In-House Counsel

Perspectives From In-House Counsel: Answers To 5 FAQs From Outside Counsel

Useful advice for outside counsel looking to gain -- and retain -- corporate clients.

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Last week, I had the pleasure of speaking at the District of Delaware’s Bench & Bar Conference. This great gathering, attended by some 300 lawyers and 30 federal judges, featured excellent programming — such as an opening plenary session entitled “Perspectives from In-House Counsel: Hot Topics and Challenges for In-House Legal Departments.”

The panel, skillfully moderated by Douglas E. McCann of Fish & Richardson, featured prominent corporate counsels from top companies: Paul Grewal, former U.S. Magistrate Judge (N.D. Cal.) and current vice president and deputy general counsel at Facebook (by the way, it’s pronounced “GREY-wall”); Henry Hadad, senior vice president and deputy general counsel at Bristol-Myers Squibb; Andrea Hutchison, associate general counsel for IP litigation at Gilead Sciences; Steven Purdy, senior counsel at IBM; and Andrew Trask, litigation counsel at Google. (By the way, for those of you who are interested in the in-house world and on Twitter, you should check out the #inhousetwitter hashtag, follow Grewal at @IAmPaulGrewal, and follow Trask at @avtrask.)

Mirroring the panel’s general format, I’ve put this post in the form of answers to FAQs, or Frequently Asked Questions, posed by outside counsel to their in-house colleagues. So this post is addressed to outside counsel seeking to gain or maintain relationships with corporate clients.

The conference was conducted pursuant to the Chatham House Rule, so I won’t attribute specific remarks to specific speakers. But there was a high level of agreement within the panel, so this stricture doesn’t change much.

Q: What do you look for in outside counsel?

Obviously, excellent work is a given (or “table stakes,” as previously described in these pages). And as we’ve mentioned many times before, law firms need to understand their clients’ businesses.

What in-house lawyers truly need from outside counsel is judgment and perspective, the ability to see the forest for the trees. For example, outside counsel should understand how U.S. litigation fits into the context of the company’s global litigation; strategies developed for U.S. cases will have implications, good or bad, for international ones.

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Q: What’s your preferred mode of communicating with outside counsel?

No surprise here: “it depends.” This might sound basic, but at the outset of an engagement, outside counsel should ask the client about the best way to communicate different types of information.

Efficient communication is critical. Most in-house lawyers have many more cases, meetings, and emails than the average outside counsel; they can’t give as much attention to any individual case, so don’t waste their time. At the same time, communication must be clear, to facilitate in-house counsel explaining the issues to management. (Cf. Mark Herrmann’s warning about “alphabet soup.”)

Communication must be timely. Flag potential issues well in advance, since the in-house lawyer is often not the final decisionmaker and will have to engage in deliberation with colleagues about the desired course of action.

Finally, figure out with your in-house counterparts the kind of involvement they’d like to have when you communicate with their business-side colleagues. Some in-house lawyers want to be included in all such communications, while others don’t require it. But whatever you do, don’t mess this up — at least if you ever want business from that client again. (Cf. Brad Karp’s cautionary tale about talking to the board before looping in the general counsel.)

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Q: What do you expect from local counsel in a litigation?

This question was very relevant to the audience of Delaware lawyers, who often serve as local counsel alongside Biglaw firms from outside the state. My takeaway: the “local” in “local counsel” often gets overemphasized.

Yes, local counsel should have strong knowledge of trends in the district, the local bench, and the local bar (especially opposing counsel). Simply being admitted to the court in question isn’t enough.

But in many cases, the jurisdiction or the judge won’t make a huge difference. As one panelist joked, the advice of local counsel frequently boils down to this: “If your case is good, you’ll do well, and if your case is bad, you won’t.”

Instead, clients should treat local counsel as full members of the team, as opposed to just experts retained for local knowledge. They’re a valuable resource, especially in a complex and fast-moving litigation where many events are taking place simultaneously.

Q: How much do in-house lawyers care about training younger lawyers?

A lot. It’s in the self-interest of both in-house and outside counsel to train younger lawyers. Young lawyers are, after all, the partners and general counsel of the future. And in many situations the younger lawyers, having done all the legwork, know the issues better than their senior colleagues.

Training young lawyers requires giving them substantive experience. In litigation, that means letting young lawyers argue important motions and participate in trials.

Of course, this is easier said than done. Sometimes law firms don’t want to give associates real responsibility, perhaps afraid that the associates might mess up. Sometimes clients are the sticking point, worried about what they’ll say to management if something goes wrong — especially in a billion-dollar case.

What’s the solution? Judges can be part of it. Back when he was a magistrate judge, Paul Grewal encouraged law firms and parties to let associates argue, famously issuing an order requiring the parties and law firms before him to let the associates argue certain post-trial motions — or, in the alternative, to have the motions decided without argument. Sadly, the parties opted for submission on the briefs.

In this data-driven age, another possible response is measurement. One company has a formal requirement for outside counsel to give opportunities to younger lawyers, and it tracks compliance with this requirement through measurement. As we know from many other contexts, measuring and monitoring behavior is an effective way of changing that behavior.

Q: How much do in-house lawyers care about diversity?

A lot. Corporate legal departments want to field the best teams for matters, and the best teams have diverse perspectives. And if a matter gets tried before a jury, whose members are representative of the community, the members of the legal team need to be able to relate.

The team you bring to a pitch meeting should be diverse, and everyone should have a substantive speaking role, both at the pitch and later on in the litigation if your firm gets hired. A pet peeve of in-house counsel: bringing diverse attorneys to a pitch but giving them no speaking time, or bringing diverse attorneys to a pitch but not staffing them on the litigation after the pitch succeeds.

And yes, in case you’re wondering, companies do consider diversity when selecting — and retaining — outside counsel. Ignore diversity at your peril.

District of Delaware Bench & Bar Conference [Delaware Chapter of the Federal Bar Association]

Earlier:

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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