Thank you for sharing!

Your article was successfully shared with the contacts you provided.
More often these days, businesses select firms to handle specific assignments by holding “beauty contests” with contestants from several firms. Beauty contest may be the right term because many times the firm that is crowned is not the brightest or the most talented, but simply the best looking. The following common-sense tips for general counsel will make your company’s next beauty contest better. • Pre-qualify contestants. Time is money, and executives � including GCs � don’t have time to waste. Therefore, invite only those lawyers or firms who have experience handling the type of legal work that is the subject of your company’s beauty contest. Inviting a top personal-injury defense lawyer to discuss your intellectual property case makes about as much sense as asking a psychologist to do brain surgery because he knows something about the brain. In addition, look for lawyers or firms who have prior experience in your venue and with the judge and opposing counsel. That sort of experience often saves money. • Most marketing is meaningless. A recent survey of law firm marketing materials revealed the following about some major American firms: “We’re big”; “We’re bigger”; “We’re biggest”; “We’re nice”; “We’re nicer than people think we are”; and “We’re global,” whatever that means. But what does any of this really tell a GC about the qualifications of a firm to handle your company’s most pressing legal matter? The same sort of marketing professionals who used to sell consumers on breakfast cereals or diet colas prepare most firm marketing materials. Sometimes, the attractive young lawyers pictured in marketing materials are not even lawyers and do not work for the firm. Instead of a firm’s marketing materials, insist on seeing r�sum�s of the lawyers and legal professionals who will work on your company’s legal matter and a list of cases handled by each of them. In addition, ask the firm for a client list to make certain that your company’s business is compatible with the interests of the firm. Don’t hire a firm that used to represent your competitor. • Check references. Insist on references from firm candidates, and then actually take the time to check those references. A GC can learn what it’s going to be like to work with an outside firm from another in-house counsel who already has that experience. Over the years, in-house counsel have seldom asked me for references, and of the few who did, only once in 20 years did any GC bother to contact my references. Time spent on the front end can avoid headaches later. • Ask tough questions. The quality of the question usually dictates the depth of the response. Yet most beauty contests seem to be characterized by the same type of questions asked of the Miss America contestants, and for that reason, they usually elicit the same sort of responses. Don’t waste time at a beauty contest asking for the sort of information that can be gleaned from reviewing a r�sum�. Instead, ask tough questions: � Who will staff my company’s matter? � Will I have your personal commitment, and how can I be certain of that? � What is your strategy for resolving this case short of trial, and how will you do so? � Tell us about the last significant case you resolved short of trial and how you did so. � How will you manage discovery? � What problems do you see in this engagement and why? � What sort of creative solutions can you recommend to solve our problem? � How will you communicate with me and how often? � Tell us what you know about our business. � Why do you believe this legal matter is important to us? � What do you believe makes you the best choice to handle our matter and why? If the subject of world peace comes up during the interview, move on to the next candidate. CAN WE TALK?Be candid with candidates. My dear wife never will tell our family doctor what is ailing her, and then she complains when he cannot magically diagnose a condition. Lawyers, like doctors, need to know all the information about a legal matter to give you an honest appraisal. If there are time pressures in handling your company’s matter, say so. If there are cost considerations in a poorly capitalized company, admit it. If you are aware of an important witness who previously was terminated for sexual harassment, own up to it. • Look for loyalty. One well-known firm has a history of asking a client’s board to replace the company’s management team, which hired the firm. Instead of being loyal to the GC, the firm is loyal to the board or to a particular board member. That sort of tension cannot lead to a good working relationship between a GC and outside counsel. In-house lawyers never like to admit it, but they want outside counsel who will make them look good. Select outside counsel who understand and appreciate that making you look good is part of their role. Don’t hire outside counsel who will call your chief executive officer directly whenever there is good news and let you deliver only the bad news. Many effective trial lawyers have big egos. It goes with the territory. Be certain that your outside counsel’s sense of self is not going to interfere with your career at the company. Look for outside counsel who understand that this is a service business and you are the customer. Ask probing questions to ensure that you hire a lawyer who shares your interests in handling the legal matter. • Budgets are bullshit. Asking a trial lawyer for a budget for a case before he knows much about it is like asking your builder how much your house will cost before you select the lot or the building materials. An honest lawyer won’t be able to tell you at a beauty contest how much a matter will cost because the cost of handling a matter often depends on the answers to a host of questions and the conduct of people beyond your control � the opposition. When in-house counsel ask for a budget, they focus on the numbers. When in-house counsel ask outside counsel to provide a budget at an early stage of the game, they focus on the exculpatory language such as, “actual fees and expenses may be higher or lower,” and “this is only an estimate.” If the company’s legal matter is important enough to hold a beauty contest, then cost should be one small factor in handling the case. I marvel at the fact that many lawyers who routinely charge less than I do drive nicer cars and live in larger homes. How do they afford it? Simple, they may charge less per hour, but they bill significantly more hours over the life of the matter. Instead of demanding a budget at a beauty contest, when checking references, as recommended above, ask those folks if they felt that the result justified the expense. After all, if you do not trust an outside counsel to bill the company fairly, why trust him or her to handle the company’s most important legal matters? Hire a lawyer you can trust to be fair. • Go with your gut. How do you decide between firms after you see their presentations? Go with your gut. Heck, how did you decide whom to marry? Did you create a decision matrix? I hope not. The relationship between in-house and outside counsel is like a marriage, so listen to your instincts when judging a beauty contest � and remember that old saying about having to kiss a lot of frogs. Steven M. Zager is a partner in the Houston office of Akin Gump Strauss Hauer & Feld.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.