In last week’s Fat Friday e-newsletter (available through Technolawyer), lawyer-coach Debra Bruce outlined five reasons why corporate general counsel generally stick to BigLaw, despite rumblings about how high hourly rates and associate salary increases may lead them elsewhere. Do these reasons apply when a GC is looking for appellate counsel? For the most part, I don’t think so.
Reason No. 1: GCs and other in-house lawyers are busy people. Most don’t perceive themselves as having time for networking, especially just to meet potential counsel. And when they are in a networking situation with lots of lawyers, they tend to get swamped like rock stars, so they avoid those situations.
For most companies, an appeal is an infrequent occurrence, so general networking isn’t a very effective way to find appellate counsel. GCs are more likely to seek a referral from someone they already know and trust.
From the appellate practitioner’s perspective, basic networking isn’t a particularly effective way of generating appellate work. The better approach is to cement a good reputation with the trial bar and establish relationships with trial lawyers who represent clients that value what a specialist brings to the table. Companies who hire litigation boutiques over large firms are better prospects than BigLaw clients.
Reason No. 2: Even if not all matters GCs send to big firms are large matters, many require the kind of quick response that necessitates throwing a lot of bodies at it, sometimes for PR or business strategy reasons, rather than the demands of the case or deal itself. Do you remember the Pennzoil vs. Texaco tortuous interference with contract case, with the record-breaking verdict in the 1980’s? That whole case would not have happened if Pennzoil had been able to get the formal merger documents completed and signed by Getty before Texaco swooped in. I’m sure lots of people were in hot water over that one, but they would have lost their jobs if they had been using a smaller law firm on the deal.
Absent unusual circumstances, appeals don’t run on an "emergency" basis requiring the kind of ramping up inherent in this example. Indeed, one of the challenges in appellate practice is explaining to clients how slowly the wheels of justice turn, with appeals being perhaps the best (or worst) example. When the process begins, the parties are somewhat at the mercy of the clerk and the court reporter, who must prepare the record before the appeal can proceed. Later, control over timing shifts to the appellate court, which generally metes out justice on its own schedule. Once an appeal is taken, the only stage at which the parties have any real control over timing is during the briefing phase, which often requires extensions to manage conflicting deadlines.
Reason No. 3: Fortune 500 companies often need many kinds of expertise in one transaction or one case, and the lawyers need to coordinate well with each other. It makes sense to do "one stop shopping" with lawyers that already know your business and your history.
Appellate lawyers are perhaps the last of the generalists. Although appellate practice has gained notoriety as a specialty, it focuses less on the substantive law than on the lawyer’s research and writing ability, knowledge of appellate procedure, and familiarity with the court hearing the case. Because appeals are limited to the trial record, knowledge of the client’s business and history are not as important as the ability to guide the client through the appellate process with the goal for that specific case in mind.
Reason No. 4: Multi-national companies are putting pressure on their law firms by insisting on multi-national law firms. And how many Fortune 500 companies are not multi-national in today’s global economy?
Appeals are inherently local. The appellate lawyer’s ability and reputation should carry greater weight than whether the lawyer is affiliated with a multi-national firm. Appellate judges appreciate advocates whose skills in whittling a complex case down to a few significant issues will help guide them to a decision. They generally don’t care whether the lawyer is a solo or affiliated with the biggest firm around. The court’s familiarity with and trust in the lawyer is a significant factor to consider when hiring appellate counsel.
Reason No. 5: Perhaps more important than any of the above factors, however, is the CYA factor. If a GC chooses a small to mid-size firm and they don’t get a good result, the GC will get blamed for having bad judgment in the selection process. If the GC chooses a large firm and they get a bad result, the GC can say "Look, I chose one of the best names in the business. I did all I could."
Of the five rationales, this is the most difficult to debunk. Hiring a large firm is still considered the safe choice, especially in "bet the company" cases. But not every matter involves that kind of risk. Today’s climate requires balancing the CYA factor against the bottom line and other advantages that hiring solo or small firm appellate lawyers may bring.