My friend Won Hur and I were talking about how outside counsel are often justifiably lambasted for client-service fails. Then we got to talking about how some in-house counsel are mediocre in making the best use of outside counsel. They make it harder for their lawyers to efficiently represent them, create unnecessary roadblocks, communicate poorly, and then in turn don’t ask outside counsel to do simple things that would make their in-house lives easier.
At Won’s behest, I came up with an extended list, based on 30+ years of representing Fortune 500 companies.
When your outside counsel–whether partner or associate–doesn’t meet expectations, tell them, and explain how and why. Conflict avoidance is easier, but far less productive. Having these discussions in a we’re-all-in-this-together-way will nearly always have a positive effect. Snarky gibes or seething in silence … not so much.
For outside counsel, the flip side of this is to actively seek feedback from your clients, and to not react defensively when you get it. Feedback is a gift that costs nothing. Be generous in both giving and receiving.
If you have multiple matters with the same outside counsel, or even a single high-risk matter with executive-level visibility, consider short, regularly scheduled meetings with your counsel. In advance they can send you a brief update with case status (recent developments, upcoming dates, settlement status, next 30 days activity, etc.).
This keeps your outside counsel focused on moving the case along, keeps you up to date, and allows for deeper level discussion about strategy and roadblocks your counsel may be facing. If you don’t need the call, just cancel it, but if needed, you’ve got it on calendar. If you have regular meetings with your leadership where the matter(s) may be discussed, schedule the check-ins for the day before so you are always up to speed.
Credit to Won Hur for inspiring these posts, and some wonderful clients who don’t like to be named on LinkedIn but who make it easy and enjoyable for my team to go win cases for them!
Don’t assume that because you or the company “always” do a certain thing that it is the best in a particular circumstance. Hear out your counsel. E.g.,
You may think this deal point or lawsuit is nothing, but if your counsel tells you it’s dangerous, maybe hear them out with an open mind?
You may “always” remove litigation to Federal court or compel arbitration, but if you’ve got a great state court judge with whom your counsel has credibility, consider staying pat.
You may “never” initiate settlement talks because you believe it signals weakness, but if your counsel has the skill to broach them from a position of strength and may resolve the case quickly and cheaply, maybe give it a try?
You may “always” strike this mediator, arbitrator, or judge, because one lawyer on your team had one bad experience, but if your counsel has had multiple great results and earned credibility, shouldn’t you at least consider them?
Periodically check in with your outside counsel to see if they are facing any roadblocks with which you can assist. Often, your counsel won’t want to bother you, or will incorrectly assume that you know of or instituted the roadblock. Sometimes, there may be good reason for the roadblock which you can explain to counsel, or there may be an easy fix or work-around you can facilitate.
In-house counsel often rightfully lament that outside counsel don’t keep them up to date. The flip side is that sometimes in-house counsel don’t alert outside counsel to policy changes, layoffs, time-sucking layers of approval, or other internal issues that may impact representation by outside counsel. Just as you don’t want to be blindsided by your outside counsel, consider what information you might share with your outside counsel that might blindside them with an impact on their ability to represent you effectively.
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