In-House Counsel

The Identity Of Opposing Counsel

Of the collection of things that in-house lawyers worry about, the identity of opposing counsel probably doesn't even make the list. 

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We have some highly perfumed lawyers working in-house at my joint:  former federal appellate court clerks, former U.S. Supreme Court clerks, and the like.

A (very reasonable and smart) person in finance said to me:  “We have a really powerful in-house team.  That must give us an advantage in litigation.  The other side must give us a discount on our cases because the other side knows that our defense will be so strong.” 

It’s funny:  The person in finance is entirely reasonable, very smart, and dead wrong.

During my decades as a litigator at a law firm, I almost never knew the identity of opposing in-house counsel, and the identity of opposing in-house counsel never affected my valuation of a case.  (I confess that I worked first defending securities litigation and later defending mass torts.  In both of those fields, the idea of  “opposing in-house counsel” is largely a fiction.  The cases are run by the outside lawyers, and “opposing in-house counsel” either don’t exist or don’t matter.  But I worked on more traditional commercial cases, too, and I stand by my assessment:  We occasionally cared about the identity of opposing outside counsel; we never cared about the identity of opposing in-house counsel.)

Now I’m in-house, and I don’t even care about the identity of opposing outside counsel.

I know that you think you’re very important — because you’re you! — but consider this issue from the perspective of an in-house lawyer.  An in-house lawyer with supervisorial responsibility might be overseeing hundreds — or, in some instances, thousands — of cases.  As to each of those cases, a person in the business might reasonably expect the in-house lawyer to know some facts.  So the in-house lawyer will try to know the facts that matter.  The identity of opposing outside counsel just doesn’t make the list.

What might folks in my business expect me to know about my cases?

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The amount in dispute.  The basic facts — what we allegedly did, and how we intend to defend the company.  The geographic location of the lawsuit — Seattle?  Miami?  Is the case in state or federal court in the United States, or in what country (or, if relevant, section of a country) overseas?  (For example, is the case in a German- or French-speaking canton in Switzerland?  That would surely affect your choice of outside counsel, and it might affect your choice of which in-house lawyer should oversee the case.)  For cases in the United States, is it a jury trial?  (Even non-lawyers understand that the presence of a jury adds uncertainty to predictions about trials.  The presence of a jury also changes the timing of when you can expect a result — a jury will decide within a few days after trial; without a jury, you’ll generally wait months for a judgment.)  Is the lawsuit insured?  Under which corporate policy?  What’s the deductible?  Have we yet reached the deductible?  Do we have any reserve on the case?  What’s the identity of our outside counsel?  (For cases in certain jurisdictions, what are the names of both our solicitor and our barrister?)  Why did you pick those people to defend the case?  Is there a trial date?  When?

Multiply that times a few hundred (or a few thousand), and it’s a ton of information to remember.   

You think I’m worried about the identity of opposing outside counsel?  (Or, even more remotely, opposing in-house counsel?) 

Sorry, Charlie. 

Of the collection of things that in-house lawyers worry about, the identity of opposing counsel probably doesn’t even make the list. 

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(I’ll draw one exception to this rule:  If opposing counsel is one of about a half-dozen lawyers worldwide whose names are known to everyone — for winning huge verdicts or simply being famous — then the identity of opposing counsel might become relevant or, at least, memorable.  But I’m drawing the line there.  For the most part, the identity of opposing counsel simply doesn’t matter.) 

Sorry about that.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel 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].

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