The Insider: What in-house lawyers really want from outside counsel

Sterling Miller

My friends who are outside lawyers are always interested in what it’s like to be in-house counsel. Besides being envious of the fact that I do not have to keep track of my time, they typically ask me, “What do in-house lawyers want from outside counsel?” I also keep in touch with a lot of in-house lawyers I work with, worked with, or met over the course of almost 25 years on the “inside.” They often share with me the things they like and don’t like about outside counsel, most of which I find matches my preferences too. I recently had conversations with both sides and it got me thinking about how in-house lawyers are not good at telling their outside counsel what they want, while outside counsel are not good at asking in-house lawyers what they need. This edition of The Insider focuses on what in-house lawyers really want from outside counsel. It is written based on my in-house experience and from the point of view of a general counsel (but I am pretty confident these points resonate with all in-house lawyers regardless of position, here in the United States and globally):

1. Be practical. The most important thing I need from my outside counsel is for you to be practical. You need to understand that “law review answers” may be interesting, but they are not very useful to me. I need practical advice, i.e., things that work in the real business world based on real-world experience – and which show me that you understand the context of your answer within the realities of my business. For example, think twice about telling me I need to register my trademark in 108 countries when I only do business in five. Be strategic in your thinking and options presented. Most of all, I need you to give me your counsel on what you would do under the circumstances. If all you do is tell me, “You have Options A, B, or C” but don’t tell me which option you’d recommend (and why), then you’re missing the point as to why I hired you in the first place. I may disagree and go with a different option, but that’s not necessarily a bad thing.
   
   Data privacy expert Chris Zoladz wrote a really good article about anticipating several core questions business executives will ask regarding legal advice about compliance with certain data privacy laws:
   • What is the cost of noncompliance vs. cost to comply?
   • How actively is the rule enforced?
   • What are consequences of noncompliance?
   • Who are companies that have experienced compliance issues and what were the results?
   These same core questions apply broadly to just about any type of legal advice you give. If no one is enforcing the rule and/or the consequences for a violation are small, but you’re telling me undergoing expensive compliance is essential because a rule is a rule, then you’re not being practical or “keeping it real.” In fact, you are probably losing credibility quickly, and so will I if I adopt the same posture with my executive team.
2. Keep me informed. I am surprised how often I need to remind my outside lawyers to keep me up to date and in the loop. Seems pretty basic but not everyone gets it. Here is a list of things outside counsel working for me should consider each day:
   • Have you returned my last email or phone call? If not, do it ASAP, even if you’re telling me that you cannot get to my question right this moment. At least I know you got my message.
   • Keep me updated even if I don’t ask about an update. Don’t make me chase you for information about my matter. Keep me regularly updated even if you’re telling me nothing new has happened. That way when the CEO/business calls me, I already have the answer. If your update or message is important, make sure I received it. Use a “read receipt” or follow up by telephone.
   • If you are out of the office, have you turned on your “out of office” message for email and voicemail? If not, are you checking it every day and getting back to clients? If you are not checking it and you do not have an “out of the office” message turned on, you are basically telling me you don’t care.
   • Don’t let me be surprised. I should know every important development, material deadline, hearing date, deposition date, etc. in advance, and you need to remind me of the deadlines as they get closer in. I do not have access to the sophisticated calendaring systems law firms use. I may put it in Outlook or I might write it on a post-it note. If I get surprised – or worse, the CEO or BOD gets surprised – that is a bad day for me ... and for you.
   • The bottom–line. Bad service like this is rarely something I will call you out on directly; I will just stop using you and your firm. You are accountable for everyone on your team as well. If they are not responsive, you are painted by that same brush. You have a lot of competition out there, all of whom are ready to return my emails and phone calls and keep me posted.
3. Communicate succinctly and in a useful manner. Twenty-page memos are not helpful. Ten-page memos are not much better. Find a way to communicate with me in a succinct and to-the-point manner. I wrote about legal writing skills in a blog post. While aimed at in-house lawyers, the points in that article apply equally to outside counsel. You need to keep things simple. If you need to go deeper, call me. We’ll get to the answer much faster that way. If there is a brief I need to review, don’t wait until the night before to send it to me. The odds of me having sufficient time to review it at that point are low. Let me know something is coming and then build in enough time for me to review, respond, and comment on important papers or decisions. Don’t assume what works well for one client works for all the rest. Ask me how I want you to communicate with me, e.g., via email, weekly phone calls, text messages, written status reports, etc. And for outside – and in-house – counsel under 30, I recommend you read this article on using the word “like” (it is 100% dead on). Finally, don’t send me a letter with an attachment you could have emailed to me (and then bill me for “memo to client”).
4. Cost vs. rate. There’s a difference between “rate” and “cost.” While I am shocked by $1,000+ per hour rates, I am willing to consider paying high rates if there is unique expertise that comes with the price tag. But what I really pay attention to is the overall cost of the matter. That’s because I need to see value for the money I am paying. If I do not feel there is value, it doesn’t really matter what your hourly rate is. If I have to pay for three additional lawyers to get the partner with the $1,000 rate, I am not sure that is going to get me the value I am looking for either. I do want to see you get creative with billing options. Fixed fees or “capped” fees, for example, are great because I get certainty as to my final cost. Give me different rates for differing types of work, e.g., charge me lower rates for the discovery phase and a higher rate for trial or a different rate for due diligence vs. drafting the merger agreement. And yes, it’s true: I don’t want to pay to train your first-year lawyers. I don’t mind if they tag along with you, but don’t bill me for it or, at a minimum, give me a highly discounted rate for their work. Lastly, there’s more you can do for me than just legal work. Make your associate training programs available to me and my team. Share work product (memos, briefs, etc.) with me – properly redacted. Give me guides, checklists, sample clauses and agreements, CLE programs, and other practical and useful tools, like desk books and handbooks. Give me access to your facilities and conference rooms if I need them. Find ways to give me more than just the billable hour I am paying for.
5. Don’t tell me it’s too hard to budget or predict costs. In-house counsel are expected to budget for every matter or, at a minimum, for the month overall. That is why I need a budget for every matter. You should volunteer this, not wait to be asked. No in-house counsel wants to hear that it is hard to set a budget or predict costs. I know it’s hard, but since that line doesn’t work for me with my CFO, it’s not going to work for you either. You can tee up the assumptions and note that if something material changes, the budget changes too. I understand. That said, you really need to spend time developing the budget and the assumptions that went in to it. If you just ballpark the number it will be obvious. Show your work. How many depos? Summary judgment motion? Document review for each MB of data? You should be able to accurately estimate the costs of the key milestone events. Don’t forget non-lawyer costs when you budget, e.g., travel, printing, data storage, court reporter, experts, etc. The budget is incomplete if you don’t include these numbers. Next, you and your team need to live the limits of the budget every day. There are no “black holes” for billing hours. If there are problems with meeting budget (i.e., a material deviation), do not delay in letting me know as soon as you see it. The sooner we can discuss it, the easier it is for me to deal with the problem and work with you to make smart choices to get spend back on track – or get the Finance team on board if that’s not possible.
   
