Biglaw, In-House Counsel, Interview Stories, Litigators

Inside Straight: Interviewing To Retain Outside Counsel

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Your company was just named in a new complaint, and there’s no obvious choice of counsel to defend you. What do you do?

You ask around internally to see whether any of our lawyers has worked with good counsel in the jurisdiction. Perhaps you ask a trusted outside lawyer or two for recommendations. You narrow the choices down to two or three candidates, and you decide to interview the top three firms.

This brings us to the subject of this post: What do you ask at the interviews?

There are two ways to approach this: You can set up a meeting with the proposed lead lawyer, and maybe a colleague or two who will serve on the case team, and chat generally about credentials and experience. Or you can send the lead lawyer a copy of the complaint a day or two in advance, and then schedule a meeting to get counsel’s first thoughts on how to defend the case.

I had a strong preference for one type of interview when I was in private practice, and my preference hasn’t changed now that I’m in-house.

When I was in private practice, I strongly preferred receiving a copy of the complaint in advance and then spending the interview talking about the merits of the lawsuit. I figured that if I were really the best candidate to defend the lawsuit (and, for the right cases, I naturally believed that I was), then a substantive interview gave me the best chance of landing the case. If we received the complaint a day or two before the interview, we’d spend the available time beating the living daylights out of the complaint. We’d think about potential motions to dismiss, analyze ways to defeat class certification, and start doing some basic legal research. We’d outline areas for factual investigation. We’d think about staffing in appropriate cases: Was this a matter where the race or gender of lawyers (or experts) in the courtroom might favorably (or unfavorably) influence a jury?

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We would then use the interview to prove that we were smarter and better prepared to defend the case than the competition was. We’d present the potential client not just with our résumés, but also with an intelligent outline of the issues and concepts, copies of a key case or two, and other proof that we’d thought through this case harder than the other guys. If we did that, we’d be more likely to win the business. That made the interview easy: You start with introductions, but you then quickly turn to a substantive conversation with the potential client, making yourself the client’s working partner before you’d even been retained.

Did that always work? Did we always land the business? Of course not. Sometimes the potential client hired one of our competitors, and we’d wasted 36 hours of research and thought. We always suspected that the client would share our ideas with the lawyer who was actually retained, but that was only a slight injustice. After all, we’d had the opportunity to compete for the business, and our thoughts in the first 36 hours almost surely wouldn’t be sufficiently well developed to lead straight to victory.

I also preferred substantive interviews for personal reasons. If we didn’t receive a copy of the complaint before the interview, then the interview would consist of an hour of my colleagues and me sitting around a table bragging: “We’ve handled many of these cases before. We’ve won some of those on summary judgment. We also have vast experience in related areas of law, and we know the local judges better than anyone else. We’re awfully nice guys. You’d love to have a beer with us. Blah, blah, blah.” While you were blathering on, you knew full well that the client would be meeting tomorrow morning with some other clown who’d be bragging in exactly the same way. I personally preferred being given an opportunity to distinguish myself.

Now I’m on the other side of the table, and my opinion hasn’t changed. If we’re interviewing counsel for a particular, recently-filed case, then I really don’t want to hear about where potential counsel went to law school, how well he did, and why counsel thinks he’s God’s gift to our generation of lawyers.

Instead, show me — don’t tell me — why we should retain you. If you’re smart, prove it. We’ll send you a copy of the complaint, and you do a better job analyzing our position than your competitors do. If you win that competition, and you don’t otherwise disqualify yourself from handling our case, you get the business.

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As in-house counsel, why should you conduct substantive interviews?

First, it’s better for a good outside lawyer. It gives the lawyer a chance to distinguish herself, rather than to make idle chat about how great she is.

Second, it gives you more insight into the quality of the lawyers that you’re assessing. Any clown can brag about how great she is; only a competent lawyer can generate creative ideas about actually defending a case. And you’ll have the benefit of three competing lawyers all trying to outdo each other, so you’ll have a real basis for comparing your candidates.

Finally, this process educates you about how to defend your case. You’ll receive ideas from each of the three firms competing for the business, and some of those ideas might be pretty clever. You can use ideas generated by one firm to prod the thinking of either other firms during the interview process or the counsel you ultimately retain. (Right: You may be taking ideas that you didn’t pay for from the two losing firms. That didn’t offend me when I was outside counsel, and I don’t think that should offend me now. We gave you a fair chance to compete; that was the payoff for your work. Maybe, next time, you’ll win the business.) Early brainstorming about a case with multiple firms may accelerate your learning and give you a better understanding of your position. In any event, that’s surely more helpful than hearing during an interview about who went to which law school and clerked for what judge.

You naturally can’t conduct substantive interviews unless you have something substantive to discuss. If you’re interviewing candidates for your panel of preferred counsel, you may have no choice other than to listen to a parade of folks tell you about their vast experience in complex cases. But, if you have a choice, consider conducting substantive interviews. They’re more valuable, more revealing, and a whole lot more interesting to attend.

Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law (affiliate link). You can reach him by email at inhouse@abovethelaw.com.

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