Towson attorneys review new legal resource about successful

I started college in 1969 and took on, simultaneously, a collection of premed science courses and a number of creative writing courses, so that I could write prose and poetry between patients and operations. A semester of organic chemistry pushed me away from the emergency room and into a degree in English, which led to law school, which has, in turn, opened the door to a broad trial practice spanning more than two decades.

I last wrote a review of any kind for Professor Coleman's sophomore writing course. The assignment called for a movie review in the style of Pauline Kael, then a revered contributor to the New Yorker Magazine, regrettably, now deceased. My professor critiqued my critique as more honest than spicy. I took the comment as a not-so- subtle direction away from movie reviewing.

So, with confidence that this review will not suffer the scrutiny of Professor Coleman (whom I am quite sure has joined Ms. Kael), and with input from my colleague, Katherine D. Williams, who shares my view that the work reviewed offers an efficient, invaluable resource, we offer these thoughts on Successful Partnering Between Inside and Outside Counsel.

Teaming up

Successful Partnering is a new four-volume loose-leaf treatise written by a distinguished team of authors, including general counsel of more than 75 Fortune 500 companies and chairmen or senior partners in many of the country's major law firms.

This comprehensive treatise is itself an example of successful partnering on more than one level. It is the result of a joint project between West Group and the American Corporate Counsel Association. Also, in-house and outside counsel teamed up to write chapters that cover every aspect of the partnering relationship. Thus, chapter by chapter, the book uniformly presents the point of view of both inside and outside counsel, making it a reference tool no matter which side of the house you're on.

This treatise does not just focus on how counsel can better coordinate efforts and work together efficiently. As the treatise's editor, Robert L. Haig, a partner in the law firm of Kelley Drye & Warren LLP in New York City, states in the book's Foreword, the authors describe specifically what work inside counsel should do and specifically what outside counsel should do.

Grouped by subject

The book's 80 chapters roughly follow broad general subject areas.

Development. Volume One (Chapters 1-23) explores the development of the partnership relationship. Chapters 2-5 cover topics important to in-house counsel, such as pre-litigation management and avoidance, the make or buy decision (whether to use outside or in-house counsel), and selection of outside counsel. While obviously useful to the in-house attorney, these areas also provide the outside attorney with a direct view into the minds of general counsel at major corporations as to what they are looking for from their outside counsel.

Chapters 6-9 cover areas important to outside counsel, such as marketing to prospective corporate clients, as well as fee arrangements and engagement letters. Again, not only is this information useful to firms wishing to obtain corporate business, but in-house counsel can get an inside look at what is behind the marketing approaches of outside firms.

Also included is a chapter on convergence and partnering, which discusses a rejection of conventional procurement philosophy which encourages micromanagement and vigorous and constant competition between outside counsel for work, and a return to the model of a business retaining a few trusted legal counselors, each of whom possesses a strong familiarity with some part (or all) of the clients' business affairs.

In such a mutually committed partnership, quality and efficiency improve, and the ultimate result is better service at a lower price.

Chapters 10-15 cover such highly practical areas as planning, budgeting, evaluating legal risks, communication, billing, expenses and disbursements - from the inside and outside perspectives.

Chapters 15-23 cover topics such as the relationship between the legal department and the corporation, law department management, law firm staffing, legal research management, local and specialized outside counsel, and coordinating counsel. There are also chapters on such specialized areas as counsel for international legal work and representing European companies in U.S. litigation.

Sensitive areas. Volume 2 (Chapters 24-45) discusses such important areas as ethics and professionalism, conflicts of interest, use of contract lawyers, attorney-client privilege and work product issues, internal investigations, joint lobbying efforts and civil justice reform, as well as technology, management of corporate documents, and specialized approaches to outsourcing or insourcing legal work.