   Follow the engagement letter and my outside guidelines (and ensure everyone on your team does, too). Don’t make me be the one who is reviewing the invoice and finding the wrong rates, misapplied discounts, or expenses that we agreed would not be charged to me on the bill. If you cannot get the bill right, I’ll question whether you will get the legal analysis right. It needs to be important to you. Important enough that you have already gone through the bill and made sure everything lines up under our agreement.
6. Ask me how you can improve. I appreciate getting the opportunity to tell you how you are doing and things you can do to improve your services. Just ask. I will complete your survey, especially if it asks relevant questions and seeks honest feedback in a manner that I do not feel will damage my relationships with the lawyers at your firm, i.e., I want to be honest but if you’re not preparing your team for honest feedback then I become the “bad guy” client and that’s not what I want. I also want to do an in person, well-organized post-mortem after big projects or litigation to figure out what we did right and where we (including me, my team, and my company) can improve in the future. That said, I don’t want to pay you and your team to work with me on a post-mortem. It’s a chance to team up to create a better relationship, not a way to bill a few more hours.
7. Learn my business. I mentioned above that you need to give me practical advice tied to the realities of my business. In other words, if you want to be my lawyer over the long term, learn how my business works, how it fits in the marketplace, what countries we do business in, who my competitors are, and what challenges the company faces (business and legal). Read our public filings, LinkedIn and Facebooks pages, and our press-room posts. Follow the company on Twitter. Ask me to grab some coffee and teach you the basics and give you insights into my company (I’d be happy to – and impressed that you asked me). Get the names of key industry publications and blogs and subscribe to them. Keep an eye out for things that you think might be helpful to me or that identify potential threats or bumps in the road. Send them to me, along with a short description of why you think the article is interesting. Become an advisor, not just a lawyer.
8. Your marketing materials/plans need a little work. You can send me all the marketing materials and brochures you want, but if it’s more than a few pages long, I am probably not going to read it. That might affect how you think about the ROI on your marketing dollars. Say what you need to say in two pages or less. I am interested in your credentials, but I don’t want to read a list of every speaking engagement you’ve ever had, or about articles you wrote in 1989. I find your client alerts and blogs helpful, but only when they are relevant to my particular area of focus (litigation, corporate, etc.), the business generally, or a specific legal issue I am working on. Don’t make me have to find them on my own. Ask me if I am interested in getting alerts/blogs and, if so, which ones. Make it easy for me. Your competition does.
   
