“My advice is succinct,” my lunch dates tells me. “I
cut right to the chase, and I give the client what it needs in just two pages.
Then I send a draft of that advice to other people in the firm, and they say
it’s not what they need. ‘This is terrible. We’ll have to rewrite the whole
thing. Don’t worry about it; we’ll do it here.’
“My two-page memo gets
turned into 14 pages. They start with the main conclusion, which is just what I
said in two pages. And then they lard the memo up with citations. And then they
start with alternatives: ‘If this, then that.’ And then they rule out all the
alternatives, and come back around to what I concluded in the first place. What
fools! They’re just churning the bills! But it makes it hard for me to sell
what I do within the firm.”
Maybe.
Maybe not.
It’s certainly true that
I’ve seen overkill. The memo should have been a few pages long, and it ran on
forever. That’s a sin.
But I’ve also seen the
opposite. You ask someone for a contract interpretation, and they cite one case
and draw a conclusion.
You give the same
assignment to a real lawyer, and it turns out it’s a little more complex. There
are several different cases pointing in different directions. And, if you look
closely enough, it turns out that the negotiating history might be relevant.
The real lawyer thus interviews the three people on your side involved in
negotiating the contract, and reviews their notes of conversations, and gives a
fully informed opinion.
One approach is
basically costless. It gives you a conclusion, and it gets you to the finish
line. (And, depending on the lawyer, it may or may not be correct.)
The other approach can
be quite expensive. But if the issue is going to be the subject of massive
litigation, then it’s worthwhile to learn what the real answer is before the
case is filed.
The question is what you
need. Do you need down and dirty, since no one is going to challenge the
conclusion? Or do you need to know the real answer, because there’s going to be
a fight?
It also depends on what
you can afford to spend. If you can’t afford the real answer, then you might
settle for a fake.
But it also requires —
and this may be the key — that the lawyer doing the work can tell the
difference.
The lawyer who
underkills a project — producing a two-page memo where 20 were required — may
not know what good legal work looks like. (She may, of course. And she may have
proved that by doing thorough legal work in the past. But two pages and no deep
thought may also be all that she’s capable of.)
The lawyer who overkills
a project — producing a 20-page memo where two were required — has a different
issue. You’re comfortable that this person can beat the living daylights out of
a legal issue. But are you comfortable that that person has the self-restraint,
and confidence, to produce the lesser product when that’s all that’s needed?
As for my lunch date, I
don’t know what to think.
Maybe he doesn’t know
what good looks like, and he’s in fact not thinking about issues hard enough.
Maybe he doesn’t have
the capacity to think hard enough, and he couldn’t do it if he tried.
Or maybe, when the
situation calls for it, this person thinks carefully about all the issues and
produces work product that shows it.
For those guilty of
underkill: Are you sure you know what a complete examination of the issues
looks like?
For those guilty of
overkill: You have the raw skills, and you plainly know how to think an issue
through completely. But do you have the judgment (and the client’s agreement)
to produce less than perfection when that’s what the occasion requires?
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.
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