Practical Tips in Managing
Your Legal Counsel
Business Decisions Take Precedence
Over Legal Decisions
Don't assume that your counsel has a good business head. Some do and some don't, but most attorneys have never successfully ran a business or they would be entrepreneurs. For the most part, attorneys, with the exception of general counsels, have no experience regularly participating in strategic business decisions. Even if your counsel has worked on general matters for your company for many years, he or she knows much less than you about how to run your business. Learn to put legal issues in their proper place. When making business decisions, know the legal risks in advance, but remember business decisions involve a host of factors, legal considerations being only one aspect of the decision. Don't let your attorney "what-if" you to death. Ask for legal advice when you need it, but make it clear to your counsel that the business decisions are yours. Try to mitigate the risk, and be prepared to cover the legal costs if things go wrong.
Be Clear About Your Goals
When you hire your counsel to represent you on a matter, be clear about what you expect. Try to have a result in mind, and discuss this with your counsel. Consider your budget carefully and be realistic about the downsides. Opponents are often not rational and litigation can be lost even when you have a strong case. Consider how much can you afford to spend going to the mat. Factor in the resource drain that a long legal fight will require and come up with a strategy. So for example, you might decide to aggressively bring or defend the action in order to raise your leverage, knowing all along you don't want to go to trial. If the real goal is to "rattle the saber" and then settle, tell your attorney that his job is to gain you negotiating leverage. Coach your counsel. Don't assume that he or she will not antagonize the opposition. On the other hand, if you want your counsel to be accommodating, let the attorney know.
Make sure your counsel has the correct personality to implement your strategy. Remember, your attorney may be brilliant, but can he or she effectively go up against ruthless and bullying opposing counsel? Maybe you want your attorney to be a "pit bull", but is his aggressive posturing making things worse and wasting money? Make sure to have enough communications with counsel early on to assess the nature of his interactions with opposing counsel and request adjustments. Never assume that the personality of the opposing counsel represents the mindset of your business counterpart. Make sure your counsel does.
Your Counsel Should Follow Your Directions
A good attorney will follow your directions and not argue with you. Give counsel leeway to express their concerns and lay the issues out but the decisions are yours. Your counsel is not your business partner. He or she is a mechanic and a hired gun. If you want to take a road that might lead to straight to the edge of the cliff it is your prerogative. Several times I have had counsel that had great difficulty taking direction, albeit not always directly. The warning signs were excessive argument, ignoring my calls and emails, and finally using time constraints to allow them to do things their way. If you have arguments you want considered or raised, if you want edits made to that letter your counsel drafted, you may have to get aggressive with your counsel and remind them who is paying the bill. If they even hint at withdrawing from the case if you don't follow their direction, start looking for new counsel immediately.
Many clients assume that their attorney is able to effectively negotiate on their behalf. This is not always true. Expect to micromanage any negotiations. Even if you stay in the background, remain in control. Attorneys, by nature, believe they should be in control and opposing parties should be kept apart. Some see themselves as knights in shining armor protecting their benefactors. Others see themselves as smarter than their clients. I have seen more disputes settled and more transactions consummated when the business principals take the lead in negotiating the tuff issues themselves. When things seem to be contentious, consider picking up the phone and contacting your counterpart directly. Things work best when counsel are given direction by the business decision makers and strive to implement accordingly.
Get Up to Speed and Be Creative
Don't assume that you can stay in the dark just because you are spending a fortune. If you can invest the time to understand the relevant law you can and should become an active partner in the matter. Legal principles can easily be understood by the lay person. You should always know the facts better than your attorney and be up to speed on the key issues in the representation. This is especially important when working with new counsel. Request copies of all correspondence and court documents from your counsel via email, even if you don't have time to read much of it.
Don't assume your counsel is going to be creative in finding legal arguments or suggesting effective alternative strategies. Consider that you probably know the facts of the matter better than counsel, you know your business better, have lived with the issues longer, and you probably know what makes your counterpart tick better. Spend some time thinking through different approaches. Do some research on your own to make sure you are not in left field and then approach your counsel. If you find yourself being snubbed or ignored, find new counsel.
Watch the Clock
Most attorneys these days will initially spend a good hour with you freely discussing your case, asking questions and trying to demonstrate how effective they will be. The meter doesn't start ticking until you sign the retainer agreement. Once it does, you are on the clock. It never fails to amaze me how much the folks paying the bill love to talk. On and on they go, trying to demonstrate their in-depth understanding of the key points and facts, never realizing they are off on a tangent all the time being billed for it. It is a rare attorney who will help a client efficiently manage a conference call. Stay on point and don't try to show how much you understand, and don't let your attorney become your high paid therapist.
It won't hurt to write out your agenda for status calls and meetings. Watch the clock and keep things moving along. A couple of guys who learned the hard way to watch the clock actually developed a neat time-keeping piece of software during a large conference call with multiple counsel. Its great dark humor. See www.lawyerclock.com.
Alternative Dispute Resolution
Alternative dispute resolution can take many forms, but the basic idea is to sit down with your opponent and try to reason out a compromise. Both sides have to be willing to put their cards on the table and try to negotiate a solution. Mediation is not binding and does not need to include attorneys. It is not about proving to a mediator who has the stronger case and more evidence. It is about getting to know what the other side really wants and reaching accommodations. Whenever possible you should consider informal or formal mediation as an alternative to litigation. It works if both sides are willing. Don't be deterred if your counsel doesn't seem supportive. Mediation, and settlement by the way, can be counter intuitive for many attorneys who are used to being paid to fight, and paid only when they fight.
When Things Go Badly
If things begin to go badly, don't sit on your hands. If you come to the conclusion that you may have hired the wrong counsel, act on it. Attorneys sometimes take their representation for granted. They have your retainer and your ear. If you begin having personality issues with your attorney or you begin losing confidence, start looking for alternative or co-counsel. Be upfront with potential new counsel. They will keep your confidence and work with you to insure a smooth transition if you decide to make the change. By talking to other counsel in this way you accomplish a number of things. Even if you decide not to replace your current counsel, you will get a barometer reading by which to measure the performance of current counsel, and you may get some fresh ideas. Most importantly, you will lose that feeling of being "held hostage", and find yourself better able to exercise control over your current counsel going forward.
Review the First Invoice Carefully
Set a cost-conscious tone early on. I will discuss how to review invoices and monitor legal costs in the next installment of this newsletter, but I want to stress the importance of carefully reviewing at least the first invoice. If you demonstrate that you are cost conscious and demand efficiency, you will make an impression on your counsel and this will have an effect on all invoices that follow. Carefully track how the time is being spent on the matter by the firm. Question whatever concerns you: poor task breakdown, excessive associate hours, multiple attorney conferences, unexpected expenses, billings from new partners, or potential mistakes.