Much earlier in my career as an “outhouse” lawyer (i.e., one who works at an outside law firm, servicing corporate clients), the prevalent view among my newbie colleagues was that being the member of an in-house corporate legal staff would be a dramatic “lifestyle” change. By this we meant that one chose the in-house route to trade the higher pay (if only slightly) and chance at partnership for reasonable working hours and no pressure to measure one’s life in billable hours or cultivate client relationships.

It only took about a year before I came to understand the absolute fallacy of this view. At least the reasonable working hours part. I’m sure there are a few of those cushy in-house jobs out there, but the in-house lawyers I’ve known and reported to work as hard, often harder, than I’ve ever worked. And while outside lawyers face pressures to bill hours and attract and keep clients, our in-house counterparts can face equal or greater, albeit different, pressures.

Depending on the industry and corporate culture, our in-house counterparts have responsibilities we don’t see but exist nonetheless. There’s pressure from management that often do not understand or appreciate the value lawyers bring to deals and cases. There’s also pressure to procure and supervise the best possible legal representation, while controlling continually rising legal costs. Finally, in-house legal staff members face the same pressure we all face to manage and balance a myriad of responsibilities within the time constraints of a (hopefully) normal workday.

So enlightened, I’ve come to see how the most valuable outside lawyers are often those who sympathize with these pressures and try to make life easier for the in-house clients to whom they report. Sure, there are “bet-the-company” and unique white-collar trial lawyers who are hired for their prized trial skills and fantastic record, or highly specialized tax or real estate investment trust experts who bring rare knowledge to the table. These will always be in demand. But, like it or not, most of the rest of us are replaceable commodities. I consider myself an excellent lawyer, but I practice in a city with thousands of excellent lawyers, many of whom have the same knowledge and skills I possess. So what sets me apart?

Well, I try to recognize the challenges my in-house counterparts face and take steps to make their lives easier. This is not always easy or even possible. Cases can spiral out of control. Lawsuits sometimes expose the frailties of a company or weaknesses of their policies–not to mention mistakes or other transgressions of management or individual employees. When this happens, my in-house counterpart becomes the dreaded messenger of bad news, unappreciated or worse.

One of the best ways I’ve found to make a client’s life easier is to take steps to improve our communications and information exchange. I do this by trying to shift my perspective, so that I attempt to view the situation and our communications less from my own point of view and more through my client’s eyes. This can be a transformative exercise, and it only takes small changes to make a big difference. Here are three examples of what I mean:

1. I try to improve the frequency of my reporting on the progress of a case, even when very little is going on. The importance of frequent client reporting of events becomes clear when I shift my perspective and consider the ominous void or “sound of silence” that occurs when months pass without any kind of update.  Remember most in-house lawyers report to someone up the food chain; they do not look so good if asked about the status of a case and they cannot provide anything beyond a stale update you provided several months back. Making my in-house counterpart look good to her superiors when they ask what’s going on with a particular case makes her life meaningfully easier.

2. When I do report on an event, I also try to anticipate questions my client will ask and tailor the report accordingly. I think: what questions would I have if I was on the receiving end of this update, and I try to answer those. I’ll readily admit that I rarely anticipate every question, but I try.

3. The narrative we provide on billing invoices is also really important. We may find it lamentable that the days of lawyers billing simply “for services rendered” are long gone, but the reality is that clients look hard, not only at the time and amount we bill for a task, but also how we describe what we did. I’ve always tried to imagine myself on the receiving end of the bill. Would the time and narrative make sense to me? Would it seem reasonable? One suggestion I got from a colleague a while back was that invoices should be written so they show the progression of the case, like a report. I’m not sure if this is realistic, but I do think it makes sense to think about billing descriptions from the perspective of my client and I try to do this as much as possible.

These may seem like minor changes, but that’s the point. If we change, even if only slightly, our perspective, and try to experience the situation and our communications through our client’s eyes, we might be able to make their lives easier. Is there a better holiday gift? Ok, chocolate maybe.

Don’t worry–I’m not going to name names. Actually, I’ve been fortunate and personally had only limited personal experience with clients who should be considered “unworthy.” But I know they’re out there. Although inability (or lack of genuine intention) to pay fees can be one major characteristic of the unworthy client (pro bono representations excluded), it isn’t the only characteristic.

