After making my daily list, I spend much of my day in meetings. On average, I would say that I spend five to six hours a day in meetings or on scheduled calls. Some days, it is literally back-to-back meetings or calls all day. These can range from counseling clients regarding various legal issues, committee meetings, staff meetings within our legal department, one-on-one meetings with the attorneys who report to me, calls with outside counsel regarding litigation matters, witness interviews for internal investigations, or litigation preparatory meetings. In between meetings, there are countless emails asking for legal advice or providing information requested so we can provide legal advice, as well as numerous people who stop us in the hallway or pop into our offices seeking advice or wanting to strategize. Given the number of hours spent either in scheduled meetings or on calls or talking to others informally, there is very little time during the business day to answer email and actually “do” the legal work.
When there is a “fire” to put out, meetings are canceled or rescheduled, and the whole day takes a different turn. In a university setting, these fires can range from a student death, to the Federal Bureau of Investigation showing up unannounced with a subpoena, to the board of trustees asking for information on a given legal issue, to the press wanting an immediate statement about a matter you did not know existed. The types of fires vary from institution to institution, but the fact remains that in-house legal counsel are usually involved in any major crisis as it unfolds.
On top of the daily legal work and putting out the fires, there is the ongoing more mundane but important task of staying up to date with changes in law and regulation. In-house counsel cannot advise their clients well if they are not knowledgeable about their industry and the changes that are taking place. In addition to being knowledgeable, in-house counsel should be informing their internal clients of these developments so their clients can avoid creating new legal issues. This means in-house counsel should carve out time to read the alerts being sent by their outside counsel on various legal topics, attend relevant association meetings (which may be necessary for continuing legal education requirements anyway), and network with other lawyers in similar roles within their industry.
When Litigation Is Filed
A new piece of litigation is filed. Now what? In-house counsel take a few immediate steps. First, if the case is generating media attention, the in-house lawyers often work with the internal public relations team to draft and review a press statement. While public relations teams have considerable experience with press statements, being very precise about litigation is important, and it is imperative that a lawyer review the proposed press statement with that in mind. Lawyers often also determine whether this is a type of case to say, “We do not comment on pending litigation,” or whether to issue a much bolder statement denying the allegations. Sometimes, though, it may be a case where the press statement falls somewhere in between, while reaffirming the institution’s values and policies.
Other immediate steps for in-house counsel include alerting senior management in cases where that is warranted, alerting the relevant insurance companies, and issuing a litigation hold, if one was not previously issued, to prevent any document destruction.
In a recent case that I was handling, we actually learned of the case through the press. We were called about the matter by a local newspaper before the case was even filed in court. As soon as the story hit the press, we were alerted that the lawsuit had been filed in federal court. Other times, we know in advance the case is being filed because opposing counsel called us in advance, in hopes of settling the matter prior to filing a lawsuit.
One of the next steps is determining whether to hire outside counsel. Most companies hire outside counsel for litigation matters due to staffing and capacity issues in-house. There are exceptions to this rule for large in-house offices that handle all or some litigation themselves.
When you are hiring outside counsel, you will need to decide which counsel to hire. You may have a go-to firm you want to use based on past experience, and that may make the decision easy. However, some institutions choose, or are required by policy, to issue a request for proposal and interview several firms before making a selection. Some of the factors that I consider when hiring counsel for a litigation matter are, in no particular order, my past experience with the firm; the firm’s rates; its track record with success; its expertise in the subject matter; its proposed staffing model for the case, including the diversity of the team; and its proposed strategy for defending the case. If the rate proposal includes an alternative fee structure, that’s even better.
Once outside counsel is hired, in-house counsel are often very involved in the beginning of the case—explaining the background of which the in-house counsel is aware, identifying potential witnesses, discussing strategy for the defense, collecting the initial set of critical documents, discussing e-discovery issues, and developing a budget for the litigation. While this work is occurring in conjunction with outside counsel, in-house counsel are also keeping relevant internal stakeholders and insurance companies informed of the case and dealing with individual defendants if current or former employees are named.
There is another set of issues to consider when there are individual defendants. Is the institution defending and indemnifying the individual defendants? Should we use the same counsel or different counsel for the individual defendants? Should there be a joint defense agreement?
After the initial steps are taken, the involvement of in-house counsel in litigation matters varies. At my institution, in-house counsel are very involved in each step of the litigation process. We help formulate strategy, sit in on every witness interview, review every motion that gets filed in court (even motions for extension of time), and attend every deposition that takes place. This level of involvement makes our internal witnesses comfortable because they see a familiar face they (we hope) trust. It also allows more frequent and informed updates to internal stakeholders who are not witnesses but are interested in the status of the litigation. Finally, it helps to ensure the institution is taking similar stances on issues. For example, outside counsel will not know all of our previous cases and whether we have made contradictory arguments in past cases.
Differences Compared to Being Outside Counsel
Not every institution handles litigation the same way. From my days as outside counsel, I remember that some large clients wanted a quarterly status report and reviewed only major substantive motions. Every organizational client is different, depending on its size, volume of litigation, and internal policies and practices.
When I was considering whether to go in-house, I had a very hard decision to make. I was a litigator on a good path at my law firm and really enjoyed litigating cases as outside counsel. I knew what I needed to do and was being told that I was on track to make partner. I had so many questions about what I would be doing as in-house counsel. Would I enjoy being more of a generalist? How would I feel about mostly supervising outside counsel on litigation matters instead of litigating them myself? What would I be counseling clients about? What if they asked me questions about things I knew nothing about?
I took a leap of faith and accepted the job as in-house counsel. It was very different from life in the law firm. I had to learn a lot of new substantive areas very quickly. My clients were all around me, and I needed to develop relationships with them and build their trust. I also realized that many times my clients needed quick advice and that I did not have the luxury of researching a question to death before providing that advice. Forget about lengthy legal research memos from my former law firm life—no one wanted to see those! My clients needed a short email or quick discussion with the risks highlighted and a path recommended. I adapted my practice, as do most attorneys making the switch to in-house counsel.
While I am no longer often on the front lines in litigation matters, I still add tremendous value to the case as in-house counsel. Over the years, I have also been able to find opportunities to take depositions, conduct administrative hearings, and join a trial team. I even argued a case in front of the Seventh Circuit Court of Appeals. While I do not have the time to carve out these experiences often, I do so when possible to continue to hone the litigation skills I first learned as outside counsel.
The most rewarding part of my job is working closely with clients, counseling them on problem avoidance and participating as a valued partner in their strategy sessions, negotiations, and transactions. We are also there to help when the legal problem cannot be avoided, and we work through the next steps. Our clients pick up the phone and call if there is trust built. If all goes well, they value our legal opinion as well as our business judgment.
There is a sense of purpose that we are helping people on a daily basis with issues both big and small and, along the way, playing a small part in our institution’s achieving its mission—which in my case is educating students, performing innovative research, and increasing the intellectual growth of our academic community. It is a motivating mission to get behind.
So the next time you wonder why your in-house counsel is so busy and has not returned your phone call immediately, keep some of the above thoughts in mind. I guarantee it will be appreciated.