hand in an open flame?
You shout, “No!” and pull the kid away.
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How do you teach a two-year-old not to play in the middle of a busy street?
You shout, “No!” and pull the kid away.
How do you stop a five-year-old from spending too much time on the computer?
Maybe the kid is spending a little too much time with a screen. But the truth is, it’s kind of nice to have the kid distracted; it gives you a minute of peace. So maybe you stop the kid, and maybe you don’t, and, if you stop him, you don’t stop him too violently. So the kid never learns.
Right?
How do you deter crime?
Catch the bad guys most of the time, and punish them promptly: “You littered! Fifty-dollar fine, and don’t do it again!”
“You littered again! Fifty-dollar fine, and don’t do it again!”
“You littered a third time! Fifty-dollar fine, and don’t do it again!”
Soon, people will stop littering.
The litterer gets caught and gets punished.
(This is one failure in the United States’ criminal justice system. We frequently don’t catch the bad guys. When we do, the judicial system is slow and punishment uncertain. And we punish people in ways that are actually worse than they appear to be to outsiders: Prison may not look too bad to people who are just seeing a roof over their head and three meals a day. In fact, prison may be much worse than it appears to an outsider. That’s no way to deter crime.)
Why do good litigators rarely make mistakes in briefs (such as neglecting to say that a key precedent was reversed on appeal)?
Because the litigator is sure to get caught, and the punishment is certain. The litigator will read in the opposition brief: “Jarndyce neglected to tell the court that the only authority upon which he relies was reversed on appeal. This both vitiates his motion and violates the rules of ethics. Jarndyce’s motion should be denied and Jarndyce personally should be sanctioned. In addition, this Court should refer Jarndyce to the State Bar to consider further disciplinary action.”
Be on the receiving end of that a few times and you stop making mistakes (assuming you’re still permitted to practice law).
How do you keep employees from committing malpractice?
You make sure that the malpractice is caught, and you punish it promptly.
But many companies can’t figure out a way to do that.
The accountant for an individual makes an error in computing income taxes. But the return isn’t audited, no one notices, and the accountant doesn’t pay a price. So the accountant gets sloppy over time.
The IT guys design a firewall that doesn’t protect all the firm’s personal information. So what? There are millions of firms to hack; so long as no one hacks this particular firm, the IT guy is never exposed, and he becomes sloppy over time.
The architect makes a mistake in designing the dam; it won’t withstand a 500-year flood. So what? By the time the 500-year flood comes through, the architect is long dead and pays no price.
How do you cause employees to be careful?
Figure out a way to catch their errors, and punish the employees promptly for their negligence.
That can be hard to do, but that’s the solution.
Oh, yeah: Controls help. And the internal audit department. And all that other stuff. But if you want to stop mistakes, learn from how you treat two-year-olds when they put their safety at risk: Make punishment certain and severe.
Earlier: In-House Versus Law Firm Litigating
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now responsible for litigation and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at [email protected].