Rachel is in-house counsel who has been asked by her CEO to recommend external counsel for an international arbitration. She notices the word “recommend”. The appointment will be by the CEO, overseen by the Board, paid for by the company, and if anything goes wrong to embarrass the CEO before the Board or others, Rachel’s recommendation may be questioned. Immediately three names of lawyers practising in that area come to her mind. They are Alex, Brook and Casey whom she knows decreasingly well in that order. Their fees are much the same expect for Brook whose fees are around 10% lower. Rachel realises this could be significant over the course of an arbitration and if she recommends Brook, she could save the company about her own salary.
She knows Alex best from initially meeting at a conference and then having the occasional coffee or casual lunch. They are professionally friendly and relaxed without being personal friends. Alex has encouraged Rachel to email or call when she has questions which Alex could answer without research, and Alex always responds within an hour or so free of charge. Through these interactions she has developed something of a connection with Alex and has had a chance to assess Alex’s ability.
Brook is perfectly pleasant and once took her to a fabulous 10 course degustation dinner at a Michelin starred restaurant. It had been amazing food and the conversation with Brook and a partner from Brook’s firm had been convivial. She had not heard much from Brook since then although they were friendly when they bumped into each other now and then.
Casey is different. Casey is undoubtedly the most technically proficient of the three and known to be a masterful, merciless tactician. Perhaps because of these skills, Casey is also known to be grumpy and difficult to contact, shunning emails and routing all calls through a fiercely protective personal assistant. People said you never really had Casey’s attention until two weeks before trial but then that attention was intense and unwavering. When they had met at a conference, Casey asked her why she had “opted out” of the profession and then walked away before she could answer. She found Casey quite intimidating, both from manner and intellect, but knew the case would be in good hands once it received Casey’s full attention.
Whom should she recommend? She knows cost is important and the CEO will be impressed if she can save as much as her own salary. There are some quite technical points in the case that might benefit from Casey’s acknowledged brilliance but the others would be able to handle them competently. Experience has taught her that the board and the CEO will require regular meaningful reports and will not respond well to surprises. When they have a question they will want it answered fairly quickly and will not be assuaged by protestations of counsel’s unavailability.
Let's see if we can help Rachel in her dilemma.
Corporate counsel clients.
A convenient but discerning pool of potential new clients are corporate counsel. Almost all have been in private practice themselves and understand how firms work. All manner of factors have operated to impel them to leave private practice and work in-house, some permanently and others temporarily. Courting corporate counsel will enhance young lawyers’ prospects of reaching senior associate and partner, and will help retain and build a practice as partner. It is never too early to start making meaningful contacts in business. And firms never reach the stage where they no longer need to make or work on their business relationships.Add paragraph text here.
From loathing to loving.
For the first few years of courting you may not attract any clients to the firm, but what you are doing is developing your business relationship skills. They are not skills that come naturally to many lawyers, and certainly did not to me. I loathed marketing events where one has to turn up and perform when you would be much more comfortable back at your desk doing what you were trained to do and what you enjoy. But if we practice the strategies in this article from early in our career, not only will we draw clients to the firm but we can actually enjoy the otherwise intolerable marketing exercises and even make some pleasant personal connections.
Half the budget wasted.
My view of how best to impress corporate counsel and corporate clients has completely changed since moving in-house about nine years ago. Before then I had the usual idea that if I and my firm were technically excellent, our reputation would reach those who matter. Build it (your reputation) and they will come. After leaving private practice for in-house, I have realised that that approach is either outdated or it never was the best way to attract clients. I have observed the courting tactics of firms and my reactions to them, and have asked other corporate counsel their reactions. Frequently, the approaches of firms miss their mark completely, to the extent I believe about half of firms’ marketing budgets are wasted. Obviously that is a very rough estimate from generalisation and simplification but is an indicator of how often I and my colleagues feel a particular marketing effort has been unproductive at best, and sometimes has been counterproductive at worst.
Clients spoiled for choice.
An important revelation to me was that companies have their pick of legal firms. They are spoiled for choice. The top tier companies have many top tier firms to choose from; mid-tier companies have even more mid-tier firms available and smaller companies can choose from an innumerable array of small firms and sole practitioners, or can engage mid- or top tier firms. Rarely, if ever, is there no real choice for a matter.
Competence is assumed.
A revelation which come some years after being in-house is that competence is a given. Corporate counsel are assailed with brochures and emails and seminars all touting the competence of firms. After some time of receiving that material, the realisation dawns that most firms and lawyers are competent. Most of them are able. Of all the firms I have interacted with, I would not say any were incompetent or unable. Expertise in particular areas of the law will vary and may determine which firm is chosen, but once that is established, competence is assumed. This is particularly so for top tier and well known mid-tier firms.
