pillsbury outside counsel tt brev1
TRANSCRIPT
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How To Be Outside Counsel to Inside Counsel:
Eight Answers in Forty Minutes
Pillsbury Winthrop Shaw Pittman LLP October 21, 2011
Travis Brown
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1. Who is the Client?
• Stakeholders can be GC, other in-house attys; CEO, CXO, Board, Board Chair, divisions, Communications/IR/PR, shareholders, etc.
• How to parse in real life.
• Legal Ethics view incomplete.
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2. Why Bother?
• What is best outcome? A good outcome? Worst outcome? How to measure.
• For whom? The client? Stakeholder theory.
• Tension of best vs. good vs. disaster avoidance.
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3. What Are We Doing Here?
• Is the issue the issue, or an expression of another issue?
• Framing and re-framing the problem. • Creating value out of costs. Finding business
opportunities in disputes, negotiations.
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3. What Are We Doing Here? Cont’d
• Be an engineer AND a physicist.
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4. Remind Me Again What We’re Doing Here: Communications
with In-house Counsel
• Etiquette, politics, and substance.
• Cover memo. To/cc/bcc/forward.
• Transparency vs. confidentiality.
• Talk vs. write vs. meet. Against technology.
• Explicit vs. implicit authority, role.
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5. Where Do You Create Huge Value?
• Understand your role: to get to final or to gain yardage? Convince client of best do-able deal or achieve good relative field position and then let client decide? Other?
• And/or to resolve a set of issues among micro-clients – internal vs. external negotiations.
• Define role; create agenda; own to point of push-back.
• Bludgeoning is easy and adds little value; strive for elegant solutions.
Negotiations.
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6. What Do You Bring that Lesser Lawyers Don’t?
Emotional Intelligence.
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6. Emotional Intelligence, cont’d
• Don’t be: Petty, craven, ill-tempered, gratuitously aggressive, flappable.
• Do be: Poised, respectful, principled, patient but quick to get to the answer.
• Theory: In continuing relationships, parties are not deal maximizers, but value relationship. So you can over-argue, over-reach to your client’s peril.
• Everyone defers to competence and credibility. Be deeply competent and always credible but don’t be the smartest person in the room.
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7. What Matters When the Shouting Is Over?– Clarity counts. Who is the reader?
• Other Side executive, non-expert• Future counsel to Other Side in dispute• Your client’s executive• Your client’s contract administrator, implementation team • Judge/ arbiter/ mediator/ jury (@#$%^&)• Future litigation counsel to your own client.• Auditor. Acquirer in due dil. Others?
– Never underestimate messiness of real world … consider default settings to make compliance, performance easier
– If you cannot win a contract dispute with a highlighter, you’ve usually lost.
Drafting.
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8. What is the First Commandment for Outside Counsel?
Thou Shall Not Overkill.
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8. Overkill, cont’d
• How to calibrate the legal inputs to the task at hand. Management of client expectations.
• Limitations of the law school/law-as-appellate-decisions model.
• Imperfection, personality and judgment.
• Keep objective central: what is the range of solutions? Bias towards result, resolution, done deal.
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Take-aways:
• Outside counsel is valuable for expertise AND for technique;• BUT: Outside counsel is often handicapped by ignorance
of the client’s real agenda, MO, and organizational landscape. So expertise and technique need to more than offset that handicap.
• Outside counsel is more valuable if expertise extends to skill at attorney-client cooperation, project management, extra-legal support, mind-reading.
• Good to be right, better to be effective, best to be trusted. • Curiosity, Modesty and Agility are key in understanding,
supporting and owning the relationship.
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Now: Do It!
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• © Travis Brown 2011