In particular, Chapter 31 explores the ethical questions that arise in relationships between corporate clients and their outside counsel, to which counsel should be sensitive throughout the partnering relationship. Authored by Lee Bearmon, former senior vice president, general counsel and secretary to Carlson Cos. Inc., and R. Scott Davies, shareholder (and president from 1992-97) of Briggs and Morgan, P.A., it provides an excellent summary of such sensitive issues as scope of engagement, supervision, difference of opinion, ultimate authority for decision making and confidentiality.

It also discusses such difficult issues as corporate crime or fraud, whistle-blowing and withdrawal of representation. It highlights important resources for resolving ethical issues, such as model rules and codes of professional conduct and professional responsibility, ABA Advisory Opinions and other resources.

Transactional approach. Volume 3 (Chapters 46-64) discusses transactional issues such as compliance, transactions, joint ventures, business valuation, securities, and commercial finance, as well as litigation topics such as pleadings and pretrial motions in complex commercial cases, discovery, expert witnesses, trial preparation, use of jury consultants, and alternative dispute resolution.

Special challenges. Volume 4 (Chapters 65-88) discusses settlement, appeals and high-profile litigation, as well as such specialized substantive areas as patents and trade secrets, copyright litigation, employment law, mass torts, environmental law and real estate law.

Of particular interest, Chapter 67, High Profile Litigation, deals with the unique characteristics and special challenges of the high- profile case, otherwise known as bet the company litigation. The authors are Christopher P. Bogart, executive vice president, general counsel and secretary of Time Warner, and Robert D. Joffee, presiding partner, Cravath, Swaine & Moore.

As the authors note, high-profile litigation requires an extra set of skills and dramatically more planning, coordination and collaboration between client and counsel. Litigation decisions can affect long-term business strategies and results. In a highly publicized case, each communication must be carefully planned and targeted to each of the company's diverse publics, which can include shareholders, investors, the media, customers, regulators, politicians and other specialized groups. Counsel must understand the differences among an on the record discussion, an off the record discussion and simply providing background.

Counsel must assume that everything filed in a high-profile case can and probably will be scrutinized by media and others. It is critical that outside counsel have experience working with public relations and investor relations staff, and that in-house and outside counsel work together to coordinate all communications regarding the case.

This chapter succinctly summarizes the unique issues and challenges high-profile litigation adds to the in-house counsel/ outside counsel partnering relationship.

Significantly, Volume 4 closes with six case studies that explore the policies and practices of leading American corporations. These include Du Pont's Legal Model for Strategic Partnering (Howard J. Rudge, Thomas L. Sager and Richard L. Horwitz); Federated's Acquisition of Broadway - Deal Making at High Speed (Dennis J. Broderick and Robert A. Profusek); Outsourcing of the Telcordia Legal Contract Function (N. Michael Grove and Jay G. Safer); ServiceMaster's National Litigation Program (Vernon T. Squires, Thomas E. Wilson, Donald L. Mrozek and Dan L. Boho); The Wal-Mart Approach to Litigation (Robert K. Rhoads, Ronald A. Williams, Jon B. Comstock and Ann Curry Cato); and Ford Motor Company - Changing the Law of Punitive Damages through Litigation (John M. Rintamaki and Theodore J. Boutrous Jr.). These case studies provide invaluable insight into the corporate perspective on the use of outside legal counsel.

Beyond insight

However, this treatise does not simply offer discussions of issues and insight into corporate goals. Throughout, it offers useful practice tips as well as forms that can be tailored to an attorney's specific needs, such as sample engagement and termination letters, a transaction or litigation plan and budget, an outside counsel evaluation form, sample bills, case evaluation forms - even a sample firm Web page.

There are 20 forms setting forth particular billing arrangements, such as blended rates, phased billing, per diem rates, unit pricing, success fees, etc. All of the forms not only are included in the loose-leaf treatise, but they are contained in four computer diskettes so they can be edited easily on a computer.

Overall, it is a highly practical tool.

C. Carey Deeley Jr. and Katherine D. Williams are attorneys in the litigation division of Venable, Baetjer and Howard, LLP, both resident in the Towson office.

Copyright 2001 Dolan Media Newswires
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