J. Foonberg, in his How to Start and Build A Law Practice (1976), put together a pretty decent list of the kind of clients that can be trouble. Here are a few he suggests you avoid:

1. A client hiring you as the third lawyer on any case.

2. Clients “who proclaim loudly that you can have all the money recovered–they’re only interested in the principle.”

3. Clients who want to use your telephone, assistant and office space to conduct their business.

4. Clients who ask for a loan of money against their case.

If you pass on these clients, you’re passing up on some business–but you might be avoiding some expensive headaches, as well. In fairness to all of the unworthy clients out there, I suggest there are an equal or even far greater number of unworthy lawyers. Perhaps I’ll explore this concept in another post.

Legal blogging rock star and client service guru Dan Hull recently recommended an interesting book, Lawyering: A Realistic Approach to Legal Practice, by James C. Freund. Trusting Dan’s judgment, I promptly ordered up a dog-eared copy of the tome from AbeBooks.

Turning first to the chapter entitled “Handling Clients,” I found some interesting and sage advice right away. Freund asks what do you do when a client calls and wants to be counseled whether her company can legally do something. In the simplest terms, if a client asks you the sum of 2 + 2, do you automatically say 4? Or should we be concerned with what the client wants to hear? Would she prefer to hear 5?

Recognizing this sounds like ethical blasphemy, Freund rushes to explain himself:

“Now before you round up a posse to haul me before the bar association, let me hasten to add that the reason for desiring this knowledge is not . . . that it can or should affect the substance of your answer or reaction, where a legal issue or some other objective manifestation of your views is concerned. You’re not worth your salt as a lawyer if you provide phony answers to please a client. You have to call ’em as you see ’em, no matter what the consequences: it may be painful at the time, but in the long run your client will respect you for this and value your advice all the more.

On the other hand, knowing how the client wants to come out can be very important to you in deciding on the manner in which you reply–the style, as contrasted with the substance–and on shaping any practical advice you might offer.” (151-152)

Freund offers a couple of good illustrations, hypos if you will, to make his point. In the first, you are called by a client CEO who immediately announces you are on speaker phone and in the room with him is an “Employee.” CEO wants to know whether the company can issue the Employee shares of stock which the Employee will pay for with promissory notes.

While the law either allows or doesn’t allow the company to issue shares to an Employee to be paid for with promissory notes (I have no friggin’ clue), Freund points out that “the way that you handle the question can be influenced significantly by whether . . . (CEO) actually wants to issue . . . (Employee) some stock for notes, or whether . . . (he)’s just going through a charade–using you as a whipping boy–for the benefit of . . . (Employee).” (152)

What do you do? Freund suggests you try to ascertain what client CEO really wants to hear before you begin providing advice (assuming, unlike me, you could answer this query on the fly). Freund concedes it may not be easy to determine CEO’s angle:

“By the way, ascertaining . . . (CEO)’s real interest here may not be so easy–and tomorrow, you should let him know what an uncomfortable position he put you in, with a warning against future repetitions. For openers, don’t answer right away. Get . . . (CEO) talking; he’s likely to drop a clue (such as, ‘I told (Employee) this was a very difficult thing for a public company to do . . .’), which you can then pick up on.” (152)

Another way to get an idea what the client is looking for is to “test the water. Say: ‘And what did you tell him when he made that suggestion?’ The client’s reply should give you a fair indication of the direction in which he’s heading.” (153)

But why do you want to know? Again, it’s not about conjuring a phony answer, but about subtly strengthening your relationship with the client and bringing greater value. For example:

“If you determine that  . . . (CEO) isn’t really interested in issuing the stock, you can emphasize the legal difficulties which do exist under the applicable state law when you use notes to pay for par value shares–to say nothing of the unfriendly scrutiny such a transaction would receive from stockholders, other employees, and so on. All of this is good, sound counsel; you’re not deceiving anyone . . . On the other hand, if you sense that . . . (CEO) very much wants to issue the shares, then your litany of difficulties would be somewhat more muted, with a smooth transition into a constructive analysis of how the transaction can be accomplished–by securing the note, charging bona fide interest, and so on.” (152)

Again, as Freund says, the object of this preliminary fact-finding isn’t to cause you to change the substance of your advice to match the client’s desires, but instead to influence how you present the advice. The closer we get to the justifiably coveted status of “trusted advisor,” the more these subtleties matter. We’re not legal research “machines,” hired to churn out one-dimensional answers to legal questions without regard to how our advice impacts the client. Our role is not just to protect, but to advance the client’s interests, and the route to this goal is not always obvious or easy.

Colleagues criticize me because, when pitching to handle a case, I don’t “sell myself” enough.  It’s not just that I don’t sell my own experience or skills well enough, but also that I sometimes don’t paint an overly optimistic picture of the case.  What it’s going to cost.  How we’re virtually guaranteed a great outcome.

