June 2008

From time to time, I am asked to review books.  I don’t know why.  But the idea of being asked makes me feel good, so time permitting, I generally agree.  Frequently, the books are not very good.  This was, most decidedly, not one of those occasions.

Your Witness is a compilation of stories.  Stories about cross examination.  Stories written by great trial lawyers.  More precisely, stories written by great Chicago trial lawyers.  Why Chicago?  As the Introduction begins, quoting a friend of one of the editors, "you Chicago guys try cases."  The stories are educational and instructive, to be sure.  But even more so, they are riveting. 

It seems like fewer and fewer cases are actually tried these days, which, from the perspective of one who loves courtroom drama, is a shame.  But if you can’t be in the courtroom, this book is at least makes you feel like you’re in the courtroom.  And when you’re done, if you have the soul of a trial lawyer, you’ll be as anxious as you can possibly be to be sitting in court waiting to hear your adversary utter, "your witness."

Disclaimer:  One of the editors is Jim Figliulo.  Jim’s mom lives across the street from me.  My knowledge of how terrific a family he is part of probably could not help but make me want for this to be a great book.  But I forgot all about Jim’s editorial role as I read the stories of the many distinguished authors, and I am confident Jim’s mother’s proximity did not color my judgment.

On Wednesday afternoon, I had the great pleasure to participate in a CLE program on blogging, sponsored by Counsel on Call in Chicago.  To my immediate right was Mark Herrmann of Jones Day.  Mark is one of the authors of  Drug and Device Law, a blog devoted, not surprisingly, to drug and device law.  Mark also is the Curmudgeon.  Not a curmudgeon, but the Curmudgeon himself. 

Here’s the story.  Turns out Mark is the author of The Curmudgeon’s Guide To Practicing Law.  He was kind enough to give me a copy and to note a couple of pages on billing.  Turns out I was able to read the whole book yesterday.  Lots of extra airport time due to weather in Cleveland.

You have to read this book.  Written in a droll but still hilarious manner, the Curmudgeon conveys scores of practice tips that no doubt make the Curmudgeon the toast of his clients.  The book starts with a memo to associates about writing that is one of the best I’ve every read.  It’s so good that I remember when it was published in Litigation magazine.  It includes tips on how to record voice mail messages, phone etiquette and so much more. 

I laughed and learned.  You will too.

   Life without email?  Probably not happening.  But what about a day without email?  Just imagine–an entire day where you actually had to … speak with people.  Gulp!

    As I was driving in this morning, I was, as always, listening to NPR.  The story that caught my attention was one on email-free Fridays at U.S. Cellular.  You can listen to the story here.  As I was listening to how how a technology company copes without email on Fridays, I was taken with the idea of how much less frequently I speak with people now.  And I suspect I’m not that unusual (at least in this regard!).

     Seriously, what do we miss out on when we email a client rather than speaking on the phone?  The human connection that occurs through voice communication (which is less than face-to-face dialog) generally cannot be replicated through the keyboard.  Certainly not every communication need be or even should be by phone or in person.  But be honest, aren’t there times where it would be better to pick up the phone and instead we just let our fingers do the talking?  Those are the opportunities we should keep track of and evaluate–honestly. 

     Maybe we should adopt our personal email free Friday (or Tuesday) and use that day each week to talk to the people with whom we want strong and lasting relationships.

ADDENDUM:  Special thanks to Dan Hull for his mention of this post in What About Clients.  But even more thanks for his reference to a year old post he made along very much the same lines.  As usual, Dan more eloquently framed the issue:

But what happened to voices, vibes, faces, bodies, winks, hand gestures, touching another’s hand or shoulder impulsively, stares, grins, frowns, hand-written thank you notes, human electricity, NOT-typing, non-virtual joking, yelling, ragging and flirting, occasional confrontation, intimacy and the "god-in-the-room" magic that starts with two breathing humans in one real place.

This Friday, pick up the phone.  Or pick up your feet. 

    Great (and lengthy!) post by Bruce MacEwen in Adam Smith, Esq. discussing theories about why General Counsel have been slow to move from the billable hour notwithstanding how much they loathe the status quo.  No summary can do justice to the post, so be sure to invest the time to read it.  It’s provocative, to be sure.

Bruce makes this point:

    Finally, I elaborate a bit on the thinking behind my suspicion that “GC’s don’t really want to change,” by analogy to shopping at Tiffany’s:  … I violently agree that we lack sensible or compelling measures of the “quality” and the “value” of high-end legal services today. If the shocking durability of the billable hour teaches nothing else, it teaches that we are by and large at a loss to determine value (a/k/a price), since we are throwing up our hands at valuing the output and resorting to the blunt instrument of summing the costs of the inputs (with a profit margin built in, to be sure).

    My point about the imprimatur of a brand name, or “quality,” as Paul nicely puts it, may be a bit more subtle or at least a bit different than the implication that GC’s will pay a price equal to the “detriment…if they didn’t have it.” My point was that having a Magic Circle or a New York Elite firm’s name on your acquisition agreement or your IPO registration or your massive IP licensing deal has an in terrorem effect against challengers. It’s like buying your diamond engagement ring at Tiffany’s instead of on 47th Street. It may not actually be better quality, but it’s perceived that way, and at some (I would suggest fairly self-aware) level that’s precisely the bargain the buyer is striking.

