April 01, 2012

Litigating In-House: Silver Linings and Clouds

The author shares the reasons a lawyer might--or might not--prefer an in -house position to that of a litigator at a law firm.

Mark Hermann

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Authors who write for Litigation tend to think about litigation. Articles examine trials, evidence, procedure; taking and defending depositions; positioning cases for summary judgment motions; arguing appeals.

Much less frequently—hardly ever—do authors veer off topic and address fundamental career choices. Here’s one of those: What are the pros and cons of being a litigator at a law firm as opposed to being an in-house litigator at a corporation?

My credentials are these: I worked in law for 26 years—1 year as a law clerk, 5 at a small firm, and 20 at one of the world’s largest firms (including the past 18 as a partner)—before accepting an in-house position as the global head of litigation at a large corporation, a job I’ve now held for 2 years.

And here’s why I’ve set fingers to keyboard: Someone should share with the world the reasons a person would—or would not—prefer life in-house to life outside.

Still, this is a tricky article to write. The truth is I’m basically easy. I liked clerking. I liked working at a small firm. I liked working at a big firm. And I like what I’m doing now.

I’m not anxious to heap scorn on either what I did before or what I’m doing now, and it wouldn’t be accurate for me to do so. But it does seem as though someone who’s lived both lives might provide a service to the profession by explaining the true differences between those career choices.

So here goes.

Life at a Law Firm

There is much to love about being a litigator at a firm. If you’re lucky, there’s the constant intellectual challenge of mastering one set of facts and body of law on one day and then mastering a different set of facts and different body of law the next.

There’s the thrill of struggling with precedent that seemingly ensures your client’s defeat, then finally spying the distinction that gives you a route to victory. There’s the satisfaction that comes from creating a factual record out of essentially whole cloth, selecting which aspects to develop and which to ignore, and working with experts to create a unifying theme of the case.

There’s working with witnesses, who enter your life as strangers, become friends as you guide them through depositions, and emerge as comrades-in-arms after you examine them at trial and defend them on cross.

There’s the anxiety while the jury deliberates, the thrill of victory and the agony of defeat, the combination of boredom and excitement as you prepare to argue the appeal, the performance anxiety as you approach the lectern, and the spine-tingling moment months later as you pop open the email that reveals the result.

Quick—someone make me a job offer! I’m ready to come back!

But there also are things to hate about being a litigator at a firm: drafting endless discovery responses, preparing documents for production, chasing and collecting e-discovery, and haggling with psychopaths about which discovery responses are adequate and which are evasive.

There’s the day spent studying documents to educate yourself about a witness, the day spent educating the witness about those same documents, and the day spent sitting in a room while opposing counsel asks even more questions about those same documents. Put in those three days, and you walk away with a headache after defending the deposition, wondering whether it’s too late to apply to medical school.

Don’t forget the emergency motions dropped on your desk on December 24 (Ho, ho, ho!), clients for whom every legal problem is an emergency (forcing you to cancel family dinner plans, to work weekends, to abandon vacations), and clients who have never seen a legal bill meant to be paid in full.

And then there’s the godforsaken task, every night before you go home, of figuring out what you did all day and obediently recording your time.

Quick—get me out of here!

There are also those other things that, depending on your personality, you may either love or hate about being a litigator at a firm. The necessity to develop business, for example.

Some folks seem never to have thought about the need to generate legal business, perhaps because they had practices handed down to them by senior partners approaching retirement. Others have a knack for marketing and rainmaking and love to do it. Yet others pursue business development the hard way—writing articles and giving speeches, maintaining a high profile, and regularly communicating with clients and prospects. Still others have little or no business, little skill or desire to generate it, and the firm belief that they didn’t go to law school to become salesmen.

Some enjoy the business-development effort; others loathe it; and yet others wish only that the combination of required client work and required business development added up to fewer aggregate hours, leaving more time for family, friends, and life.

Shoot—now I’m so conflicted!

Life as an In-House Counsel

So what happens when you move in-house? Only one thing is certain: You’ll find yourself in an environment in which law is no longer king.

At law firms, people care about the law. Law is their livelihood, the center of their universe. This is simply not true at equipment companies, music companies, or shipping companies, where, instead, equipment or music or shipping will be king.

