How Outside Counsel Can Support The In-House Legal Team

  • Chris Colvin is a partner at Eaton & Van Winkle with over twenty years of experience in intellectual property law and commercial litigation. Chris is also the founder of In The House (www.inthehouse.org), the world’s fastest-growing private network for in-house counsel, which currently has 23,000 members worldwide.  In this Q&A, Chris discusses the purpose of In The House and how law firms and in-house counsel can work together more efficiently.

    Q: You are a partner at a major law firm that provides outside counsel services. What inspired you to form an organization devoted to meeting the needs of in-house counsel?

    A: Over the course of my legal career, I have often observed that my clients and other in-house attorneys have relatively few opportunities to network with fellow in-house counsel, and that there is a scarcity of media, casual networking events, educational and career development materials and programs specifically directed to, and genuinely tailored for, in-house counsel.  So I brought together a world-class professional management team with well over 100 years of experience in legal technology, events and media, and we created this organization with the mission of helping in-house counsel to access the relationships, tools and information they need to have long and successful careers as in-house attorneys.

    Last summer, we surveyed hundreds of in-house counsel and held focus groups with dozens of in-house attorneys at all levels, from Fortune 500 GCs to first-year lawyers, and asked them what networking opportunities, materials and programs they needed and wanted to succeed in their careers.  We then set about building a platform to deliver what our community has asked for.

    The bottom line for me is that the in-house counsel community represents a unique profession that is distinct from outside counsel, and has unique professional needs and demands.  In-house counsel are really hybrids of lawyers and business people.  They operate every day at the intersection of law and business, which creates special demands and calls for special skills, most of which are rarely taught in law school, or at law firms for that matter.  

    Perhaps the best way to develop those skills is to have a robust network of in-house peers, upon whom one can call for advice, support, and practical information, and providing those opportunities in a seamless way is a big part of our mission at In The House.

    Q: In your view, what is the sort of relationship that ought to exist between in-house counsel and the outside law firm?

    A: As I have progressed in my career, I have found it increasingly important to view every legal matter from my client’s perspective — and when I say client, I really mean both the company I am representing, as well as the individual in-house counsel I engage with on a daily basis.

    I call it the “triple win”.  First, as a lawyer, of course I want to win in the conventional legal sense, for example by prevailing in a litigation, by obtaining strong protection for my client’s intellectual property, or by negotiating the best deal I can for my client.  Second, I want the client’s company to win in business terms, by getting great value for their legal spend and by serving a larger corporate business objective.  Third, I want my client contact to win in a very personal sense, by looking like a hero to his or her management, whether that is the General Counsel, the CEO or the Board of Directors.  I want to check all 3 boxes in every legal matter I handle: “win-win-win”.

    Q: A recent Georgetown University study showed a steady decline in the key economic performance numbers for law firms across the board, and likened the landscape to the fall of Kodak, where a company did not make the necessary adjustments in a new economic environment. What do you believe are the key things law firms must do to adapt?

    A: That’s a very big question and of course I can’t provide a one-size-fits-all prescription for all law firms to fix what might be ailing them.  However, I do think there are certain areas where a number of law firms tend to fall short and need to be more open minded.

    For example, I think the notion that the in-house attorney assigns a legal project and the outside counsel unilaterally executes the project, soup to nuts, then delivers the results at the end of the project, is a dated concept in our day and age.

    Rather, I encourage forward-thinking law firms to consider themselves as one of several players on the client’s team.  Another key player is, of course, the in-house counsel they are working with, who increasingly might play the role of “quarterback” in mission-critical legal matters.  The in-house lawyer is really the expert when it comes to the client’s business, both its products and services vis-à-vis the outside world, and its internal corporate politics, culture and priorities.  So, when it comes time to gather company information relevant to the project, it often makes a lot of sense for the in-house attorney to take a very active role, and often a lead role, in that process.

    For example, whenever possible, I like to have in-house counsel actively involved in witness preparation for both deposition and trial, as well as document collection and e-discovery.  Not only do they know how to navigate the internal structure of the company, but involving them actively in this process also gets the client really “on board” and engaged in what is often a very important case for their company.  In this way, my clients are just as much my “partners” as my actual law partners are.  A very literal aspect of this is I often like to do deposition preps in conference rooms at my client’s offices.  This is often more convenient for the witnesses, and it enables the in-house legal team to drop in and say hello, provide support, etc.

    Non-law firm vendors such as e-discovery companies, insurance companies, consulting companies, court reporters and others also can be important partners in achieving success in a particular matter – and in helping to deliver results more efficiently.  So I try to have great relationships with those vendors as well.  And increasingly, my larger clients like to have a direct relationship with those types of outside vendors, a trend that I embrace because, again, I really enjoy having clients who are strongly engaged in the legal process and I think in-house counsel have a wealth of both substantive expertise and corporate knowledge which can be very helpful in generating that “triple win” I referred to before.

    In other words, I urge outside counsel not to think about themselves as the center of the legal universe, and instead think about their clients as the center of the legal universe.  After all, our clients are collectively the “buy side” of the $400 billion legal industry and, ultimately, it’s fair to say that we all owe our jobs and careers to the in-house counsel community and to our clients specifically.

    Q: What is your advice to outside counsel who feel a tension between generating enough billable hours to succeed financially, and being flexible and efficient enough to satisfy clients who might be feeling pressure to cut, or at least hold down, legal spend at their companies?

    A: I think that individual outside attorneys need to use their own common sense and their own relationships with in-house counsel to ensure themselves that, regardless of the complexity of the issues they are dealing with, the hours they are billing are justified by the bottom-line results being sought in a particular legal matter, as well as the significance of the legal matter within the larger universe of the client’s business objectives.

    When I was a first year lawyer, I got some sage advice from a seasoned litigator, who said “always pretend you are the only lawyer on the case”.  I took that to mean that I should, to the best of my ability, try to fully understand the entire legal project, regardless of its complexity and regardless of my junior role at that time, and try to truly visualize how the work I was doing was going to contribute to the success of the project as whole.  

    Updating that advice after twenty years of legal practice, I like to take my mentor’s advice one step further:  imagine that you are the GC at the conclusion of the project, justifying to the CEO the overall cost of the project, taking into account outside attorney hours, disbursements, as well as the internal resources expended (e.g. employee time spent collecting relevant documents, giving testimony, etc.)  in view of the actual bottom-line business result obtained.  

    As much as possible, I try to step into the shoes of my client – and by the way having the type of active partnership between in-house counsel and outside counsel, as I described before, makes it a whole lot easier to step into their shoes.  You are working so closely together, you’re almost there already.

    Q: The Georgetown University study suggested that law firms make operational changes, including altering the billable-hour paradigm, as a way of staying competitive. Do you believe that this is the way to go, or is it better to emphasize the relationship and customer service approach as opposed to operational changes?

    A: With due respect to the authors of that study, I don’t think there are any magic pills to deal with the changes ongoing in the legal industry.  And I don’t think we are witnessing the death of the billable hour for all purposes.  Rather, the service delivery methods and billing approaches need to mirror the client’s business priorities and budgetary constraints.

    In a bet the company litigation, or a critical M&A deal, the billable hour is likely to remain justified in many cases.  In other cases, fixed fees or success fees or capped or blended fees will make more sense.  The common theme is flexibility — law firms need to be more agile and responsive to their clients, or their more fleet-footed competitors will become increasingly attractive alternatives.

    Q: You’ve devoted a lot of time and resources to strengthening the relationships between in-house and outside counsel. What are the most positive changes you’ve seen in recent years and what still needs the most work?

    A: This is a great question because it seems like so much coverage of the changes in the legal industry has been of the “sky is falling” variety.  I don’t want to diminish the major challenges our industry is facing, and I feel for the many unemployed and underemployed attorneys, especially since the last recession.  However, in the long term I am bullish about the changes in our industry, and I think they can make the practice of law a more interesting and dynamic profession.

    For example, technology increasingly will displace some of the more mundane (and frankly boring) tasks (document review, drafting of form contracts, basic legal research) traditionally done by junior attorneys.  While this may cut into billable hours, these technologies will free up lawyers to engage in the far more interesting, creative and rewarding tasks of applying judgment and experience to challenging legal issues and crafting strong and persuasive arguments on our clients’ behalf.

    I also think that the project management or “quarterback” role for major legal projects will, in many cases, move from outside counsel to in-house counsel.  This may feel threatening to some law partners, and bruise some egos, but let’s face facts — the in-house counsel represent the “buy side” of our industry and they are our ultimate bosses.  It is their prerogative to manage legal projects and budgets to ensure that their company’s interests, strategic needs and budgetary constraints are being met.  And project management is one thing that corporations often do extraordinarily well, so it will often make perfect sense for the in-house client to take the dominant role in project management.

    Taking the long view, in-house counsel — especially at larger companies — may increasingly see law firms as one of numerous vendors to legal departments, the other vendors being, for example, technology companies, consulting companies, and alternative legal service providers.  Looking at this development in a positive light, outside counsel should feel empowered by getting the opportunity to focus on what they do best and by feeling like their in-house counterparts are fully engaged “partners” in legal projects.

    At the end of the day, we need to be on our client’s team, and they need to be on our team.  Working hard together and achieving great results in partnership with in-house counsel – these are the moments that have provided me – and I hope my in-house colleagues – with the most satisfaction in my career.  I think the way the industry is evolving will actually give in-house and outside counsel more opportunities to roll up their sleeves and work together side-by-side.  And I see that as a very good development.

    Chris Colvin has more than twenty years of experience handling all types of intellectual property and commercial litigation matters, including numerous patent, copyright, trademark, trade secret and false advertising disputes, complex licensing transactions and major patent and trademark prosecution matters.  Prior to joining Eaton & Van Winkle, Mr. Colvin was a partner in the boutique Colvin IP law firm and a partner in the Am Law 100 firm of Kramer Levin Naftalis & Frankel.

    Mr. Colvin can be reached at ccolvin@evw.com or (646) 790-2987.