Lawyers will not be working for those firms if they are not competent in their professed area of practice.
Without wanting to offend anyone, corporate counsel do not see a great deal of differentiation in the ability of firms within the same tier and within a given area of expertise. I know from my days in private practice that lawyers can be very proud of their firm’s name and can genuinely feel that their firm is “better” than others over a number of parameters – experience, ability, reputation, areas of expertise, honour, carefulness, professionalism, number of lawyers and so on. Both firms I worked for had that view of themselves, which I naturally shared. All of it may be true, but those views are not always shared by other firms about our firm, and potential clients are rarely aware of the features of which we are so proud. Few corporate counsel will have come from our firm and most will not think as we do. Firms in the same tier are generally seen by corporate counsel as having broadly the same values with minor variations.
This has an important consequence which I did not realise until a few years in-house: prospective clients are looking for something more than competence, because competence is assumed and shared by many. The corollary of this is that it is not enough to convince prospective clients that you are competent or even smart. Something more than smart or clever is needed to differentiate you from the pack.
Very rarely are legal rankings decisive in selecting a lawyer. They might be a convenient starting place when one does not know the jurisdiction. Only where a lawyer is being sought in a specialisation or location with which we are unfamiliar and where none of our contacts can recommend someone would be turn to the rankings. Even then that would only be a starting place and we would search hard for some confirmation. I sometimes wonder if the time spent chasing ratings might be better spent making real connections.
That time could be put into the 4As which can provide the differentiating factor.
Discussing these thoughts with other corporate counsel led to the 4As 0 the four factors that would be attractive to corporate counsel in their lawyer. These were , adapted from the words of a doctor to his son who had asked the secret of getting and keeping patients. With some minor modification they seemed equally appropriate to lawyers and clients.. No doubt there would be some counsel who disagree and some situations where they do not apply. Those factors are, this order:
This is precisely the reverse order most of us would imagine. By training and instinct, we naturally think ability of lawyers is the most important quality to clients. Next we would expect cost to a decisive factor, followed by the softer features of being available and affable. I will explain why this order is important shortly.
The beauty of this order is that effective marketing is within the reach of the rawest recruit. Just as importantly, it does not need to be the dreaded ordeal it usually is, going against the grain of the typical lawyer’s personality. Nor does it require great expense. In fact, often the simpler it is, the more effective it is likely to be. For example, every new lawyer could be asked to find a group or committee or association they are genuinely interested in and be given time to participate meaningfully in its functions. They could be encouraged to make real connections there in a way suiting their own personality and be given tools to help in aspects that do not always come naturally – perhaps a little training in making and breaking contact with people; maybe some suggestions on conversation starters or changers; and hints on overcoming shyness and dealing with crowds.
On that topic, I once read two very helpful hints that I now practice to help overcome shyness and discomfort at networking events. The first is to arrive early. The natural inclination of shy people is to slide in later when no-one will notice, but the problem is you are creating your own nightmare. You are waiting until there is a crowd of people who are comfortable in the room and with each other, and you are arriving at the door as the new person. Arriving early – even first – beats this. You have time to be comfortable in the space and when others arrive, they are the new people and you are settled.
The other hint will grate more on some, as it did on me. It is to dress to be noticed, not to blend in. Again, we shy ones prefer to wear rather nondescript clothes so we don’t stand out and we can glide around in the shadows. But this only accentuates the problem when we are at a function whose very purpose is to see and be seen. If we dress to be seen and not overlooked, we will be more comfortable with being seen – we acknowledge by our clothes that we expect and welcome attention. It also gives us a little confidence boost. If we dress as a shrinking violet, it can be painful when we are noticed or have attention drawn to us and we just want to flee. We don’t have to be Lady Gaga or Liberace, which may be equally uncomfortable for some, but there remains room for smartness without flashiness.
This is the type of support young lawyers could be given to help them be one of the firm’s best assets and to make the most use of their legal ability.
Let's turn now to the four qualities and explain why they appear in that order.
Being affable here simply means being friendly, pleasant, relatively normal, and not too pushy, mercenary, pretentious, or weird. An example I often give of how even the youngest of lawyers can attract the largest of clients is of being on a Law Society committee with two younger lawyers, occasionally walking back with them from meetings and sometimes stopping for coffee. That casual acquaintance grew into a friendliness over a simple pizza lunch with other of our lawyers and then into drinks with our respective bosses. From those insignificant beginnings, the firm has been given work around the world and we have taken a secondee from their office. It all started with two young lawyers just being pleasant people, not having to impress or show how smart they were, although I gleaned that incidentally as we chatted.
