GCs and the Opposition: No Fear
The ABA Journal has picked up the “report” by a legal consulting firm that features survey results of in-house counsel about outside litigation firms. The sales page for the report (only $2,400), along with the summary, are here.
Some legal media outlets have been favored with a look at the report. One, ALM’s Tex Parte Blog, notes the reference to a “Fearsome Foursome” of outside firms: Boies, Schiller; Jones Day; Kirkland & Ellis; and Skadden.
One question that generated this eye-catching list topped by these four law firms was reportedly which firm:
“would you really rather not see as lead opposing counsel in a litigation case.”
Now is this something you fear? The entire firm? Really? Because you might lose on the merits? Or because you might lose a large chunk of your outside counsel budget getting to the merits? Or of ever getting to some resolution?
First things first: general counsel do not fear a given law firm. In fact, many GCs have a T-shirt at the bottom of the rag pile in the laundry room closet with this logo:
Prudent general counsel do not underestimate any opposing counsel. If my opponent hires David Boies, I know (a) this case is big and (b) I need a worthy outside lawyer as my litigation counsel. Not to get too clever, but if my opponent fronts a second-year associate from Boies, Schiller handling a matter adverse to my company’s interest, I am much more likely bemused than afraid.
On large transactions or for major litigation, general counsel hire an outside lawyer with clear expertise. Most of these lawyers work at major law firms (or did at one time). If I am the counter-party to a deal or a case, I calibrate my selection of counsel like a chess move. And with litigation particularly, I chose a short-list of lawyers, and then look at their firms as a secondary selection factor.
For major litigation matters, you are choosing someone who will first-chair the case if it goes to trial. If David Boies says “Enough!” one morning and starts “The David Boies Law Firm” in a small town in upstate New York the next day, would that do something to the alleged fear factor calculus?
I don’t fear much, but I do fear for GCs who fear certain law firms. It’s not a worthwhile emotion; it’s really more a career-limiting exercise. (But it is a memorable marketing moniker…).
Now runaway budgets, or end-of-quarter “surprise” invoices are something else. That might result in something close to fear.
So next year I propose different list. It will be a “dirty dozen” of leading firms whose invoices are preceded by an interval of looming dread. And, of course, I will offer it at a value-price of $9.99, and make it available digitally on your new iPhone 5: