I previously wrote about the circumstances in which it makes sense strategically, financially or otherwise to involve local counsel. Here I want to draw on my experiences as an attorney who has frequently both hired and been hired as local counsel to offer some suggestions on ways you can be an outstanding local counsel.
One observation at the outset. Some lawyers or firms view the role of being local counsel to another “lead” lawyer or firm as less than desirable. They see it as somehow akin to being a second class citizen in the context of a lawsuit (or, I suppose, deal). While lawyers who have this attitude will usually swallow their pride and do the work, assuming they perceive the engagement as fiscally attractive, they never really put their hearts into it. I’ve had good fortune over the years with the firms I’ve hired as local counsel. And I hope my client firms have felt I brought value to our cases.
But I have sensed this kind of friction on occasion, particularly where my partners and I, as lead counsel, insist we do tasks that local counsel believe (perhaps accurately) that they would perform better and cheaper. This decision is usually based either on our financial arrangement with the client (a flat fee, for example) or because we perceive the client expects that we, as lead counsel, will do the work. There’s not much to say to local counsel in these circumstances beyond, I suppose, get over it.
With that piece of throat-clearing out of the way, here are some thoughts about what local counsel can do to set themselves apart and, in doing so, make future engagements more likely.
1. Put yourself in lead counsel’s shoes. Acting as local counsel is unique and calls for a kind of flexible, outside-the-box kind of thinking. Rather than “how would I handle this (situation, development, procedural requirement, etc.)?” the relevant question becomes “what does the client (i.e., lead) firm need to know in order to make an informed decision what to do under the circumstances.” This can be challenging because it may require a lawyer to suppress or ignore her own instincts about what to do, which sometimes conflicts with what the client/lead firm ultimately decides to do.
2. Don’t take much (or anything) for granted. Experience litigating in multiple venues may give us an idea how things are “generally done.” But some jurisdictions do things radically different. For example, the state courts in my home, California, have a very specific procedural scheme, particularly with respect to expert discovery. Out-of-state practitioners struggle to follow our rules of civil procedure because they are unique. Other states adopt procedures that seem to mirror the Federal Rules. The key for local counsel is not to assume your lead counsel knows what is required, even if your state court procedure is mostly on par with the Federal Rules.
3. What do you know about the judge? This is probably obvious, but one of the reasons to hire local counsel is for information and to have local connections. The best local counsel are active in their local bar association and/or Inns of Court. Excluding improper ex parte communications or other unethical influence, it is really helpful when the judge recognizes and respects our local counsel. Educating lead counsel about the judge is another area that is really helpful. You are our eyes and ears on the ground in the local venue.
4. What do you know about opposing counsel? Ditto from above. Even if not friendly or social, do you have–or can you develop–the kind of rapport with opposing counsel that will easily facilitate extension requests or other courtesies? Does opposing counsel have a pattern? Are they lazy until the last 90 days before trial? Do they always fight hard and then settle? Are they competent in front of a jury? Do they know the judge well? Even if you don’t know the answers to these questions, you should have the resources (i.e., connections within the local bar) to ferret them out.
5. What makes your venue potentially unique? This goes back to not assuming anything. The procedural routines you’ve dealt with your entire career may be completely unique and unfamiliar to your lead counsel. Think of this on both micro and macro levels.
6. Exponentially increase lead time. I’ll confess this has been a personal challenge, but you absolutely must think far in advance and let your lead counsel know about upcoming events and deadlines.
A perfect example is California’s summary judgment procedure. I cannot speak to how summary judgment motions are scheduled in other jurisdictions, but the California Code of Civil Procedure requires dispositive motions be heard 30 days before trial. The Code also requires 75 days notice (assuming personal service) of the motion (with additional notice if served by mail, overnight, etc.). While this seems easy to calculate, the rub comes with the clogged dockets of our virtually bankrupt state court system, which can make it all but impossible to ultimately schedule a hearing date within the necessary window if a party does not begin the scheduling process very early. There is authority which suggests the court’s docket, etc. cannot deny a party the right to bring a dispositive motion, but the practical impact of delay will include expensive additional, sometimes nail-biting procedures, like ex parte applications to have motions specially set the hearing and/or to reduce notice.
7. Communicate, communicate, communicate with lead counsel. And then make sure you communicate some more. Seriously.
8. Don’t friggin’ poach the client. The idea behind taking this work is not as an angle toward poaching the client away from lead counsel. If you see it otherwise, you’re not doing anyone, including yourself, any favors.
9. Do what you can to make lead counsel shine in the eyes of the client. When you’re hired by a general counsel, legal staff member or claims adjuster, it should be an important goal to make that person look good in the eyes of those to whom they answer, whether it is a board of directors, a more senior legal staff member or a claims superintendent. When you get a local counsel gig, make it a goal to make your lead counsel shine in the eyes of their client.
Because I am at the stage in my career where I am aggressively building my own practice, I take opportunities to act as local counsel for what they are–great opportunities to work for new clients and with different lawyers. There’s no reason you shouldn’t do the same.
Being lawyers, many of us suffer from the tendency to believe we can service all of our clients needs, whatever they are and wherever they take us. I think part of the reason is that, as professionals, we naturally like to control everything, and the thought of relinquishing any little bit of control causes anxiety. I suspect another reason has to do with a worry that other lawyers are direct competitors, even if their practices differ geographically or in terms of subject matter.
I hesitate to suggest that we’re worried the other lawyer will do a better job for our client (though they might), but it’s scary to think another firm, even if hired as a partner in a particular case or project, will take the opportunity to aggressively pursue our client, to take it/them away from us permanently.
Yet another concern could arise from a fear that, if we involve another professional and they do a less-than-stellar job or overcharge our client, or both, it will reflect poorly on us. It surely will, on some level, at least if we are involved in selecting and/or hiring the associated professional.
On a purely rational level, we know these concerns shouldn’t prevent us from doing what’s best for our clients. If that means hiring a tax specialist because a deal or case raises issues outside our skill set, it’s generally a no-brainer decision. Similarly, if I’m a litigator licensed only in California and I’m handling a case in, say, Nevada, which requires the involvement of a lawyer who is both licensed and venued in Nevada, even if I am admitted pro hac vice, I won’t let my poaching fears prevent me from doing the right thing.
But what about a borderline case. For example, I most often practice in the Los Angeles area. I know the courts, the procedures and many of the judges in LA, Orange County, Ventura, Santa Barbara (because I actually live in SB), Riverside and San Bernardino. If I am assigned to handle a case in Bakersfield, or Fresno, or even San Diego, should I be thinking about hiring local counsel in those venues?
I want to suggest the answer is yes, I should at least think about whether it makes sense to involve a local counsel in any case that I’m planning to handle that is as far away as Bakersfield is from LA, even if, after I think about it, I conclude it is unnecessary. In other words, it is an issue that should be spotted and resolved just like any other.
I recognize this doesn’t really advance the ball, because it doesn’t provide any guidance when one should, not only consider hiring a local lawyer, but actually do it. Here are some thoughts on this bigger question.
1. Hire local counsel when you have reason to believe you will be “home-towned.” What does this mean? I see “home-towned” as any instance in which your client could suffer prejudice from the fact you are foreign to the jurisdiction. This is not always readily apparent, and could require some impression gathering from colleagues or acquaintances. I’ve long heard, for example, that judges and juries in San Diego do not receive Los Angeles lawyers well. I could speculate forever on the genesis of this (assuming it is true), but I’ve heard it over and over.
Now, this does not mean I think it’s necessary to hire a local San Diego lawyer or firm every time I have a case pending there. Rather, it is more likely that I would only hire someone local if my case was clearly headed to trial, or if there was some unusual issue that made me think my client would benefit at all from having someone local there with or instead of me. The possible scenarios are endless. It’s a judgment call.
2. Hire local counsel when you’re in a venue that has strange or unfamiliar procedural rules. In California, we are required to comply with the California Code of Civil Procedure, the California Rules of Court, the Local Rules of the county and, often, the judge’s own rules. And we hope none of these conflict. Sometimes we encounter a county or judge with some bizarro rules about how things must be filed or served, or both. I can tell you there is nothing more comforting than being able to pick up the phone and talk to someone who regularly appears in the particular court, before the particular judge.
3. Hire local counsel when it’s otherwise a good idea and you can hire someone whom your judge knows and respects. This can be particularly important if your opposition knows the judge well.
4. Hire local counsel when you expect the entire jury will speak with an accent you don’t have. I’ll admit to occasionally having Southern Drawl Envy. You know what I mean if you’ve ever had to speak at a conference and follow some smooth-talking storyteller from South Carolina or Georgia or someplace. It can be humbling to realize how utterly ordinary we sound.
5. Hire local counsel when there’s a reason to think some past event or news will cause your client to suffer geographical prejudice. Did your client just shutter a factory in the town where you’re about to start trial, putting hundreds or thousands out of work? You’re going to need to deal with that, and a local perspective will be valuable.
One final word. The verb “hire” as used here doesn’t mean your client needs to break the bank with yet another full-time billing machine. Often, it will suffice to have the local counsel merely available for consultation purposes, or to help pick the jury, or participate in a particular hearing. The additional investment should be minimal and could pay dividends.