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February 02, 2017

John F. Lynch: "Sitting on the Wall." How should outside counsel think about in-house counsel?

The client wants you on that wall looking after his problem and being mindful of his career. If the night is cold and rainy, and if down in the client’s bedchamber the fire is roaring and the best brandy has been opened, you are still to sit on the wall and look for the Hun.

We're lucky that veteran patent litigator John F. Lynch is a regular reader of this blog. Born and educated in Manhattan, John moved to Texas shortly after the New York bar examination, went to work at a relatively large Texas law firm specializing in intellectual property firm, and eventually became a partner in that firm. In later years, John's firm merged with a larger Washington, D.C. firm, where he would be a partner and chair the new firm's IP group. John now lives in the Seattle area.

About ten years ago, the firm asked John to give a talk on lawyering--with an emphasis on developing and keeping business--to his firm's antitrust group at a Florida retreat. He kept a copy of the talk and, last month, sent it to me as his slightly different but complementary take on this blog's 12 Rules of Client Service. We thought his remarks were not only excellent but also took up a notch the quality of this blog's running conversation on building enduring service cultures at corporate law firms.

In the talk, John is addressing this question: exactly how is a General Counsel, in-house lawyer or other executive at a client company likely to view the true role of outside counsel in almost every engagement--and especially in difficult ones? He answers the question in three parts which he denominates as "three rules". So we asked John if we could print all or some of it here. He agreed. Today we're publishing his Florida talk to his old firm--it's entitled "Sitting on the Wall"--in its entirety. Note that except for a few punctuation changes, and my underlining the key sentence in each of three rules John mentioned in his talk that day, we've taken no liberties with the text:

Good afternoon.

I have been asked to speak briefly about my observations about the practice of law, and in particular about developing business: how have I done it and the guidelines that I have pursued in that effort.

At the start, I will observe that the how and why legal business gets gotten is perhaps the most mysterious phenomenon related to the practice of law. Most of us lawyers are Type A personalities which, as a corollary means we are paranoids. We wonder what we’ve done wrong. Why is it that clients will not hire us? What is it out there that is conspiring against our developing a solid client base producing repeat business year after year?

I cannot dispel the paranoia, in fact I encourage it. It’s healthy particularly if it keeps us alert and attentive to our clients’ wants and needs. But when we look at ourselves, we are looking in the wrong place to answer how to develop clients. We have to look at the clients and what they want.

From a perspective that is at least long, I can offer overarching counsel that you develop clients and client loyalty by doing what I call “sitting on the wall.” It’s kind of a parable, but I’ve never been able to explain it better than “sitting on the wall.” In that parable, the client has invited us to his or her castle for purposes of defending it in one fashion or another, and your message to the client by both words and action is simple, “You go to sleep tonight with your family and do not worry. Even though it’s cold and rainy, I will sit on the wall, and if the Huns come in the dead of night I will pour hot oil on them and drive them away...and I will try not to wake you in the process.”

gargoyle-notre_dame (1).jpg

I wound up with this philosophy about sitting on the wall as a result of making three observations that I call rules about the business of lawyering. As I said, being self centered lawyers as we are it is difficult to begin where we must begin not by looking inside ourselves, but rather by looking inside the individuals from whom we seek employment. Who are these people? What are they looking for? Are they different from us, and if so, how so? These are inquiries into customer needs, customer preferences and customer impressions and these are the core questions that must be made in any service business.

First Rule

And that is what we as lawyers do. We provide a service. So that is the first rule: To recognize and understand that lawyering is a service business. As an individual, you must get out of your head that that you are marketing a product. We are not selling the product of superior legal analysis, or the product of skillful advocacy, or even the product of artful cross-examination or eloquence before a jury. You or your firm will so advertise, but that’s of no consequence.

If you think about it, the typical client is inundated with material about the product offered by law firms, and for the most part he or she probably has concluded that there are a lot of lawyers offering good product.

Now that is not to say that there may not be in this audience a lawyer whose skills in one or another area are so extraordinary, so exceptional, that clients will flock to acquire that product. But even in those instances, I will suggest that greater success could be realized if that extraordinary talent could be repackaged and marketed as a service. And for the overwhelming majority of us, we are selling a service, and we will succeed if our service is good. The essence of service by its very nature means that you are adapting to the client’s needs and desires. You are not requiring the client to adapt to you.

