Five Best Practices of Outside Counsel
1. Responsiveness (returns calls same day, if possible);
2. Values the case appropriately and puts in the commensurate effort - we don't need
an A+ job on garden variety types cases;
3. Understands and executes our early case assessment and resolution philosophy;
4. Knowledge of our Company;
5. Reduced blended hourly rate.
Five Worst Practices of Outside Counsel
1. Duplication of work by firm attorneys and paralegals;
2. Instead of using junior associates, using experienced paralegals cost-effectively;
3. Partner not properly supervising an associates work and being billed for unfocused
time;
4. Academic memos of law rather than a "cut to the chase" bottom line advice;
5. Inflated photo copying charges that become a profit center.
Best and Worst Practices of Outside Counsel
1. Evaluation of cases early, including precedential concerns and collateral estoppel, res
judicata issues. If not done, a "worst" practice:
2. Preparation of cases for trial including.a realistic cost/benefit analysis and the realistic call
on internal corporate resources will be through trial. If outside counsel does not focus on
impact of trial prep on a corporation, this becomes a "worst" practice;
3. Being realistic regarding settlement. Most cases settle. As a result, it is a "worst practice" if
outside litigators do not have realistic dialogue with client(s) about the need for the client to
consider a settlement. Also, it is a "worst practice" if an outside litigator tells the judge
he/she does not have "authority" to settle a case. Judges do not want to hear this if they ask
the question. A "best practice" would be for outside counsel to insist that the client provide
a "number," or a "range" and allow the trial lawyer to answer the judge's query;
4. Communications are crucial If an outside lawyer communicates regularly and whenever
important, that is a best practice. The communication can be electronic. What is a worst
practice is waiting until the last minute or not communicating with the in house lawyer
understanding that within the organization the in house lawyer may have several reporting
obligations which take time - to get a result/authority and so forth;
5. It is a "best practice" if the outside lawyer understands a fundamental fact: The in house
lawyer/legal organization is, unlike the law firm considered a significant "cost center" by
management. This affects perception of the role of lawyers in numerous ways;
6. It is a worst practice if the outside lawyer communicates with the media without first having
a candid and thorough discussion with the in house lawyer as to how the corporation wants
media relations handled. Do they have a PR department. Is there is an individual designated
to be company spokesperson. Similarly, it may be a best practice if in a high profile case,
the outside lawyer communicates the benefits to the entity of his or her conducting all
communications with the media;
7. On billing, a "worst practice" is the so-called automatic periodic increase in
partner/associate billing rates without discussion/understanding by the in house client;
8. On billing, it is a "worst practice" if outside litigators assume routinely that ordinary course
of business vendor invoices should be sent directly to the in house lawyer. It may take
inordinate delay given the accounting practices of the corporation to get such invoic s paid
timely. This should be discussed candidly between inside and outside counsel on how to
handle; and
9. It is a "best practice" for outside lawyers to communicate with in house lawyers on any
(significant) change in personnel - who will handle a case at the law firm.
Worst:
(1) Asking that pleadings be provided for review well before they are due to be served and then not providing input until the day before (or often hours before) they are due to be served
Thinking about the relationship between in-house and outside in best/worst terms just caused me list my gripes (supra), I'm afraid, which didn't feel particularly productive. Instead, I offer several topics that I would be interested to have a panel discuss:
(1) Things that would make it easier for in-house counsel to review bills
- categories on the insurance model?
- abbreviations or not?
- things that delay the review; i.e., that cause in-house counsel to stop during the bill
review
(2) Perspectives on staffing
- if shifting work to a junior partner (on down to a junior associate) makes sense to
me as outside counsel, is it preferred that I just go ahead or should we discuss it
expressly in advance?
(3) Feedback
- are there best practices for outside counsel to check in to see how we're doing?
- how often?
- how long a session?
- in person or by telephone?
- questions that should be asked?
(4) Budgeting
- what's the reaction to direct questions about how a matter is budgeted?
- perfect product vs. adequate product - is that something that in-house would prefer
to be expressly discussed up front?