When footwear-maker Wolverine World Wide was in need of a law firm to handle its trademark work, General Counsel Ken Grady set out on a lengthy search to find the right outside counsel. Grady’s team spent a year investigating potential law firms, and then another eight months getting to know Seyfarth Shaw–from its paralegals to its office culture to the individuals who would be staffing Wolverine matters–before finally choosing the firm to handle its trademark portfolio. It was no easy undertaking, but Grady knew it was necessary. He wasn’t interested in traditional hourly billing, and he worked with Seyfarth to develop a flat fee billing arrangement that incentivizes the firm to deliver savings to Wolverine.
“In order for an arrangement like this to work, you have to have at the foundation trust between both parties that we’re in this to work together over a longer period of time, and we’ll deal with each other in a fair and equitable manner,” Grady says.
Grady’s attitude reflects a new era in law firm relationships. In the ’80s and ’90s, law firms were hired for matters or transactions, not necessarily to handle a company’s work more broadly.
“The process of convergence is mostly played out, and most corporate law departments have a stable network of preferred providers, and those relationships are long-term relationships,” says Erik Ramanathan, executive director of Harvard Law’s Program on the Legal Profession and former general counsel at ImClone Systems. “There’s not much threatening to move on to new law firms–CEO turnover is more significant than law firms getting fired. We should all be embracing the long-term durability of a law firm relationship and then focusing on strengthening it.”
In such an environment, strong relationships with outside counsel are crucial to meeting in-house goals. The good news is that in the face of cutting-edge legal management strategies, maintaining and improving relationships with outside counsel still comes down to the fundamentals–and the first step, as Grady shows, is the willingness to invest.
On the following pages, in-house experts share 10 more pieces of advice.
1. Make your objectives clear
It’s critical for in-house and outside counsel to be on the same page, and that requires constant communication.
“It’s important for in-house counsel to know the client and goals for each legal issue and communicate those goals to outside counsel,” says Sarah Feingold, general counsel of Etsy.com. Maybe your goal on one matter is to keep costs to a minimum, while on another matter you want outside counsel to think more about the big picture. Whatever your goal may be, identify it and communicate it.
“It’s important for us to help outside counsel understand the business and business objectives and then creatively work with them to achieve those business objectives,” says Mark Edwards, IP litigation counsel at DuPont. “I see my role as a liaison between outside counsel and the business to make certain outside counsel is adequately serving the business’ needs.”
At DuPont, Edwards says, the best results are achieved when in-house teammates get to know outside counsel, establish relationships and speak as frequently as possible to ensure everyone’s on course–keeping the business objectives in mind at every step.
“If there’s no communication,” he says, “typically that’s where there are problems. The closer you are with outside counsel, the more you can emphasize what the goals and objectives are, the more you can stay attuned to legal strategy being developed, and the more you can contribute to the development of legal strategy with outside counsel.”
2. State your budget expectations
It’s a point of tension when all seems to be going smoothly with a law firm–until you get a bill that turns out to be some multiple larger than what was expected. Situations like that arise from a failure on both sides to clarify budgets and the scope of work.
When Jed Hendrick, a partner at Edwards Angell Palmer & Dodge, returned to private practice after serving as general counsel of Dennison Manufacturing, he brought a new perspective. He would find himself hanging up the phone with in-house counsel sending him work, only to wonder how much time he should spend on the work and trying to strike a balance between thoroughness and budget-consciousness.
“How far do I go? It’s incumbent on outside lawyers to press for crisp communication,” Hendrick says. “Some law departments have invoked internal triage processes where they actually sit down with business people and go through the criticality of need, how much money they want to spend and what the return will be–all before they even call the outside firm.”
3. Build trust–at all levels
“Trust works both ways,” Feingold says. “You want to trust outside counsel to do the right thing, and you want them to trust you to give them the right information, come to them when needed and not be shopping around for other outside counsel.”
The idea of trust as a centerpiece of a professional relationship is nothing new, and it’s eternally good for business.
“At the end of the day, trust is efficient,” Ramanathan says. He emphasizes that trust must develop at all levels–not just at the top.
“There should be trust at the bench levels as well,” he says. “That’s a lot of what tends to go missing. When things go wrong, it’s because a single general counsel or managing lawyer is talking with a single lawyer. That’s a single-point-of-contact relationship, and trust isn’t built across the divide.”
4. Form a true partnership
Fred Bartlit, founding partner of Bartlit Beck Herman Palenchar & Scott, says he would count it as a success if an outsider walked into a meeting room and couldn’t distinguish between the in-house and outside lawyers. The relationship should be one of peers, he says, and the evolving role of in-house counsel is making such equal partnerships increasingly common.