Second Rule

The second rule is to recognize that clients have careers too. It has long been the case that the determination of success or failure may be much more arbitrary for an in-house lawyer or a corporate executive than it is for us as outside counsel in a law firm. After all, we all have the privilege of speaking only about our victories when in the presence of the client, since the client may not be aware of the defeats. But there is no corporate general counsel out there whose entire won-loss record is not known by the CEO who sits over him and who controls his employment. So keep in mind, that the folks who are hiring us are entrusting us with preservation of at least a part of their career. They have a problem of one type or another, and they are putting that problem in our hands for us to solve.

That’s what virtually all lawyering is: problem solving. There is a problem because the client is accused of impinging on the rights of some one else or because that someone else is perceived as intruding somehow on the rights of the client. Sometimes the problem has not yet matured, and the lawyer is asked to assure it does not mature. The client’s commission is: Make the problem go away. Sure, they want to remain informed. Sure, they want to participate. Sure, they want and need a budget that is followed. But the bottom line is that the client gave us a problem to solve, and since we aspire to represent clients in the most difficult and most important cases, what we aspire to is to represent our clients in solving the largest problems that they have. For the individual within the client responsible for hiring us, those are career shaping employments.

It is important that we remain conscious that our employer is not a faceless corporation with a lawsuit or other adversarial contest to win. Our client truly is a lawyer or executive with a career shaping problem to solve. That realization will affect how you deliver your service, and how you work to relieve the inevitable tension that can build during an employment.

Which leads to the third rule.

Third Rule

The third rule is to remain aware that, despite the requests for updates and briefings, in virtually every employment the client is trying to transfer the load that is his problem to you so the problem is no longer a burden, so it no longer inhibits the client’s activity. In short, the client wants you on that wall looking after his problem and being mindful of his career. If the night is cold and rainy, and if down in the client’s bedchamber the fire is roaring and the best brandy has been opened, you are still to sit on the wall and look for the Hun. You may get a visit out there on the wall, and you may even get a hot chocolate, but if you have the client’s ultimate trust you will never be invited into the warm bedchamber while there is a possibility of attack. It’s not ingratitude. It’s simply that you have been entrusted with this job and the job requires sitting on the wall--if you don’t do it someone else will have to. And if that someone else does it and does it well, that someone else will win the client’s trust. Only when the enemy no longer threatens can you leave that post on the wall.

I had a very talented partner who will remain nameless who seemingly had all the tools for success. He was bright, able, eloquent, charming and had an excellent understanding of the law. But if you watched closely around clients, his message was, “You go to sleep tonight with your family and don’t worry. But because it’s raining, I’m going back to my castle to enjoy the fire and perhaps the brandy. But don’t worry. I have a very fast horse, and if the Huns attack, just let me know and I will be here immediately and I will drive them off.” It didn’t sell, and you could see it. That message was communicated indirectly in many ways, but the upshot was that clients were never able to be confident that a problem had been fully offloaded to that lawyer. That lawyer seemed always to impose conditions on the service. There were inconveniences that took precedence over his rendering of service. The product was admittedly good, but the service was lacking.

When you get to the how-to of all of this, I could go on and on, but the take-away is simple. An employment is not about you or about the firm. It is about serving some individuals by solving their problems efficiently as possible. So the hallmarks of a lawyer giving good service are timeliness, reliability, accessibility, and making sure that the best surprise is no surprise, all in the context of a tacit acknowledgement that you as outside counsel are committed to be of service. Also take a genuine interest in the career of the individuals that employ you. Tell them, occasionally in so many words, that you are committed to make them successful. Cultivate a culture of being helpful, of providing assistance. When you are dealing with a corporate client with a corporate law department, become acquainted with those lawyers and encourage them to give you a call not so you can have a client, but so that you can be helpful. For any minor matter and offer to help if they ever need some he, and offer to help on the cuff. As corporate lawyers grow and ascend into positions of responsibility, the parts of their Rolodex that are most precious are the phone numbers of the outside counsel that they can turn to reliably to assume problems from their shoulders and propel their careers. And even if they move across the country, they will continue to call those numbers when the really threatening problems arise.

And that’s what we are in this business for, right? To do the really important stuff and the hard stuff. Lord knows why we want that, but we do, and the way to get there, as far as I can see is by sitting on the wall.

Thanks for the opportunity to speak to you, and I hope your retreat is a dynamite success.

Copyright 2003-2014 John F. Lynch All Rights Reserved.

Posted by JD Hull at February 2, 2017 08:08 AM


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