This has two implications for lawyers. First, if you choose to be an in-house counsel, pick an industry that interests you, because that industry will become your playground, the prism through which you’ll lawyer.

Second, when a lawyer moves in-house, he or she changes from being a revenue producer to being a cost center. Those words are easy to read (and write) but difficult to comprehend. It might help to think about the information technology and administrative people at law firms. They’re critical to the firm’s business, and they may be top-notch, but they’re not the center of attention, and they (like outside retained counsel) are often seen as an unfortunate cost of doing business.

What else changes when you move in-house?

As any good lawyer would respond to almost any good question, it depends.

Some corporations hire in-house lawyers to act as hands-on litigators. Those lawyers continue to take and defend depositions, draft and argue motions, and try cases. They feel the thrills and anxieties of handling matters day to day, but they do so on behalf of a permanent client and thus are relieved of the obligation to develop business.

Other companies manage disputes quite differently. They rely on outside counsel to handle the litigation and inside lawyers only to supervise that work.

Those in-house supervisors find themselves lifted professionally out of some of the muck of hand-to-hand litigation but still intimately involved in the litigation process. They may love their supervisory roles, or they may find it extraordinarily difficult to sit at a deposition, at a trial, or in an appellate court, restrained to watching some other person stand up in the limelight and later suffer the catcalls or bask in the applause.

In-house counsel experiences vary, too, based on the size of the company where one works and the job that one holds.

At companies with few in-house lawyers supervising a great deal of litigation, you can experience cases the way folks perceived trains in the Old West: “It takes three people to watch for that train—one to shout ‘here she comes,’ one to shout ‘here she is,’ and one to shout ‘there she goes,’ all at the same time.”

International Business Litigation

If you accept a job, as I did, as the global head of litigation at an international corporation, you may learn in your new professional role something they rarely teach in law school—comparative civil procedure. Litigators in private practice at large American firms often hold themselves out as capable of handling any case in any jurisdiction. As their marketing gurus coach them to say, “We can do anything, anywhere. We’re your go-to litigators.” So long as the stakes are high enough, they’ll learn the new subject area, retain local counsel to help in specific courts and with their local rules, and try any case in any place. 

How myopic. The worlds of most private practitioners turn out to be very small oysters, indeed. There are roughly 200 countries in the world. A corporation can be sued in any of them. Accept a job with global responsibilities, and you’ll experience intimately things that you previously only surmised.

If you have an intellectual bent, you may be fascinated to see how cases move to resolution in scores of different countries.

If you’re tempted to accept such a role, here’s a script for your first conversation with outside counsel when you find yourself supervising a new case filed in an overseas jurisdiction with which you have no previous experience.

“Before we start talking about the facts of our specific case, I have a few questions for you. First, in your country, is there any way to learn the other side’s evidence before trial? (In the United States, we call that process ‘discovery.’) If so, can we obtain only documents, or is it possible to put witnesses under oath before trial to get a sense of their testimony?

“Does your jurisdiction allow a defendant to file a motion to win a case before trial? If so, what standard must the moving party meet? How long does it take for a case to get to trial? Are you allowed to meet with witnesses and prepare them before they give testimony?

“Do you have juries in your country for this type of case, or will a judge hear the witnesses and weigh the testimony? Will the judge personally hear the witnesses, or will the witnesses be questioned by a clerk?

“Will the losing side have to pay the winning side’s legal fees? Will we get a fair hearing? What’s the degree of corruption with which we must be concerned?”

Truly, international business litigation is a brave new world. As an in-house lawyer, you may be excited to meet the creatures that inhabit it.

If you’re in a senior supervisory in-house role, there are also the peculiarities of handling litigation from the proverbial 30,000-foot perspective.

Your company is likely to budget—annually and quarterly—the amounts for which all litigation matters should be defended or resolved. If you’re responsible for that budget, then your focus may well shift from thinking about the factual, legal, and procedural nuances of particular cases to thinking instead about how best to position your litigation pieces on the global chessboard.

Which cases, carrying what risks and threatening what losses, are set for trial when? Which should be settled? For what amounts? When?

Which cases can be accelerated; which can, or must, be postponed?

In which cases do you feel confident you can predict results with reasonable certainty? Which ones are utter crapshoots?

