In-House Counsel

Leaving Yourself Open To Criticism As In-House Counsel

You can be second-guessed to the end of time if you decide not to take a long-shot chance of winning a case.

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Play a game with dice

“We think you should take this writ in the California state court system,” says outside counsel. “The trial court’s decision is plainly wrong. We can draft the writ for a mere $40,000, and we think you have a good chance of winning. If you win, the whole case is over. Take the chance.”

The idea is preposterous. There’s no way the court will grant the writ. But, as in-house counsel, how do you decline this proposal?

On the one hand, you can accept the proposal. You might win one in a hundred times. You’re a hero.

Or you can decline this proposal. You’ll never know what would have happened if you had taken the writ. You might later lose $1 million at trial. Outside counsel will always tell you, “You should have taken the writ! We would have won, and you would have avoided the adverse judgment!”

Or:

“File a cert petition,” says outside counsel. “The Supreme Court can decide this issue. We can draft the cert petition for a reasonable price. And we think the Supreme Court will take the case, and you’ll win.”

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Again, this suggestion seems plainly wrong. The Supreme Court will not grant cert. But, as in-house counsel, how do you decline this proposal?

You can pay for the cert petition. About two percent of cert petitions (in private civil cases) are granted. If you luck out, you might (depending on the decision on the merits) be a hero.

You can decline to pay for the cert petition. It is, after all, a waste of money. But you’ll constantly hear: “You decided simply to pay the million-dollar judgment?  How could you? If you had filed a petition for cert, the Supreme Court would have taken the case, and you would have won.”

As a matter of internal politics, you’ll be faulted only a little bit for spending money on stupid stuff. But you can be second-guessed to the end of time if you decide not to take a long-shot chance of winning a case. So you might as well take long-shot chances.

This argues for hiring reasonably experienced folks as in-house litigators.

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If you’re a little more seasoned, you understand when outside counsel is proposing ridiculous crapshoots, and you should simply say no. After you’ve been playing the game for a little while, there’s no doubt in your mind about the right choice, and you can stand up to the internal criticism.

If you’re less experienced, and a little less certain about what decision to make, you’ll be inclined to waste the money and avoid the second-guessing.

Internal politics is a funny thing.

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 Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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