   When you invite me to dinner or the game, don’t forget to invite my spouse/significant other if you can. They may not be able to come but they will appreciate you inviting them. And don’t forget my team. It means a lot to me if you think of them when opportunities for tickets, etc., arise. When we’re together, don’t hard sell me about your firm. I know why we’re at lunch or dinner. Let me get to know you and vice versa. Not every social outing has to be a big production. Breakfast (or just coffee) can be better than a three-hour dinner at the fancy steakhouse – and you get to be home that evening instead of entertaining me. Consider offering me five hours of free legal advice instead of dinner or tickets. That’s something I can really use!
   
   If you’re going to cold call me (literally or via email), you need to give me a really good reason to listen or read. If it’s about a new lawsuit, send me a copy of the complaint. Give me your initial thoughts and strategy (or explain why you’re an expert in this area). Show me how you can save me a significant amount of legal expenses, i.e., I am probably not moving law firms because you’re 5% cheaper than my current law firm.
9. Value my input. I am the best resource you have about the company. Not only can I help you get the information you need for our matter, I also understand the marketplace, the board of directors, the C-suite, and just generally how things work at my company. If you ignore me and my input, you are putting yourself and my company behind the eight ball right from the start. Make me a real part of the team. Note that the odds are good that I am not an expert in antitrust or tax or M&A finance or whatever else I hired your firm to work on. I will have questions and some will be very basic. Don’t assume I know anything about the litigation process or the intricacies of tax efficient corporate structures; I may be embarrassed to admit that I don’t. Ask me at the start of – and throughout – the engagement if there are any points of law I would like to understand better or learn more about. I will be grateful for the opportunity to learn. Be patient and answer my questions, but don’t talk down to me. Treat everyone on my team like you would treat the general counsel and don’t try to circumvent them and come directly to me (they will tell me). Basically, make me look good and I’ll make you look good. Be ahead of schedule and under budget. Do this and I’ll be a reference. I’ll do the “Chambers” thing for you, and speak well of you to the partner, and let your firm use the company name in your marketing materials. But you have to earn it.
10. Be honest and truthful. I know when you’re talking bull or not giving me the full story. No need to sugarcoat things. If something bad happened, I need to know what happened, why it happened, and what our plan is to fix it. Trust me, I am going to get asked those same questions from my boss or the board. If you dropped the ball, just tell me that. If I (or the company) dropped the ball, tell me that too. Be balanced with good news and bad, e.g., if we have major problems with our case, don’t wait until two weeks before trial to suddenly tell me that we need to seriously consider settlement because our position is really weak. You cannot imagine how poorly (by factors of 10) that will go over with the business – and with me. And don’t tell me every one of your associates is a superstar and every partner is top of their field. I know they are not. And that’s okay. In fact, you get bonus points if you say, “We’re probably not the best suited for that type of matter but we can get you some recommendations.” That will keep me coming back to you vs. a bad experience with your non-superstar associate or less-than-stellar partner.
    
    The good outside counsel I worked with over almost 25 years (and there were a lot of them) did all or most of the above regularly. The other ones did not. Every in-house lawyer will have a slightly different “top 10” – and I ask them to comment on this post and share their thoughts. I encourage in-house lawyers to be proactive and look for opportunities to tell outside counsel what you want and need, what you value and what you don’t, and what makes you happy or unhappy (even if you just send them this blog post). Outside counsel: If you want to know what in-house counsel want, ask them. They’ll tell you.

About the author

Sterling Miller has spent almost 25 years as in-house counsel. He is currently general counsel for Marketo, Inc. He was also general counsel for Sabre Corporation and Travelocity. Prior to accepting the position at Marketo, he served as senior counsel for Hilgers Graben PLLC focusing on litigation, data privacy, compliance, and consulting with in-house legal departments. You can read his blog “Ten Things You Need to Know as In-House Counsel” at www.TenThings.net and follow him on LinkedIn or Twitter @10ThingsLegal. His first book, The Evolution of Professional Football, was published in December 2015 and is available on Amazon and at www.SterlingMillerBooks.com. His second book, Ten Things You Need to Know as In-House Counsel: Practical Advice and Successful Strategies was published by the American Bar Association in April 2017.

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