People, including in house counsel, respond much better to overtures when they do not feel they are being given the hard sell and when the connection is more organic. Encounters such as those are far more likely to grow into something longer term than is a LinkedIn message out of the blue followed by a coffee with a couple of partners wielding the firm’s brochures. Yes, “brochures” plural, with often each area of expertise glorying in its own four-pager, rarely read and always binned.
The good news is that it is often not lavish meals or events that attract people to external lawyers. While those things can be pleasant and can achieve a certain purpose, frequently they are impersonal and not ideal for making a lasting connection. It is often the lead-in or follow up to an expensive event that undermines its utility for attracting people. A typical courtship sequence is that one of the in-house team meets a lawyer from a firm, and the firm then invites some from the in-house team to a fancy lunch, attended by two or three from the firm. This is usually the first time they have met each other apart from the instigators. Pleasantly predictable conversation ensues over equally pleasant food, and fond farewells are said. Emails of gratitude are exchanged on reaching the office, and nothing more is heard from the firm. Perhaps the firm is waiting for the company to send work, or perhaps they have written them off as a potential client.
Patterns such as this are common. To my mind, it is like courting someone by taking them to an expensive dinner the very first time you meet them, having a pleasant time and sending a nice text on reaching home, and then never contacting the person again but expecting them to call you in their hour of need. But one dinner doth not a relationship make.
This is one of the reasons I say that half of firms’ marketing budgets is wasted. Lunches leading to no further contact are a complete waste of the firm’s money and the lawyers’ valuable time. In fact, they can be counterproductive if the in-house team is left feeling not worth the firm’s effort or unimpressed for other reasons. Of course, it may well be true that the firm has decided to cut its losses and not pursue a hopeless cause, since clients have a finite amount of work to brief out.
It is easy to list the things not to do to be affable. I will try and limit these to more generic, less pointed ones. First, do not let corporate counsel know you think they are second class lawyers even if you do and they are. They already feel their private practice colleagues think this and it will not endear you to them to have it confirmed. I once heard a partner in a firm say of someone “He was a practising lawyer but he went in-house”. That comment may have been based on some technical point that a practising lawyer is only someone with a Practising Certificate, but no corporate counsel thinks she or he does not practise law.
In the same vein, it can be counter-productive to try so hard to appear clever that you make your corporate client think you feel superior or more intelligent. It can be helpful to bear in mind that all corporate counsel have been in private practice as you are and they do not feel inferior. Instead of making them feel you are smarter, why not find something to compliment them on or ask them about or just comment on? I’m not suggesting sycophancy here – that just turns people off – but the simple psychological effect of making someone feel you are interested in them or admire them for some reason. Justice Mary Gaudron, the first woman to be appointed to the Australian High Court, said she had no idea her jokes were so funny until she was appointed to the Bench. We’re all aware and guilty of this natural syndrome, but I am suggesting a more genuine interest in your target.
Rudeness can have greater effects than might be appreciated. Coffee meetings cancelled because “an urgent matter came up” or “I have a client meeting” send the distinct message that your target is not important. When we cancel a seemingly social meeting for such reasons, our target is not impressed that we are so dedicated to our clients that we put them first before all. Rather, she or he thinks we do not consider them or their future work significant enough to honour an appointment. While they probably won’t hate us personally, they will most likely form a negative view. When I’ve been the subject of those cancellations, I find there is a reluctance to bother with a second appointment, and they rarely occur.
Private lawyers may not appreciate the large salary differential between them and corporate counsel and the feelings this can engender if emphasised. Corporate counsel buy their fewer working hours with a significant salary sacrifice. For most, the business class skiing holidays, the wine in the hundreds of dollars, the third, fourth, fifth properties, and the thousand dollar shoes are no longer feasible. Over-much mention of such indulgences in front of those who cannot indulge may unintentionally present as pretentiousness, producing an obvious negative impression.
There was a time when senior lawyers in particular could be quite precious prima donnas, demanding they be danced attendance on, expecting excessive deference, and generally behaving rather badly. Those were less egalitarian days when seniority and expertise conferred a sense of entitlement to behave almost eccentrically. A very senior Queen’s Counsel once refused even to meet three executives of a high value corporate client who had flown two hours for the sole purpose of meeting him. They were sitting in his lavish chambers’ waiting room while their solicitors were granted an audience with the great man. He explained that he could not possibly meet the clients because he could not read the brief that had been delivered earlier. When asked (with some temerity and timidity) why it had not been possible to read the brief, he explained that the pages were not numbered. The clients left chambers and the city without ever having set eyes upon his eminence.
