Back when I was a BigLaw litigator, a freshly minted law school grad, the honor of having “client contact” was a delicious prize that was only offered to the most poised and articulate associates. At the time, it was thrilling to even be copied on the email or allowed to listen silently to the conference call in hopes of being part of a feedback loop hinting at what the client thought of our litigation work product. I was painfully curious about whether the draft motion I’d pulled all-nighters to research made an impact. “This has completely changed how we do business,” I would imagine them emailing to the entire company and the firm, Jerry Maguire-style. “Now that we understand the law, the path is clear. And even though her name is listed fourth on the email chain, I can tell that this motion has Jacqueline Schafer’s brilliant insights stamped all over it.” Shockingly, that particular email never landed in my inbox. Usually the response was something like: “thnks!”
I could scarcely believe that I’d spent a week with minimal sleep, eating greasy, expensed dinners over my keyboard for a one-word, vowel-less reaction. Litigators (even the partners) often get such limited feedback from the in-house attorney or their clients that it’s very tough to understand how helpful your written work was to them. Your firm may only find out their true opinion a year later after the matter has wrapped up and the client chooses new counsel, but by then the firm can rationalize a million reasons for that outcome.
When I went in-house later in my career and had to manage outside litigation counsel, I finally understood the planetary-sized differences in perspective which are rarely discussed candidly by the attorneys working together, probably because it would be a super awkward conversation. “I will generally be skimming your emails and spending 45 minutes trying to translate your abstract musings into 1-sentence summaries,” the in-house counsel would say to their litigators. “I will assume you have never spent a day near a courtroom and have no concept of how lawsuits actually work,” outside counsel would reply.
Those thoughts will remain unspoken, for obvious reasons. Often, the very skills that make us excellent litigators can make it harder for us to understand how in-house lawyers think about the work product they get from us:
- Litigators go deep into the intellectual and policy questions at the heart of the dispute, knowing that can often be the path to persuading a judge.
- Litigators love reading, and they read thoroughly–even the footnotes–and expect that all good lawyers and thoughtful people do the same.
- Litigators are incentivized by courtroom wins, and so are conditioned to care more about winning and less about the real-world consequences of winning.
In contrast, in-house clients approach litigation differently:
- They might find the intellectual issues interesting, but care most about understanding the business impacts of a particular litigation outcome (and less about how the judge got there)
- In-house lawyers could care less about the process, often perceiving it as an impediment to reaching a just, speedy, and inexpensive resolution of a business dispute. They indulge outside litigators because they must but always wish there were a better way to resolve disputes. See this recent Forbes article discussing how global litigation costs have reached $1 Trillion per year.
- They have little patience or time to read lengthy emails, memos, briefs, or to do their own research about the caselaw you cited, because their jobs have many other dimensions in addition to managing litigation. At the same time, in certain situations (like when they hire new counsel for a niche practice area) they might not know a lot about you or the firm, and feel personally responsible for confirming the accuracy of your legal research.
- They are very worried about the public relations consequences of court filings, and wouldn’t necessarily prioritize winning in court if it resulted in airing their dirty laundry.
In light of that dynamic, here are some of the aspects of your writing that can have an outside impact on whether the client appreciates your work:
- When building your legal theories, keep in mind the factual evidence that will be highlighted in the briefs as part of the argument. In-house attorneys are always thinking about whether a particular piece of evidence paints the company in a bad light, and will 100% avoid making certain arguments if it requires them to highlight particularly sensitive emails or documents in a publicly available court filing. This is true of major corporations down to the individual divorce client, who will want to see and understand exactly which Facebook messages will be highlighted and analyzed in the publicly available brief. (This is a dynamic I had in mind when we built Clearbrief’s tools to give in-house counsel a way to view instantly every source document cited to in a pleading.)
- Relatedly, before you give a brief to your client, read it over like you work in PR. Every litigator should take a step back to think about how a particular argument looks from a PR perspective, and the effects it could have on the company’s brand. You should be ready to speak to this issue when you chat with the client about your draft brief. Even if you know that you have a slam-dunk, winning legal argument, if the theory paints the client in a bad light, it’s a no-go. As an example, consider the recent lawsuit against Instagram alleging they hijacked users’ cameras to spy on them. Instagram (owned by Facebook) may decide to avoid the argument that Facebook isn’t liable because users agreed to this invasive practice somewhere in the Terms of Service, even if that theory has merit. Making that argument could worry consumers into deleting Instagram from their phones.
- Give your clients a range of options for looking over your shoulder to evaluate the work you have done. For starters, every in-house counsel/client will want a short, high-level summary of the themes in a brief that a layperson could understand. They love those, because they can copy, paste, and send them on to their internal stakeholders to keep them updated. But many in-house counsel will also want the ability to dig into your legal arguments, and review the major cases you cite to in the filing. One in-house attorney who manages litigation for a major corporation told me that he always reviews the key cases cited in litigation pleadings to make sure that the reasoning doesn’t conflict with positions the company has taken in other pending cases. Make their job easier, while showcasing your brilliant work, by hyperlinking every case in the pleading you send to them and allowing them to view it easily in the context of your brief.
- For every brief or motion sent for review, draft a short cover memo that explains the pleadings from the client's point of view. For example, if the brief needs to take a position that the client may find uncomfortable, the best outside litigators will flag that in the cover memo, explain why the position is necessary, what they did to mitigate the impact, and other options. That sort of empathy builds confidence and a stronger relationship!
There’s so much more to say on this topic, but these four (often unspoken) points come up over and over in my conversations with in-house counsel about what they want from their litigation counsel. Given that client referrals are the key source of income for litigators, understanding what your client is really looking for can be a huge boon to your business. And if you’re reading this as an in-house attorney, take pity on the poor litigators who are trying to impress you, and give them some feedback on their work. And I implore you to at least send them a thank you with actual vowels.
