In-House Counsel

Some Advice On How To Avoid Pissing Off In-House Counsel

The top pet peeves (or should we say commandments) of inside counsel who manage outside counsel.

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Kay Thrace’s post last week on working with outside counsel was spot on.

Outside counsel, regardless of firm size, often need a refresher course in the care and feeding of in-house counsel, who hire (and fire) you, review your work, and review your bills. So, I’m chiming in on the theory that piling it on doesn’t hurt and some of my comments may even be cringeworthy.

When I was in-house, I said that the relationship between in-house and outside counsel was essentially “two bodies, one brain,” the one brain being the melding of our knowledge and creative thinking to solve problems — and yikes, even every once in a while — be able to act in proactive, preventive manners. I considered the relationship a partnership.

One of the last panels I was on before leaving the in-house world was a program presented to the Legal Affairs Committee of what was then called the California Bankers Association. We did not expect very much attendance since it was really “same old, same old,” things we all in-housers had said ad nauseam for years to our outside counsel. However, the audience must have had acute hearing problems because the room was packed. It also may have been our choice of title: “Top pet peeves (or should we say commandments) of inside counsel who manage outside counsel.” An attention grabber?

Even though I haven’t been in-house for a number of years, I don’t think the advice has changed much, if at all, to judge by Kay’s post. However, what has changed is that there have been several crops of newbie lawyers who need to hear this advice, and more than once, from Kay, from Mark Herrmann, from me, and from anyone else who wants to see that newbie outsiders don’t form bad habits. The failure to understand and heed these peeves (aka “commandments”) can have negative consequences.

I will try not to repeat anything Kay said except to emphasize that in-house counsel can be either your best friend or your worst enemy. I wasn’t in corporate, but in litigation, so dealing with outside counsel was somewhat a different kettle of fish, but not entirely.

Don’t assume that support staff is plentiful for in-house departments. Depending on the department’s size, in-house lawyers may do tasks that outside law firm lawyers have staff to do. A cavalier “just have your paralegal do it” may show an appalling lack of understanding of how a particular in-house department operates.

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One of the traits of outside counsel that pissed me off to no end (and to this day still gets me irate) was waiting until the verylastminute to email or fax a pleading that had to be filed that very day, and I often didn’t get the pleading until just a few hours before the filing deadline. Really? Any time management issues here?

Did outside counsel really think that we were just sitting around twiddling our thumbs (this was in the days before Candy Crush) awaiting their deathless prose? Hardly. There seemed to be an impression that in-house counsel just weren’t all that busy and so could drop everything to attend to whatever outside counsel had waited until the last minute to draft and thus expected immediate turnaround. Inconsiderate? Yes. Memorable? Definitely.

We were busy working on our own cases (yes, we had those), meeting with clients in an effort to head off possible litigation at the pass, requesting settlement authority, or any one of the myriad tasks that are within the job description of in-house litigators. We were not, I repeat, not just waiting for your work. Did it occur to you that we might be in court, in depo, traveling on business, or even (gasp) on a day off or vacation? Of course not.

Some advice that still holds true:

Don’t wait until the last minute to ask in-house counsel to find records responsive to discovery requests. Especially with multistate institutions, documents can be in a variety of locations, including but not limited to remote storage facilities, and they can take some time to find and then retrieve. Waiting until the next-to-the-last minute does not endear you.

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Don’t also wait until the last minute to ask who should be the PMK (person most knowledgeable) and who should verify discovery responses. In my world, in-house lawyers did not verify responses, so as to avoid any inadvertent privilege waiver.

As Kay points out, her clients don’t want treatises — they don’t even want memos or emails longer than a page. The same is true for clients involved in litigation. They don’t want dithering (“on the one hand, but on the other”). What they want and need is advice in plain, understandable, jargon-free language that outlines the pros and cons, the risks involved, so that the business people can make an informed decision as to how they choose to proceed. (Settle now or proceed on the theory of “a million dollars for defense, not a penny for tribute?”) They make the business decisions; the lawyers don’t. Do not get down into the weeds. Business people don’t keep weed whackers in their offices, and they get pissed paying for what they don’t want or need (or wasn’t authorized).

Don’t overstaff, which leads to overbilling. If I thought the bill was excessive (of course, that NEVER happened), I’d ask for an adjustment. A Biglaw partner once asked me how I thought the bill should be written down. Not my job, I said. You know what was involved. You make the changes.

Nobody wants to look stupid, but there’s nothing more stupid looking than the inane “huh” look of inside counsel when the client knows more than the inside lawyer does. And who do you think was responsible for that look? Keep the in-house counsel in the loop. The failure to do so will be the kiss of death for any future work.

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for more than 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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