September 2014

Some things make my blood boil.  Consider these quotes from Part 4 of Pam Woldow’s recent 4-part series, Cutting Corners (Part 1, Part 2, Part 3, Part 4).  The series discusses whether use of Legal Project Management and Legal Process Improvement encourages lawyers to cut corners.  Part 4 includes reader feedback and Pam’s response to certain arguments raised by her readers.

There was a discussion about whether inside lawyers or outside lawyers should be the one responsible for weighing risks against cost.  According to one General Counsel,

We, and only we, should determine acceptable risk because we are the experts on our companies and business strategies.  Our company takes risks every day, and we understand how to evaluate when to dig deeper and when it’s time to move on.  When we don’t want more research or memos or depositions, we have made internal decisions about cost and benefit. 

It is hubris for any outside lawyer to believe anything different, nothing less.  It is the client’s legal problem.  It is the client’s money.  That anyone other than the client should decide how to address the legal problem and spend the money misunderstands the client’s primacy in the lawyer-client relationship.

As Pam reports, outside counsel uncomfortable with the client’s primacy resorted to the well-worn “malpractice risk” argument.  It goes something like this:  “I, the outside lawyer, need to do x, y and z because my malpractice carrier says so or because I will be at risk of being sued for malpractice if I don’t.”  Put aside that few clients ever sue for malpractice. Put aside that clients willing to take risk understand they must accept the risk associated with their decisions.  Put aside that no malpractice carrier ever—ever—said a lawyer must turn over every stone and milk their client for every last dollar.  Put all those things aside.  If a lawyer is uncomfortable with the client’s decisions on risk, then he or she should quit.  They have no obligation to represent a client.

Let me be clear.  Rule number 1 of being a lawyer is that the client gets to decide.  They get to decide scope of work, they get to decide what risks are worth taking.  They get to decide how a matter should be staffed.  It is hubris to suggest that, as an outside lawyer, your views on these matters should govern the client.  Rule number 2, by the way, is that if you don’t like how the client decides these things, you are free to not represent the client.

Quick story:  I was national counsel for a client and we had 50 nearly identical cases in one jurisdiction.  When a motion was filed, it was filed in all 50 cases.  Same motion.  My client’s local counsel would dutifully bill for each case.  “Review motion to substitute attorneys–.2” in all 50 cases.  That meant the lawyer billing 300 minutes—5 hours—for reviewing each motion.  When I told the lawyer to combine all the cases into one matter and review only one motion and simply take on faith that all 50 of such routine motions were identical, he argued his malpractice carrier required him to do it in this manner that caused him to rip-off his client.  I asked for the name of the carrier, which he declined to provide. When I called him back the next day to tell him where to send the files, he professed shock and disappointment and wanted a do-over.  Fat chance, my friend.

Clients get to decide.  It has always been true even though some lawyers may have forgotten.  But it is more true now than ever before, and clients get it.  The clients who may not have understood this now do.  If you don’t like this paradigm, find a new profession.

Bingham McCutchen is following the Dewey/Howery decline to oblivion.  It seems people are surprised.  They shouldn’t be.  Some number of major firms are the “low end” that create the mediocre industry average numbers that are reported.  But surprised they are, and that always surprises me.  So you can see why this brought a smile to my face:

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Hat tip to John L. Davidson (@jdavidsonlawyer).

The following is a quote from Mark Horstman, one of the principals of Manager Tools, in his most recent Things I Think I Think. (I am a huge fan of Manager Tools’ podcasts, which I strongly recommend.)

We take grief frequently for recommending one page resumes.  People say they “hear” that longer is what is the standard these days.  (This is wrong, but it is nuanced).

Then people complain as well that recruiters don’t spend any time on resumes.  (The Article on Business Insider I saw said 6 seconds, I think.)

I always think to myself: If you admit recruiters aren’t spending any time on your resume, what makes you think a longer resume is better??

There’s a technology that allows researchers to track your eyes when you look at stuff.  It’s often used with web pages.  It’s also been used on resumes.

Recruiters look at your name, your current title and company, current position start and end dates, and education.

All on the first page of a one page resume.

My own experience reviewing resumes suggests this is fairly accurate.  Which raises the question of why this is so?  My belief?  All resumes look alike, sound alike and there is only so much “blah, blah, blah” that a person can read.  Resumes need to be made unique to stand out from the crowd. Just remember, you can’t make a resume that everyone will like, and if you try, you will end up with a resume that nobody cares about.

By now, everyone has heard that Ray Rice has been cut by the Baltimore Ravens and had his laughable two game suspension increased to “indefinite”.  And the increased punishment is being lauded by sports pundits everywhere.  All of this only shows how little the NFL, the Ravens and the sports punditry care about domestic violence regardless of their enormous lip service to the contrary.

We saw video of the coward Rice dragging the unconscious body of his girlfriend from an elevator like a sack of garbage. We know she walked into the elevator on her own.  Unless you are of the belief she slipped on a banana peel and knocked herself unconscious, you knew he hit her. Hard.  And believe me, if she had slipped, he would have demonstrated some degree of concern and not dragged her by her hair.

The new video was released that demonstrated that what we knew was true was true.  So what is new?  The decision to cut Ray Rice had nothing to do with concern about domestic violence. It had everything to do with appeasing fans who are upset that the coward was let off so lightly the first time around.  The same is true for the NFL.  And if the sports pundits actually gave a damn about domestic violence, why are they not expressing outrage over this obvious pretext and what it actually says?

My two boys were given the same bright line rule I was given by my father.  Never strike a woman. Never.  No exceptions.  and the rule was not qualified by saying that the punishment is different as long as you’re not captured on video.

Do you remember Andy Rooney?  He used to do commentary on 6o MinutesBig, bushy eyebrows.  But the thing I will always remember is when he would ask “Did you ever wonder….?” and then go into some offbeat topic.  My question is when did people stop thinking?

  1. When you are walking in a busy airport, don’t just stop.  Would you just stop your car in the middle of a busy highway?  Of course not. Same at airports—there are other people walking and you inconvenience everybody by simply not moving to the right.
  2. In the same venue, please walk on the right.  I don’t know why we do, but we do that in this country.  Plowing headlong into someone walking against the flow is not how I want to start my day.
  3. When someone is scheduling a meeting and asks 25 people if they are available, think long and hard about whether using “reply to all” is a smart move.  I know I don’t want 24 emails letting me know every meeting people have planned on the days in question.  I would rather wait for one email reporting the results of the inquiry.  Think before hitting send—does everyone really need to know the information I am sending? By the way, the answer is “no” more than 99% of the time.
  4. Don’t tell me what “the client” wants us to do if you never talk to the client.
  5. If you are a vendor and calling me unsolicited, make your first sentence really good because if I am not interested by the end of that sentence, our conversation is over.
  6. If you’re a vendor and ever call my cell phone unsolicited, you don’t even get the first sentence.
  7. I really don’t care how special your product is.  Really.
  8.  When you take a deposition, think about whether the witness’ 23 prior jobs all need to be explored in detail?  Is what they studied in college really important?  I am trying to remember whether any of  these facts have been the subject of testimony in any of the cases I’ve tried or trials I have observed.  Can’t think of any.
  9. There is nothing funnier (on one level) or sadder (on another) than watching a lawyer who has never tried a case trying to follow the instruction to object frequently.
  10. It is hard to understand how you can be in a service business if you don’t like to serve your customers.

Perhaps I will think of more things I think I think sometime soon!