Helping in-house and outside counsel work better together

Two key strategies to bring the two sides closer and avoid mistakes.

While sitting at a bad Little League game last night (Cubs vs. Mets; no surprise there), I was comparing lawyer notes with a parent who happens to be outside counsel (though not currently my outside counsel).

The theme of our conversation was that, during my 15-year stint as outside counsel, I thought I was pretty dialed in to my clients’ needs. In reality, I probably grasped less than a third of what they were dealing with.

The flip side is that in my experience as inside counsel, we frequently fail to share with outside counsel more than about 70 percent of the requisite facts necessary to really grok and solve the issue being outsourced. While this divide will never be completely bridged, the following are some suggestions for bringing the two sides together:

1. Delegate early. Picture this: An e-mail arrives framing an interesting legal issue. Professional pride swells the breast, and the index finger is poised to launch one’s browser of the moment, visions of inchoate cost savings dancing in one’s head: “I’ve got this one,” inside counsel thinks. And then the next e-mail arrives. And the aforementioned browser never gets launched. (Remember the first day you were so busy you never had time to get on the web? Not an outside counsel-only phenomenon.) So now it’s Thursday afternoon (the time of the week when most in-house counsel throw in the towel), or the day before the board meeting, and that little 20- to 200-minute issue remains unresolved. And the business people you or outside counsel could have spoken to in the interim are less available. So now you delegate to outside counsel, and you’re both frustrated, knowingly or otherwise, that you didn’t delegate sooner. Follow David Allen’s prescription, with the inside counsel twist: If you can’t do it yourself in two minutes, forward it to outside counsel. Then and there. If you’re lucky enough to have internal staff in that domain, send it to them, but remember to preach the above mantra in staff meetings, and back up staff members when they follow the budget. Your tether can be:  “Can you do it?,” “By when?” or “How much?” so that you can always pull it back quickly. But get it out there, forthwith. All parties involved with the utility curve will be glad you did.

2. Answer at least the questions you are asked. Whether you are inside or outside counsel, little is more maddening than asking five questions and getting a number of answers that don’t add up to five. To reduce the probability of this occurring, I have taken to numbering my questions. (Mathematician and Cornell University Professor Steven Strogatz’s idea, I believe; not mine). It continues to surprise me how many recipients are apparently immune to (or, in the case of particularly pretentious outside counsel, unwilling to abide by) this clear visual and intellectual prompt. We’re all time-constrained. Barring creative billing structures, however, inside counsel generally is more so. So here we sit, desperately enumerating the specific questions that require answers, and we get back a nonnumbered paragraph. Or, worse yet, a phone call. It may be largely me (feel free to weigh in, inside counsel diaspora), but when I’ve taken the time to frame a question as having a yes–or-no answer, it’d be great to get an e-mailed response that falls into at least one of those two categories. I understand in special cases documentary issues may militate toward a phone call, and “LDL” (let’s do live) probably isn’t an optimal e-mail response then, but those are outliers. And three e-mails probably does mean it is time for a phone call, but at the time the questions go out, we still have two to go. Let me know where you think we’re missing each other. Enumerated e-mail preferred.

Martin Collins is vice president of corporate development at Bloom Energy, where his responsibilities include all legal matters.

Martin Collins

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