Few of us can afford to act that way these days. Perhaps the highest reaches of the profession who are inundated with work or are careless whether they receive more can indulge their grand delusions. It does not fall within my definition of affable and is unlikely to attract many when alternatives are readily available.
Decisions can turn on seeming trifles, particularly if they touch feelings. At a cocktail party I greeted an acquaintance whom I had thought was pleasant. Immediately after saying hello he excused himself to “refresh my glass” which I noticed was still at least a quarter full, and walked over to chat to some ladies. I don’t blame him for preferring their company to mine but the blatancy resulted in other organisations being preferred to his when the choice arises. I appreciate this smacks of being precious but it is how humans work when there is little else to differentiate between service providers.
One of the most frustrating things for in-house counsel – for any client, in fact – is not being able to contact their lawyer. Corporate counsel report to commercial people who themselves report to someone higher in the organisation, be it an executive or the Board. Everyone is under pressure to report, explain, prevent surprises and help decisions be made. Corporate counsel will bear the brunt of commercial ire if the lawyer they have instructed rarely responds. That lawyer could be brilliant or cheap or very friendly, but if she or he replies slowly to emails or infrequently takes phone calls, some other lawyer can usually be found just as smart, cheap or friendly who will be more accessible and therefore more useful.
Being available does not mean giving a complete answer to every email or phone call soon after it is received. As has been said many times, a quick acknowledgment with an estimate of when a substantive answer is expected is all that is required.
Barriers to availability can also be annoying, with secretarial screening of phone calls being high on the list. Some time management experts suggest setting aside blocks of time to work without taking phone calls or reading emails. This is understandable provided it has handled well by those answering the calls. We are ready to excuse if, on asking for the lawyer, we are immediately told the person is in a meeting or not available until later in the day when they will return the call. We are less forgiving when we are asked our name and then told the lawyer is not available. It feels as though we are being singled out for exclusion while other more important clients are being admitted. Advice from time management experts should be balanced with advice from client management experts.
Even when time is not blocked and lawyers are taking calls, it can be demeaning and annoying to be asked your name before being transferred to the lawyer. It is as if the lawyer is being given a chance to refuse to speak to you, reinforced by a delayed response from the screener that the lawyer is “not available”.
Worse still is the unnecessary and unpardonable “what is it regarding?” It is very irritating to have to explain oneself to a gate keeper, as if begging leave to be granted an audience. Interrogations of that type are totally unnecessary and bordering on being precious. An argument might be mounted that they are justified to avoid the lawyer being put in an embarrassing position professionally, such as the possibility that the caller is an opposing client who thinks they can cut through the process if they can just speak to the lawyer on the other side. Those calls can happen but they are so rare as not to justify the inquisition, and in any case it is unlikely the information would make it any easier for the gate keeper to determine that the call was inappropriate. If the caller’s name did not raise an alarm, it is unlikely the matter will unless the screener is very close to the file. Even then they would need to check with the lawyer who knows the matter, so the additional information adds nothing to the process other than aggravating the caller.
Remoteness of access or remoteness in manner can make someone effectively unavailable as well as not being affable. If someone is intimidating or gruff to approach, it makes one hesitate before contacting them. While this might be what they intend, it undermines their effective availability and may drive some in-house counsel to a more welcoming lawyer..
This is the feature most lawyers expect to be first in the briefing calculus. Ability is the quality we have concentrated on all of our student and professional lives and that we feel will carry us through our career. Of course this is true, but it is not the whole truth. There are other facets of the picture which show the true place of ability. One of those is that clients, particularly lay clients, are imperfect at assessing legal ability. They will judge ability by their lay standards which can be quite different from professional standards. A safer guide to our true ability is the view of judges before whom we appear, partners for whom we work and our opponents. But they are not our clients and they are not the ones to whom we are marketing ourselves and the firm.
A second facet is that the most able lawyer may not advance to partnership or attract a following if they are rude to clients or do not serve them acceptably. An extreme example I encountered early in my career was a very bright young partner who revolutionised the litigation practice in the firm but had such an abrasive manner that clients and staff left. It turned out that manner was partly due to a “global personality disorder” which resulted in his being struck off and imprisoned for misappropriation of about half a million dollars. As I say, an extreme case but examples abound of technically clever professionals having a low EQ and not being able to attract or keep clients or staff.
A third facet is that mentioned above, that, as smart as we feel, the unhappy truth is that there are many just as smart and able as we. Clients are spoiled for choice. There are so many able lawyers available that something more than ability is needed to draw clients to you.