These may be valid criticisms, but I’ve always preferred the notion of being conservative about the expected outcome of a case.  I also never want to be accused, at the end of a case, of having misrepresented what it will likely cost to get the desired result.  I’ll admit such honesty has probably cost me business.

It turns out, though, that such honesty may be the very best thing when vying for the role of the trusted advisor.  At a recent conference, I learned that, based on comments gathered from general counsel at major corporations, the perception that an outside lawyer was being honest, potentially against his/her own interests, was actually a relationship “accelerator.”

So, when do opportunities arise for outside counsel to “accelerate” their client relationship through honesty at any cost?  Here are just a few:

1.  “I might not be the best lawyer for this particular case (or deal),” and I know that means you may not hire me.

2.  “I want to make sure you have a realistic idea what this is going to cost,” even though you might decide then not to sue or to settle instead.

3. “Your chances of winning are probably not going to improve by doing this additional discovery,” even though a scorched earth approach is vastly more profitable for me.

In addition to sleeping better at night, an incidental benefit of this kind of honesty is that, while I might not be the perfect lawyer for this particular case, or you decide not to sue this time, I know you are going to trust my judgment.  That’s really what I want, to be the trusted advisor, so you’ll think of me next time, and the time after that.

Certainly the biggest challenge for me, as an outside or, if you prefer, “outhouse,” lawyer representing private clients is keeping up my client development efforts, even when I’m absolutely slammed in the actual practice of law.  I know I’m not alone and this challenge is hard for just about everybody on the outside.

I sometimes envy people with client-development or sales-type jobs that allow (or force) them to focus exclusively on selling.  Unlike a pharmaceutical representative or residential realtor, lawyers have to constantly balance the substantive side of the job (conducting discovery, writing and arguing motions, preparing for trial) with the sales side (writing, speaking, meeting, etc.).  When push comes to shove, at least for me, the sales side usually takes a back seat to the demands of the practice.  This isn’t surprising: clients hire trial lawyers to litigate cases, not to spend their time finding new clients and more cases.  Also, lawyers aren’t typically sued for malpractice for neglecting their marketing responsibilities and focusing instead on winning the case.  On the other hand, without a pipeline of new work, we find ourselves languishing, dead in the water, when a busy case resolves.

In a perfect world, I would use others to appropriately leverage both sides of my job.  I would have associates and paralegals available to leverage for performing practice-related tasks they are equally, if not better, suited to do.  But then I would also have someone, even a part-time employee who could help make sure I keep up with my marketing and networking responsibilities, scheduling meetings, arranging for articles and speaking opportunities.

Alas, it’s not a perfect world, yet.  Until then, I’ve got to keep struggling not to neglect my marketing efforts when, as in the past few weeks, I’ve been extremely busy with a particular case.  I recently spoke with my business development coach about this challenge.  His suggestion, loosely paraphrased, was that I shift my orientation away from being a legal “practitioner” to being a legal “business developer.”  I should understand as my primary job, not to win cases or achieve favorable settlements, but rather to generate more business.  I’m not sure I understand or completely agree with this view.  But thinking about the issue has helped me develop some  simple strategies designed to help me maintain the law practice/business development balance, even when things get hectic.  Here they are:

1.  Schedule, schedule, schedule.  Like many litigators, I live my life out of a calendar.  I’ve found that, provided I get a coffee, lunch or dinner date on my calendar, I have little trouble scheduling around this appointment.  The takeaway:  get something on the calendar, even if it has to be rescheduled later.

2.  Combine case-related travel with visits to existing or prospective clients.  The most successful practitioners I’ve known make it a habit to visit existing and prospective clients face-to-face whenever they are “in town” for another reason.

3.  Calendar follow-up steps.  For every 5 appointments I schedule for coffee or lunch, at least 3 cancel or reschedule.  I have a bad habit when someone cancels at the last-minute of failing to follow through immediately to get a new date on calendar.  The result is a long, long delay and starting from scratch on the rescheduling.  I’m trying now to follow-up right away when someone cancels to get a new appoint on our calendars, even if that, too, eventually must be rescheduled.  Ideally, no meeting will be left behind.

4.  Do business development before anything else.  This is one my biz dev coach really likes.  He suggests I spend between 5 and 30 minutes each morning on client development before doing anything case-related.  I’ve tried to adopt this, but it’s challenging given the unpredictability of a litigation practice.

Hopefully, these 4 strategies will help me stay out of my shell and not find myself dead in the water whenever a particularly time-consuming case resolves.