“An overwhelming, major change over the years has been the dramatic sea change in the quality of inside counsel,” Bartlit says. “Thirty years ago, jobs in law firms were considered much more desirable than inside law department jobs, and this has changed. In many respects, inside jobs are more interesting, with more responsibility, than much of the mind-numbing work done by outside lawyers who never actually take a case to trial.”
Because in-house counsel can now be peers in such relationships, Bartlit says, the relationship is both more rewarding and more challenging.
“Be a true partner and peer in every respect,” he advises in-house counsel. “Say what you think so there are no inefficient, time-wasting miscommunications.”
5. Be frank
Saying what you think isn’t always easy. Talking about tough issues like money or a lawyer’s role in a project can be complicated but necessary. And it’s what outside counsel want.
“If a lawyer disappoints you, you have to let him or her know what happened,” says Lucy Mason, a Shook Hardy & Bacon partner who formerly managed mass tort litigation at Altria Client Services. Mason says open, frank communication is the only way to let outside counsel know you received something other than what you were expecting.
“Lawyers on both sides will avoid those conversations, and it’s always a mistake,” says Josh Davis, a managing shareholder at Ogletree Deakins. “In this respect that relationship is no different than any other relationship in your life: The things you don’t talk about run the risk of festering and turning bad on you.”
Remember that it’s a professional relationship and bite the bullet. Feingold routinely reviews legal invoices and doesn’t hesitate to call outside counsel to inquire why a certain matter took so long, or to ask for in-depth explanations of what she’s paying for.
“When money gets involved, it gets a little less friendly sometimes, but we all recognize it’s a business,” Feingold says. “As long as everyone has mutual respect, they know I’m looking over the bills and that’s OK.”
6. Remember: You’re the customer
“The No. 1 thing you have to remember is that you’re the customer,” says Brad Blickstein, a corporate legal department consultant. Keeping this in mind will likely make it easier for you to openly communicate your needs.
A client recently complained to Blickstein that she couldn’t get her outside counsel to send a bill in a timely manner. She would receive six months’ worth of bills at a time. Blickstein’s suggestion is to tell the law firm that if they don’t submit bills within 60 days, they won’t get paid.
“I know it sounds really obvious,” he says, “but you’re the client and they’re the service provider. That gets lost sometimes.”
What this really means is not being afraid to insist on what you need–whether it be effective communication, cost predictability or efficiency.
“If a law firm isn’t willing to work with you, you ought to be shopping for another firm,” Feingold says. “I’m the client! … It’s important for them to know that even if I’m just calling for a small thing, it could be something really important in Etsy’s day.”
7. Develop a friendship …
“At the end of the day, the best law firm relationships are where it’s a professional relationship but someone I can trust as a friend,” Ramanathan says. “I can say, ‘Let me tell you something in confidence about the C-pressures I’m facing, or some human capital issues on the team, or something about our relationship.’”
That can mean searching for the right law firm relationship partner–which often is not the originating partner, Ramanathan says.
“Find the right points of contact throughout the food chain and put those relationships together,” he says. “Friendly, candid relationships are key.”
8. … But keep the work product professional
Bartlit sets a professional standard for his team with the following thought experiment: If suddenly all of your e-mails surrounding a matter had to be disclosed, would you
“No snarky remarks,” Bartlit says. “As a matter of culture we’re professionals, so don’t make snippy remarks.”
9. Hold a post-game conference
Early Case Assessment is commonplace these days, but how many legal teams sit down after a project for a look back? Not enough, says Blickstein, and he understands why: First and foremost, lawyers are busy–by the time they close one matter, they’re already three days behind on the next one. They also tend to feel that each matter is distinct. But post-gaming your legal matters can really pay off.
“I’m a big fan,” he says. “It’s easy, and as an efficiency tool, that post-matter meeting is really valuable. It’s hard to imagine that spending an hour of your time at the end of Matter X to talk about how it went can’t save you time and money next time.”
If you’re in-house, and your law firm doesn’t seem to want your feedback on a matter, give it anyway, Davis says. “Pick up the phone,” he says. “Say, ‘I’m happy to work on this new project, but last time it didn’t work out the way I wanted.’ If we talk about what we want, we do better.”
10. Reset expectations periodically
Mason has been in practice for 25 years–breaking for the in-house stint at Altria–and has represented many of the same clients during that period. “No matter how long that relationship is,” Mason says, “it’s very important to reset expectations.” She says it’s important to sit down at least yearly to talk about how things are going and get a status report. As the in-house lawyer, this is where you should make your assessment of the previous year and ensure the law firm understands your evolving expectations and needs.