Yet another facet is that other considerations are intruding into the briefing calculus. Questions of equal opportunity and diversity are arising, with some clients asking firms to indicate how they promote those values and taking the answers into account when deciding whom to brief. Clients might even have a more targeted policy of requiring a proportion of work be given to particular genders, races, minorities or other groups. Thus ability alone recedes further into the background.
I emphasise ability alone because ability is still important. It is still on the list of the four important criteria. What do we mean by ability here? I confess my understanding of ability has changed since moving in-house. Before then I had the traditional black letter lawyer’s view of ability being good knowledge of the law and an ability to apply it creatively to produce clients’ desired solutions. No doubt such a lawyer is able but it is not quite the corporate counsel’s ideal version of an able external counsel.
Corporate counsel need practical, sensible, useful help dealing with the awkward situations that arise. While they appreciate that a certain amount of legalese is necessary, they need more than that. They value external counsel who can roll up their sleeves and get in with them and help sort out the situation. I look back and shudder at the number of times I proudly pontificated on the law and its application to the facts without getting in and grappling with the commercial difficulty faced by the business. Only now can I see what little help many of my advices would have been.
There are some particular things that I find are a poor proxy for ability. Happily they all begin with the letter “P”. One is pedantry for the sake of pedantry. We all appreciate the need for certainty and carefulness – of having the corporate names exactly right, for example, or choosing the correct word in agreements to avoid ambiguity. A line is crossed, however, where parsing does not enhance certainty and is mere pettifogging. One pet peeve of mine is unnecessary definitions. The law seems to have been gripped by a definition mania, where even normal, perfectly understandable and certain words and phrases need to be defined. An extreme example was counsel “Mr Smith QC” being defined as “Mr Smith”. Would there have been any uncertainty had he been referred to without the post-nominals and without definition? If that were offensive, what harm would there be in using the post-nominals in every reference? This seems a petty matter, but whenever I see such things, the impression is that the pedantry is a substitute for ability, not its consequence. It appears to be a concentration on form rather than substance.
Another proxy for ability is prolixity, and it is not appreciated by in-house counsel. I’ve often told of receiving an advice in two parts from counsel on a technical stamp duty case. The first part was 98 pages and the second was around 102 pages. Thrice I reached about page 30 in the first part and only twice did I bother to start again. The advice was useless and was a mark of counsel teaching himself as he went along but not going back and condensing the advice into a digestible, meaningful piece. The saying, attributed to many, comes to mind that “if I had more time, I would have written a shorter letter”.
True ability here is being able to reduce complex legal and factual issues to advices understandable by and useful to commercial people. Often the role of the in-house counsel will be to translate external advices into commercially useful advice. The less they have to translate, the more helpful and able is the external lawyer to them..
Rachel’s dilemma resolved.
Applying what she has just read, Rachel drew a table to help her decide and scored the lawyers on the four criteria of affability, availability, affordability and ability out of 100 for each quality based on her observations noted at the beginning. The lawyer with the highest score would be favourite for recommendation unless there was some wild card.
Their scores for affability, availability, affordability and ability out of 100 were:
Alex 50, 50, 30, 30 for a total of 160
Brook 30, 30, 40, 30 for a total of 130
Casey 20, 20, 3,0 40 for a total of 110.
She realised that this gave equal importance to each criterion and that she should apply a weighting factor to show the relative importance of the qualities. As the differences were not great, the weighting factors had to be fairly close. For example, factors of 40%, 30%, 20% and 10% (totalling 100%) for each of those criteria respectively would place too much emphasis on affability and too little on ability. The weighting she applied was 28%, 26%, 24% and 22%.
After applying that weighting to the above raw scores, the final figures were:
Alex 14, 13, 7.2, 6.6 for a total of 40.8
Brook 8.8, 7.8, 9.6, 6.6 for a total of 32.8
Casey 5.6, 5.2, 7.2, 8.8 for a total of 26.8.
She was pleased to see that the result she felt was correct was confirmed without any massaging of the figures.
It is within the reach of the newest lawyer to make meaningful connections with corporate counsel that can mature into a client relationship. Even if no new clients are made in the first few years, young lawyers can use that time to make their contacts, fine their niche and hone their connecting skills. This can be done in a way that turns a dreaded necessity into a pleasant pastime. While ability is vital, it is also an expected prerequisite, possessed by many. Many corporate counsel look for some differentiating feature when deciding whom to instruct among those of generally equal ability. Affability, availability and affordability can be those features, often in that order..