What the junior lawyer says:
“Thanks for letting me attend the trial. The trial site is spectacularly impressive. Our outside counsel rented out the entire floor of a hotel. They brought in computers and printers and boxes of evidence. They’re providing a separate lawyer for each of our witnesses! This is an unbelievably well-oiled machine.”
What the business guy (who will be our first witness) says:
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“This is ridiculous. We haven’t hired a trial team; we’ve enlisted an army. Think of the expense! How will we ever beat the analysts’ estimate for Q2?”
What the junior lawyer says:
“We have a decent chance of winning this case, so we haven’t yet taken a reserve. But the other side just offered to accept $1 million if we settle before the summary judgment argument. That’s a lot of money, but it’s potentially a $50 million exposure. Let’s seize the opportunity while it exists!”
What the business person says:
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“$1 million? Now? We can’t settle now; that’ll blow the quarter. I don’t care if that means that some silly motion will already have been argued. Postpone any settlement talks until next quarter.”
(When the next quarter rolls around, you’ll hear the same thing. But that’s another issue.)
What the junior lawyer says:
“Plaintiff just made a reasonable settlement demand, but it’s time-sensitive. Plaintiff will take $1 million to settle this case, but we must accept that demand by the end of the day.”
What you tell the junior lawyer:
“There’s a technical accounting issue tucked into this. Call the technical accounting folks to find out how the payment would be booked. Then talk to the other folks in finance to be sure that settling wouldn’t mess up anything else. The business unit will surely ask if finance said this would work. After the business unit approves, you have to get approval from the CFO and the CEO. And don’t forget law department approval; for a settlement of $1 million, you’ll need to talk to the general counsel.”
“But we have to accept the offer by the end of the day today. Suppose any one of those people is away from his or her desk?”
“Welcome to corporate life.”
What the junior lawyer says:
“This case is impossible. We’re wrong on the law, and we did it. We can’t possibly get out of this one.”
What the senior person says:
“I think we’re a big customer of the plaintiff. Smith buys a ton of the plaintiff’s gadgets. Explain to Smith what’s going on, and see if Smith can help.”
What the junior lawyer says:
“Let’s file a lawsuit! The defendant did it; we’d win in a heartbeat.”
What the senior person says:
“What would filing the lawsuit involve? Is the defendant a client of ours? A supplier? What discovery would be taken of us? Did we do anything that we wouldn’t want in the public eye? If you file a lawsuit, many things will become public.”
When you work at a law firm, you think about winning and losing and seizing opportunities when they arise.
When you work at a corporation, you realize there are many non-legal considerations that go into just about every decision that you make. Winning isn’t the only thing, and it surely isn’t everything.
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].