Practice Tip: What I Learned In-House That Helps Me Succeed in a Law Firm

Although getting results for the client is certainly important, I learned that there are many other important aspects to working successfully with in-house counsel. One important aspect of success is understanding how the client company does business. Each company has its own personality when it comes to defending and settling cases. Some will defend their product when they are convinced that their position is correct, even though they could save money by settling the case. Others compare legal defense costs to verdict range and opt for the lower-cost alternative. Either approach is valid; what matters is for outside counsel to acknowledge that his job is to obtain the best result within the philosophy determined by the client.

'Divide and Conquer'

At my company, part of our defense philosophy was to encourage defendants to work together and prevent plaintiffs from employing a “divide and conquer” strategy. We spent a considerable amount of effort in building cooperative arrangements with other companies in multi-defendant litigation.

In one such case in Louisiana, our local counsel wanted to make some remarks in summation that would have been adverse to another corporate defendant. I forbade this in no uncertain terms, because his idea ran counter to the multi-defendant cooperation our company was building in cases across the country. This trial lawyer was old enough to be my father and had been trying cases for decades. It bothered him to take instruction from a young lawyer, especially when that instruction ran counter to his instincts.

Reluctantly, he relented and summed up against the plaintiff only. With a unified defense, the jury took only 26 minutes to render a verdict in the defendants' favor. Counsel not only won the case, but made me look good as I worked with other companies in our industry to forge unity and cooperation in defense of toxic tort cases.

Local v. National

Another lesson I learned as an in-house lawyer was that the case local counsel is defending may be part of a national docket of cases involving the same product or the same legal issue. Local counsel might come up with a brilliant evidentiary argument, but the client might decide not to pursue that lawyer's case. The client might instead decide to follow that brilliant argument in another case with better facts or in a more favorable jurisdiction. In-house counsel has a national perspective that might escape the attention of counsel in the local jurisdiction, who is focused on his case alone.

Corporate Considerations

My work as an in-house attorney gave me an appreciation for mundane corporate considerations, like budgets. Annually, we would create a corporate legal budget. This required us to contact each of our local lawyers across the country for projections of the next year's fees. Needless to say, these requests made local counsel uncomfortable. If the case had been dormant for a year, should counsel assume it would spring back to life? How many motions or depositions should counsel include in the projections? If counsel's projection proved too low, would the company try to hold him to it?

There are countless possibilities that make forecasting legal costs a challenging prospect. Despite these uncertainties, the wise lawyers honored our requests with promptness and good humor. Now that I work as a law firm lawyer, I try to do the same.

Keeping Clients in the Know

Working in-house, I came to understand that corporate counsel has clients and superiors within the company that he or she must keep abreast of developments. This has several implications for me as outside counsel. One is that in-house counsel might ask me to file a motion or present certain testimony that I might otherwise avoid. This request might originate with a client within the company that in-house counsel respects and wants to keep happy.

Another implication of corporate counsel's role within the client organization is that because he must keep his colleagues informed, I must keep him informed. One of the reasons clients hate surprises is that surprises make them look ill-informed to their clients or superiors within the company. So I work hard to keep in-house counsel informed. I have rarely been criticized for supplying too much information.

'Paperwork'

When I was an in-house attorney, it was our policy to demand copies of every pleading, every medical record and every piece of discovery material. Staying up-to-date on such materials gave me and my clients within the company a chance to make our contributions to the defense of the case. Some of our outside lawyers did not automatically send us everything. The wise ones understood that in-house counsel and his clients within the company knew the company's products, services and culture better than outside counsel ever could. As a result of my in-house counsel experience, my practice is to copy the client on everything that goes out and send the client copies of everything that comes in. I would much rather have a client complain that I am sending her too much than hear that I am not keeping her adequately informed.

Before working as an in-house corporate attorney, I had worked in the New York City Law Department, where I tried jury cases, argued appeals and handled a wide variety of cases. Then I moved to a chemical company, where we in-house lawyers prided ourselves on the ability to jump in and handle a case ourselves if local counsel was not up to the job. Now that I am in private practice, I have a healthy respect for the experience of the in-house attorney. I recognize that my in-house counsel client probably tried a few cases, took a few depositions and settled a few cases before taking his current in-house position.

One of the biggest lessons I learned as an in-house lawyer was that no matter how much work outside counsel does, no matter how committed she is to the case, it is not her case. It is always the client's case. And if the client's trial strategy or settlement philosophy differs from that of outside counsel, it is the client's call. Working in a law firm, I am careful to give my clients the benefit of my best thinking. But I recognize that the client is the final arbiter. If a client decides to take an approach other than the one I suggested, as long as it is an ethical choice, I have no difficulty in pursuing it with all vigor. Again, it is the client's case, not mine.

