My corporation’s legal department has had several highly perfumed lawyers over the past decade: former U.S. Supreme Court clerks, former federal appellate court clerks, and the like.
These are the kind of folks that even an AmLaw 50 firm loves to brag about — if the AmLaw 50 firm is lucky enough to have these people around. Big firms love to offer “state of the Supreme Court” CLE programs on which the panelists are exclusively former Supreme Court clerks. It adds panache.
Someone in my company’s finance department recently said something entirely reasonable about this situation — entirely reasonable and completely wrong: “I bet we get a big discount on litigation when the other side finds out the credentials (and reputation) of who we have in-house.”
Isn’t that funny? It’s perfectly plausible and, to my eye, simply not true.
In the 25 years that I worked as outside counsel, I rarely knew the name of the inside counsel monitoring a case for my opponent. (I’m, of course, thinking of corporations that have outside counsel handle litigation for them. I’d care about the identity of in-house counsel if the in-house lawyer was actually taking depositions and handling a trial.) I wouldn’t have bothered Googling the in-house lawyer’s credentials even if I heard the name. (I’ll grant that a fair amount of my practice was the defense of either product liability mass torts or securities class actions, and there is no in-house counsel — some would say no relevant client at all — on the plaintiff’s side of those cases. But I also handled routine corporate litigation, and I just didn’t care who was overseeing the case for the other side.)
Outside counsel cares deeply about who the opposing outside lawyer is: Is the person any good? Should I be anticipating arguments that the other side might make, or is opposing counsel really bad, so I can assume he or she will miss important arguments? (If so, who’s the judge? Might the judge catch an argument that I didn’t raise and opposing counsel missed? If so, must I raise the issue, even though opposing counsel is a moron?) Is the person a jerk, so every deposition will be an ordeal? Has opposing counsel never tried a case, so his or her knees will begin to buckle as we approach trial, or has opposing counsel tried many cases successfully, in which case perhaps my knees should begin to buckle?
These things matter to you as outside counsel, and they affect how you handle, or value, a case.
But the credentials of opposing in-house counsel? I never gave it a thought (and I still don’t).
That doesn’t mean in-house counsel can’t affect the value of a case. If the in-house lawyer identifies an important argument that outside counsel missed, that argument can certainly affect the value of a case. And the in-house lawyer’s willingness to take a case to trial may make a difference. But the in-house lawyer’s credentials (and reputation)?
Isn’t that odd?
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at firstname.lastname@example.org.