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.