The Legal Fee Invoice

One of the most frequent communications from law firm lawyer to in-house counsel is the legal fee invoice. Lawyers do not view their bills in this way, but they should. Every bill should communicate value. Every bill should communicate a detailed summary of all tasks performed in pursuit of the client's objectives. Bills should answer questions, not provoke them. They should be clear and self-explanatory. They should show respect for the client's billing guidelines.

And the billing attorney should exercise restraint. I recall a client telling me that he fired another firm not because their bills were big from month to month ' they were ' but because the firm billed him hundreds of dollars for an audit letter. Sometimes it is the small dollar amounts that spoil the relationship.

When I send a client a bill, I first review it with the eye of the in-house lawyer that I was 25 years ago. Upon receiving this invoice, would I object to the fee amount, as compared to the value provided? Are the descriptions of the work performed so vague as to defy analysis of counsel's cost-effectiveness? Does the bill include work the client had not even requested?

Conclusion

My final advice is this: We should practice like we do not care about money. I remember working with a highly esteemed lawyer in Knoxville, TN. He loved the practice of law so much that billing was an afterthought. In fact, several times I had to call him for an invoice so we could close out a file. This is not to suggest that a law firm lawyer should ignore his billing responsibilities; this would be unrealistic. But I recall fondly that Tennessee lawyer who practiced law because he loved solving problems for clients. He always treated clients as valued friends, not as revenue streams. Law always remained a profession for him, not a business.

Bradley S. Tupi is a shareholder with Tucker Arensberg in Pittsburgh, PA, where his practice involves environmental law, wind energy and general litigation. He has represented banks, oil and gas companies, manufacturers, utilities and other companies in tort suits, mortgage disputes, real property cases, and CERCLA actions. This article also appeared in GC Mid-Atlantic magazine, a biannual supplement to The Legal Intelligencer, an ALM sister publication of this newsettter.

When I was an in-house attorney at a chemical company in the mid-1980s, I was responsible for a nationwide docket of product liability and commercial litigation. Still a young lawyer myself, I was blessed with the opportunity to work with intelligent and experienced law firm lawyers across the country. I learned a number of lessons from outside counsel that have contributed greatly to whatever success I have gained since then, working in the law firm context.

I have a vivid recollection of a particular encounter with our company's local counsel in Detroit. Ever the gentleman, he was dropping me off at Detroit Airport for my return to New York. As I was getting out of the car, he made a remark that has stuck with me for 25 years: “My job is to make you look good.” I was surprised at his conception of his role as my outside counsel. I thought his job was to win cases in a tough jurisdiction. But over the years, I have come to understand the truth in the comment.

Working with In-House Counsel

Although getting results for the client is certainly important, I learned that there are many other important aspects to working successfully with in-house counsel. One important aspect of success is understanding how the client company does business. Each company has its own personality when it comes to defending and settling cases. Some will defend their product when they are convinced that their position is correct, even though they could save money by settling the case. Others compare legal defense costs to verdict range and opt for the lower-cost alternative. Either approach is valid; what matters is for outside counsel to acknowledge that his job is to obtain the best result within the philosophy determined by the client.

'Divide and Conquer'

At my company, part of our defense philosophy was to encourage defendants to work together and prevent plaintiffs from employing a “divide and conquer” strategy. We spent a considerable amount of effort in building cooperative arrangements with other companies in multi-defendant litigation.

In one such case in Louisiana, our local counsel wanted to make some remarks in summation that would have been adverse to another corporate defendant. I forbade this in no uncertain terms, because his idea ran counter to the multi-defendant cooperation our company was building in cases across the country. This trial lawyer was old enough to be my father and had been trying cases for decades. It bothered him to take instruction from a young lawyer, especially when that instruction ran counter to his instincts.

Reluctantly, he relented and summed up against the plaintiff only. With a unified defense, the jury took only 26 minutes to render a verdict in the defendants' favor. Counsel not only won the case, but made me look good as I worked with other companies in our industry to forge unity and cooperation in defense of toxic tort cases.

Local v. National

Another lesson I learned as an in-house lawyer was that the case local counsel is defending may be part of a national docket of cases involving the same product or the same legal issue. Local counsel might come up with a brilliant evidentiary argument, but the client might decide not to pursue that lawyer's case. The client might instead decide to follow that brilliant argument in another case with better facts or in a more favorable jurisdiction. In-house counsel has a national perspective that might escape the attention of counsel in the local jurisdiction, who is focused on his case alone.

