Selecting Outside Counsel – Get it Right the First Time
Over the course of a decade of in-house work, I’ve selected a lot of outside counsel. I’ve run detailed RFPs looking for the best firm at the best price, and made snap judgments when in a crisis. Regardless of how I got there, one of the tougher lessons I learned is that once you select your counsel for a project, it’s next to impossible to make a change. By the time you realize you made a mistake, you are often deep into the case or deal, don’t want to absorb the time and potential cost of a new firm getting up to speed, and may have impending deadlines that make a transition not feasible.
Swapping firms also signals to your adversaries that you aren’t at your best, and for in-house counsel, to your boss that you made a mistake the first time around. So while your choice in outside counsel is not irrevocable, you are best served by getting it right the first time around.
A full how-to guide on selecting counsel is beyond the scope of an article like this, but what I can do is share three tips I learned the hard way:
1. Don’t over-index to finding the perfect specialist. You should obviously select someone with baseline experience in whatever your need is, but the specialization of the legal profession has come at a cost. When someone has done the exact same thing a thousand times, their temptation is to make your work the thousand and first. Whether a specialist or not, make sure whoever you hire is willing to take the time to learn the nuances of your case and adjust their approach if needed.
2. Be a touch wary when an attorney is highly connected to the other side. If an attorney has experience with opposing counsel, the agency you are adverse to, or the counterparty in the deal, that is a major plus 99 times out of 100. Just make sure your attorney doesn’t seem to value those relationships too much. It’s not happened a lot, but I have been involved in situations where an attorney seemed as worried about preserving their relationship with the other side as anything. You want an attorney who is willing to burn every bridge if it means protecting your interests, don’t compromise on this.
3. Know who is doing your work. You don’t want to hire an attorney based on their proclaimed skills, only to find someone fresh out of law school billed 90% of the hours. In some of those cases I realized I should have just done the work myself. Pushing work to junior attorneys is not always a bad thing, especially if you are trying to save money, but you shouldn’t feel surprised by who is guiding your matter forward.
*If someone I worked with in the past is reading this, it’s very unlikely that any of the above is about you. These hard lessons were learned across a limited number of negative experiences.
**This blog is intended to provide a general summary of best practices and does not constitute legal advice. You should consult with counsel to determine the exact legal requirements in a given situation.