In Legal as in Other Business Functions: Match the People You Assign to the Task at Hand (Part II of III)

Part II

Match the attorney you pick to the decision-maker you face if a court, regulator, or prosecutor with a distinctive viewpoint will be driving the legal outcome.

An iconic statue of Lady Justice adorns many courthouses.

Don’t take her blindfold too literally.

For instance, a lawyer who practices in Chicago should think twice before taking a case before a circuit court in downstate Illinois. Here the distinctive viewpoint consists of favoring those attorneys who are members of the local legal community — and disfavoring strangers. It’s not universal — but it’s widespread and very real when you run into it.

It’s called getting “home-towned”.

A distinctive viewpoint can go beyond locality to take the form of “the way that this regulatory agency does things” — or “the way that this prosecutor’s office approaches a criminal charge”.

Beyond this, decision-makers like judges or bureaucrats often have their own individual idiosyncrasies in the way that they approach their work.

So when some distinctive viewpoint might cause Lady Justice’s blindfold to slip you should consider a lawyer who’s privy to the secret handshakes, inside baseball, and other esoterica involved. 

Example: Getting into the mind of the relevant regulatory agency.

I once was asked to advise on the medical qualifications of an airline pilot.

On the level of legal doctrine I knew exactly where to find the “answer”: Title 14, Subchapter D of the Code of Federal Regulations governs “acceptable evidence of physical fitness” for airline pilots. More generally, there were extensive judicial opinions and records of administrative proceedings relating to specific pilots on the subject of their medical qualifications.

But grasp of legal doctrine and the findings of past administrative proceedings were only a start. My client — and soon the Federal Aviation Administration (FAA) — would be considering the sensitive question of this pilot’s health qualifications to fly scores of souls on an airliner (“souls” being the sobering term that airline pilots use to refer to passengers in logbooks).

What the client needed from legal counsel was a subjective understanding of the human beings at the FAA who would pass judgment on this case. Given what was at stake I thought that the client needed to know: How exactly does someone inside the FAA view the legal question about this medical certificate?

So I found a lawyer in private practice who had worked for years as an assistant chief counsel for that agency. Someone steeped in the legal doctrine and administrative proceedings to be sure — but someone who also knew how the FAA’s decision-makers were likely to apply them to this situation. She’d been in that decision-making role herself and knew firsthand the distinctive viewpoint that her former colleagues would bring to the client’s situation.

What I said in Part I applies to matching the attorney you pick to the decision-maker that you face in the legal system: This is about individual lawyers and not about law firms.

Going beyond legal doctrine and administrative proceedings (or judicial opinions … or other formal legal authority) to apply one’s knowledge of inside baseball, secret handshakes, or other esoterica calls for judgment. And good judgment is pretty much an individual — not a collective — trait.

Example: If your business has a bet-the-company case before the U.S. Supreme Court then you need to find appellate counsel who can take you beyond formal knowledge to a true insider’s grasp of which arguments will fly — and which won’t — before that high tribunal.

To name (a few) names. You need Carter Phillips, Maureen Mahoney, or Paul Clement. Each practices in a large and prominent law firm (Sidley Austin LLP, Latham & Watkins LLP, and Kirkland & Ellis LLP, respectively) — but it’s their individual background and skills that commend them to your company’s attention.

See Part I (“Where there’s a lot at stake in the matter at hand it’s usually best to begin with “Who’s the right lawyer?” — Not: “What’s the best law firm?”) and Part III (“For routine, repetitive, or high-volume legal or regulatory compliance tasks, consider a service provider who brings the right processes — and perhaps technology — to your company’s needs”) — of this series.