In-House Versus Law Firm Litigating

Written by
Mark Herrmann
Above The Law

Published
Sep 7, 2017

Sep 7, 2017 • by Mark Herrmann

What’s the difference between litigating at a law firm and litigating in-house?

That obviously varies, both by firm and by corporation. Some corporations hire in-house lawyers to try cases. Life for those in-house lawyers may resemble life for outside litigators (although the in-house lawyers are spared the need to develop business and probably handle a different range of cases).

What if in-house lawyers don’t try cases?

Here’s life at a law firm (for partners, in any event):

 

Develop business.

 

Bill time.

Win cases.

The rest is irrelevant.

Well, it’s not really irrelevant; it’s actually quite important. But it’s stuff that’s undervalued by many firms. The “irrelevant” stuff includes clearing conflicts, and (maybe I’m being too harsh on some firms here) developing associates, and raising the firm’s profile (such as by writing articles or giving speeches that don’t directly generate business), and answering 1700 interrogatories, and fighting with opposing counsel about whether the deposition will be in Houston or Dallas, and firm management, and proof-reading bills, and on and on and on.

How does life as an in-house litigator differ?

Scratch “develop business” off the list. You have one client, and business will take care of itself.

Scratch “bill time” off the list. Although you still obviously have to do your job, most (but not all) corporations don’t require their in-house lawyers to track time.

“Win cases” stays on the list. You may not be arguing motions (as you were at a law firm), but you still must ensure that the right arguments are being made by your counsel in the most persuasive way.

But “winning cases” is just one item among many. Here are the other chores that you must handle in-house:

Keep the business in the loop: Senior folks in the business don’t naturally know what cases are pending against their business and when key events in those cases may occur. You’re at the helm; share that information.

Keep finance in the loop: Finance doesn’t know anything about your lawsuits, but finance is keenly interested in what reserves you’re taking, what events are on the horizon (such as trials, mediations, or summary judgment motions) that might require you to take reserves, the amounts of likely reserves, and so on. You’re at the helm; share that information.

Keep internal audit and external auditors fully informed: Depending on the situation, these folks might care about litigation. Someone must remember to tell them.

Ensure that proper processes are followed: Specified people within the organization probably have to approve settlement offers at certain levels. When some guy in the business unilaterally offers $1 million to avoid losing a client that’s important to him personally, you’re responsible for explaining the rules to that guy. Under Sarbanes-Oxley, you have a system for tracking litigation and related reserves. You must ensure that people use that system and that it’s accurate. When the auditors periodically (and at least quarterly) ask you to confirm that the system remains up-to-date, that’s your responsibility.

Improve the engagement of your team: Folks on your team should find their jobs engaging and satisfying. That’s your job. (And it’s probably a part of your job that’s quite different from anything you thought about at a law firm.)

Develop your team: In-house litigators may be one-trick ponies — they’re litigators, not generalist corporate lawyers — with little opportunity either to advance or to move into other parts of the business. If people on your team have an interest in moving up in your organization (or sideways, or even out), you must find those opportunities. Identify “stretch projects” that expand the skill sets of people on your team, and otherwise tend to the people who report to you.

Promote diversity: This may be a corporate goal, and you may be partly responsible for achieving it.

I’m trying to be neutral about this. Some people may read this list and think that, on reflection, jobs at law firms sound very attractive. Some people may read this list and think that in-house jobs sound better. I’m not passing judgment here. I’m simply explaining the difference between those two types of jobs, so people can make an informed choice between them.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now responsible for litigation and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

 

 

 

Above The Law