Corporate Considerations

My work as an in-house attorney gave me an appreciation for mundane corporate considerations, like budgets. Annually, we would create a corporate legal budget. This required us to contact each of our local lawyers across the country for projections of the next year's fees. Needless to say, these requests made local counsel uncomfortable. If the case had been dormant for a year, should counsel assume it would spring back to life? How many motions or depositions should counsel include in the projections? If counsel's projection proved too low, would the company try to hold him to it?

There are countless possibilities that make forecasting legal costs a challenging prospect. Despite these uncertainties, the wise lawyers honored our requests with promptness and good humor. Now that I work as a law firm lawyer, I try to do the same.

Keeping Clients in the Know

Working in-house, I came to understand that corporate counsel has clients and superiors within the company that he or she must keep abreast of developments. This has several implications for me as outside counsel. One is that in-house counsel might ask me to file a motion or present certain testimony that I might otherwise avoid. This request might originate with a client within the company that in-house counsel respects and wants to keep happy.

Another implication of corporate counsel's role within the client organization is that because he must keep his colleagues informed, I must keep him informed. One of the reasons clients hate surprises is that surprises make them look ill-informed to their clients or superiors within the company. So I work hard to keep in-house counsel informed. I have rarely been criticized for supplying too much information.

'Paperwork'

When I was an in-house attorney, it was our policy to demand copies of every pleading, every medical record and every piece of discovery material. Staying up-to-date on such materials gave me and my clients within the company a chance to make our contributions to the defense of the case. Some of our outside lawyers did not automatically send us everything. The wise ones understood that in-house counsel and his clients within the company knew the company's products, services and culture better than outside counsel ever could. As a result of my in-house counsel experience, my practice is to copy the client on everything that goes out and send the client copies of everything that comes in. I would much rather have a client complain that I am sending her too much than hear that I am not keeping her adequately informed.

Before working as an in-house corporate attorney, I had worked in the New York City Law Department, where I tried jury cases, argued appeals and handled a wide variety of cases. Then I moved to a chemical company, where we in-house lawyers prided ourselves on the ability to jump in and handle a case ourselves if local counsel was not up to the job. Now that I am in private practice, I have a healthy respect for the experience of the in-house attorney. I recognize that my in-house counsel client probably tried a few cases, took a few depositions and settled a few cases before taking his current in-house position.

One of the biggest lessons I learned as an in-house lawyer was that no matter how much work outside counsel does, no matter how committed she is to the case, it is not her case. It is always the client's case. And if the client's trial strategy or settlement philosophy differs from that of outside counsel, it is the client's call. Working in a law firm, I am careful to give my clients the benefit of my best thinking. But I recognize that the client is the final arbiter. If a client decides to take an approach other than the one I suggested, as long as it is an ethical choice, I have no difficulty in pursuing it with all vigor. Again, it is the client's case, not mine.

The Legal Fee Invoice

One of the most frequent communications from law firm lawyer to in-house counsel is the legal fee invoice. Lawyers do not view their bills in this way, but they should. Every bill should communicate value. Every bill should communicate a detailed summary of all tasks performed in pursuit of the client's objectives. Bills should answer questions, not provoke them. They should be clear and self-explanatory. They should show respect for the client's billing guidelines.

And the billing attorney should exercise restraint. I recall a client telling me that he fired another firm not because their bills were big from month to month ' they were ' but because the firm billed him hundreds of dollars for an audit letter. Sometimes it is the small dollar amounts that spoil the relationship.

When I send a client a bill, I first review it with the eye of the in-house lawyer that I was 25 years ago. Upon receiving this invoice, would I object to the fee amount, as compared to the value provided? Are the descriptions of the work performed so vague as to defy analysis of counsel's cost-effectiveness? Does the bill include work the client had not even requested?

Conclusion

My final advice is this: We should practice like we do not care about money. I remember working with a highly esteemed lawyer in Knoxville, TN. He loved the practice of law so much that billing was an afterthought. In fact, several times I had to call him for an invoice so we could close out a file. This is not to suggest that a law firm lawyer should ignore his billing responsibilities; this would be unrealistic. But I recall fondly that Tennessee lawyer who practiced law because he loved solving problems for clients. He always treated clients as valued friends, not as revenue streams. Law always remained a profession for him, not a business.

Bradley S. Tupi is a shareholder with Tucker Arensberg in Pittsburgh, PA, where his practice involves environmental law, wind energy and general litigation. He has represented banks, oil and gas companies, manufacturers, utilities and other companies in tort suits, mortgage disputes, real property cases, and CERCLA actions. This article also appeared in GC Mid-Atlantic magazine, a biannual supplement to The Legal Intelligencer, an ALM sister publication of this newsettter.