Find yourself in that managerial setting, and you’ll be far removed from the ground-level view an outside litigator enjoys: In this particular case, who said what to whom and when, and which are the relevant documents?

Some people will revel in thinking about cases from a strategic perspective; others will long for the days when they actually knew an evidentiary record.

Here’s something else that varies dramatically by company and by position: workload. Many lawyers move in-house in search of a more predictable, or more sustainable, lifestyle. Whether that materializes depends on the company and the job.

I have heard some in-house lawyers say that they now work harder than they did as partners at major firms. Others say that their work schedules became a metronomic 8:30 to 5:00, five days a week. If this matters to you, ask and investigate before you commit.

So, too, for compensation. Although the general sense is that in-house positions pay less generously than jobs at firms, that generality does not always apply. I know some lawyers who took substantial pay cuts to accept in-house positions and others who first acquired the riches of Croesus only when they left a law firm partnership to go in-house.

Surprises in the House

What surprised me about going in-house? Several things, perhaps because I hadn’t thought about them before I made the leap.

Although law firm partnerships are hierarchical, they are not nearly as hierarchical as corporations. In a corporation, senior people—both within and outside the law department—are likely to have 8 or 10 “direct reports,” each of whom in turn will have 8 or 10 direct reports of their own.

That structure matters. In a law firm, if a client asks you to fly to Philadelphia, you get on a plane, fly to Philadelphia, record your time and expenses, and later bill the client. At a corporation, when you’re asked to fly to Philadelphia, you must fill out a request to travel, seek your supervisor’s approval, and obtain authorization before taking the next step.

This may be irrelevant to some, but it may make others feel as though they’ve left behind the practice of law and reentered a sixth-grade classroom.

At the same time, law firms are also, in an odd way, extremely flexible. Partners typically work with many associates. Encounter a bad or disappointing one, and you simply give up on that person, never asking him or her to help with some other project in the future. Find an average associate with impressive upside potential, and you engage in some training and hope to develop a real asset. Happen upon a great associate, and you pull that person close, act as a shield against competitive demands, and never let go.

By carefully selecting those you permit to work on your cases, you create your own little mini–law firm that suits your needs and the demands of the clients’ work. Not so in a corporation. You have some number of direct reports. Those people work for you, and they continue to do so until they (or you) quit, are fired, retire, or die.

As a supervisor, you no longer have the luxury of picking and choosing the people who work on your cases. In this odd way, you feel more committed to your coworkers than you do at a firm. Choosing not to work with a bad associate at a law firm doesn’t feel like imposing a professional death sentence; maybe some other partner will consider that associate’s work satisfactory.

But at a corporation, the only way to remove an incompetent from your professional life—firing someone—does feel like imposing capital punishment. At an in-house job, you feel both personal desire and professional pressure to teach and coach all of your direct reports, to urge and help them to progress, and thus to try molding (or coaxing) their work product into something that meets your standards.

Finally, what are the undeniable attractions of working for a corporation that probably cut across all in-house jobs?

First, learning a business. As a law firm litigator, you learn businesses only from the outside, nomadically, as your cases take you from industry to industry over time. Not so once you move in-house. You learn everything there is to know about your company, your competitors, your industry (or industries), and the legal and business issues that arise in that space.

In a quirky way, that experience and perspective are simultaneously broader (because of the natural immersion in the wider business considerations) and narrower (because of the likely focus on a single industry or sector) than an outsider’s point of view.

Second, as an in-house litigator, you inevitably work with the same client, or group of clients, repeatedly. On the intellectual side, that means you come to know that client or group very well. On the personal side, it means you work with the same people repeatedly, too, which may foster shared senses of responsibility and accomplishment over the years.

Might you prefer the in-house litigator’s life to the analogous law firm litigator’s life? The answer surely varies by individual. It depends, of course, on you—your likes and dislikes, your strengths and weaknesses, and the particulars of what job you hold at what institution.

As for me, I’ve embraced the switch: Once every 25 years or so, you should do something entirely different. It’s good for the soul.


Mark Hermann

Mark Herrmann is the vice president and chief counsel–litigation at Aon, Chicago. He is the author of The Curmudgeon’s Guide to Practicing Law (ABA 2006).