I offer this thought for consideration:  no one buying decision fits neatly into any one category.  I wholeheartedly agree with Bruce that on mega deals or mega lawsuits (usually the deals and suits that the Board pays attention to), GC’s are prone to selecting a name brand.  And if the matters truly are cost-be-damned kinds of matters, its hard to fault the logic.  But I operate on the premise (and perhaps I am wildly wrong here) that a material amount of external legal spend goes to more routine deals and disputes where price is much more a concern.  In those circumstances, the Tiffany’s argument does not carry the day.  Indeed, while the engagement ring may come from Tiffany’s, many birthday gifts come from 47th Street.  I think there are a combination of factors, including the ease of starting a matter on the billable hour basis–you send it to a lawyer with instructions to “handle” and–poof!–its off your desk.  Any other kind of alternative fee arrangement requires much more up front investment of time, and as we all know, time is a very precious commodity.  Then, too, there’s the age-old issue of lawyers and change.

I look forward to the comments that Bruce’s post triggers.

Consider this a public service announcement.  Better yet, a heads-up on something you should be speaking with your clients about.

NPR ran a story this morning about document retention and the cost it adds to litigation.  Among the highlights of the story:

  • Ten years ago, a case with 300,000 pages of documents was huge.
  • Today, a case with the electronic equivalent of 3,000,000 pages is the norm.
  • Some companies have installed proactive filters to catch troublesome emails before anyone files suit.
  • One out of four companies does not have a system in place for organizing electronic documents.

The impact of these facts on any given lawsuit is huge.

Document and information retention has become a big deal.  One resource identified in the story was ARMA, which may mean something like Association of Records Management Administrators or something (the web site does not say what it means).  But the name issue notwithstanding, the web site is chock full of useful information and links that anyone looking at a records management issue will find useful.

I’m on vacation today with the whole family (meaning we are using the Suburban).  Stopped to get gas and blew the entire vacation budget.  Wow!  Anyway, got me wondering just how fast the price of oil has been increasing.

At the beginning of 2006, oil was $60 per barrel.  A year later, it was $75 per barrel and people were complaining.  A year later, January 2008, oil crossed the $100 per barrel mark, meaning it took two years for oil to climb $40.  I just read that oil today was at $138 per barrel, meaning it has taken less than 6 months to climb the same amount.  And those forecasts of $200 per barrel by year end don’t seem so fanciful. 

I just can’t fathom how our economy is going to deal with this ongoing and growing disruption.

I will be joining John Wallbillich (The Wired GC) and Mark Herrmann (Drug and Device Law) on a panel to discuss our thoughts on the value of blogging.  The two-hour panel — "Were You Born To Blog?" — will take place in Chicago next Wednesday, June 25, from 3 to 5 p.m.

Details on the program are here.

The program is sponsored by Counsel on Call.  CLE is available.

For those interested in the role blogs can play in personal or practice group marketing, the discussions should be illuminating.

The excuses are as numerous as they are legendary:

"I didn’t know the other side was actually going to take depositions."
"Who knew the court would actually want a brief on the summary judgment motion?"
"We’ve got no chance of winning the motion but it will help us ‘educate’ the judge."

Everybody has their favorites and you should feel free to post them in your comments.  At this stage of the budget issue, we know that (1) virtually every client has to prepare budgets; (2)most lawyers hate to prepare budgets on litigation; (3) the uncertainty of litigation is so profound that no one can control what it costs to litigate a case; and (4) it was always the other side’s fault that we went over budget.

What’s a General Counsel to do?  Resort back to lawyering 101–define terms and make your "adversary’ (read, your outside lawyer) be precise.  Start with the definition of budget.  When your lawyer says he doesn’t know what it will cost to do something, he really means he doesn’t know how many hours his team will spend on this issue.  Cost is not part of that consideration.  When she says litigation can’t be predicted, she only means that she can’t foresee the unusual or the unknowable.

Let’s start with a definition of budget–it is nothing more than an agreed limit on the amount your outside counsel will charge you to represent you in a lawsuit.  Uncertainties about what might happen?  Create a scope of work.  You know pretty early on how many key witnesses there will be to depose.  If your off by one or two, that’s hardly material.  If issues change and the number is suddenly materially higher, both sides should be able to refer to a scope of work agreement and reach the same conclusion: a change order is necessary.  Or at least the client should be informed of the risk she takes if she decides not to authorize the additional depositions.  The important point of a budget is that it puts the inside lawyer in a position to approve the expenditure of money before outside lawyers spend it or spend the hours. 

So its pretty simple.  Budgets are tools to put the inside lawyer in a position to know and approve how much will be spent in pursuit of a lawsuit, and deviations from that approved sum must be approved before any new work occurs.

A note to outside lawyers–if you think budgets are tough, think about fixing your fees.  We know from just a few months of experience that if you put your mind to it, there are lots of ways to skinny the cost without reducing effectiveness.  It’s all a matter of focus.