United States: Playing Together Nicely

Last week we attended our law firm's partner retreat. In between circuits on the lazy river, there was talk of synergies, branding, cross-selling, diversity, technology, and, mostly, collaboration. You know – the usual stuff. That last point, collaboration, is really the predicate for all of the others. Collaboration today has a positive connotation of people working together to achieve a desirable result. Collaboration came into the room with a much uglier aroma during the Second World War, of course. See the 1969 film, The Sorrow and the Pity, for more on that sad story. The nasty words today are collusion and conspiracy. One is a specific criminal offense, while the other is mere invective. But enough said about politics and criminal law. In any event, a retreat is a perfectly fine place to discuss collaboration. It is an opportunity for colleagues from all over the map to converge in a convivial setting to get to know each other, trust each other, respect each other, and commit to work more closely with each other. Luckily for us, as huge and global as our firm is, we do collaboration exceedingly well. In fact, the very last thing that happened at the retreat was that a conference room of alpha lawyers punched into our phones real-time, word-one descriptions of the firm. The results were instantaneously collected to create a word cloud. Do you know what word ended up front and center and in the biggest font? Collaboration. So, yay.

Around the banquet table and around the pool there was a lot of talk about collaboration. Law is a team sport. It is much more like football or basketball than golf or tennis. And yet, there is a lot of golf and tennis played at retreats, and no basketball or football. A paradox? Not really. Even our golf and tennis games typically involve two-person teams – sort of like trial teams in the courtroom. Collaboration is by no means limited to the partnership, even if the term partnership is peculiarly evocative of collaboration. Tomorrow's partners are today's associates and counsel. Unless we develop their talents and permit them to flourish, the law partnership's institutional survival is a frail thing. When we were laboring in our mid-associate years, there was a partner who was especially supportive. He was generous with advice and generous with praise. He used to say, "I need you to succeed, because you'll be paying my pension someday." That was back in the days of defined benefit plans, which hardly exist anymore. Nowadays, in the you're-on-your-own economy, we save up for our own retirements, so institutional survival perhaps does not seem as vital as it once was. Surely, there is a cost to that transformation. But forget about retirement – every law firm exists on a razor's edge of intellectual supply and demand. What Samuel Goldwyn said about movie studios is also true for law firms: it's scary to think that the assets go home every night. Without constant renewal from young lawyers who bring competence, commitment, and creativity, a law firm won't live to see the next quarter. Further, the people who do so many of the things that keep the operations humming are the non-lawyers. They are just as important and professional as the folks with J.D.s. They often have the most to say about whether we will have a good or bad day. And if we want to have an in-depth debate about whether the latest Star Wars movie made sense, we are far more likely to check in with some of our friends in IT than with other Life Sciences lawyers. The constant collaboration animating our firm makes us better at what we do and happier about our lives.

So far we have been talking about internal collaboration. But it is more and more the case that mass tort lawsuits force firms to collaborate with others to mount vigorous and effective defenses of their clients. Sometimes one client will assemble a virtual law firm, doling out different tasks to different firms. (Pity the firm charged with responsibility for overseeing electronically stored information. Talk about no-win propositions!) Sometimes codefendants need to align to thwart the predations of plaintiffs who seek to exploit potential fissures and induce the defendants to point fingers at each other, thereby doing much of the plaintiffs' work for them. Again, we count ourselves lucky to work in a firm that enjoys both the reputation and reality of playing nicely in the sandbox with others. Sharp elbows simply aren't a part of our culture. There is no reason to horn in on others' work, and certainly no reason to trash the effort of colleagues, even when they are competitors in the marketplace. For one, that sort of backbiting does not work. Clients hate it. It reminds us of how our elementary school teachers used to tell us that they could see everything that happens in the classroom, every passed note, spitball, and droopy eyelid. Naturally we doubted that at the time. But then 20 years later we became a high school teacher and – what do you know – it was totally true that everything in the classroom was laid out in front of us with deep focus and clarity. It's the same with clients. They see how their law firms cooperate or collide. They hear every snide complaint, and it drives them crazy. We once knew of two partners who would call the client to complain, not only about how other firms were allegedly shirking their responsibilities, but also about how much better they were than their 'partners' at the same firm. Nice. Guess what the client did? She called up another partner at the firm and asked why he bothered to work with partners who were so insecure and disruptive, and also asked why the client should continue to employ a firm that brought too much chaos to the party. Good questions.

One of our colleagues at the retreat told us about a trial last year that ended in a hung jury. The result ended up not being so bad, as it was followed by a favorable settlement not long afterwards. But our co-counsel saw the result as a cue to second-guess several trial decisions, such as doing a short opening statement, deciding not to call an expert witness they had worked up, and deploying 'only' 37 slides in the closing. We know it was bad form for the other law firm to engage in such self-indulgent revisionism, but even beyond that, knowing nothing about the case, we suspect that the criticisms were unfounded. As we mentioned in our post two weeks ago about our recent jury duty, we harbor deep doubts that overlong presentations with superabundant graphics are the best way to pierce a jury's confusion and indifference. The older we get, the more convinced we are that simpler and shorter are better. (We'd dance a jig if depositions were shortened from seven hours to five, if opening statements were capped at 30 minutes and closings at an hour, and if legal briefs were limited to 20 pages. But we digress.) And then we heard that the hypercritical colleague from another firm espoused more "fulsome" presentations. That did it. Now arose our antediluvian, pedantic hatred for the use of "fulsome" as a faux benign synonym for "full" or "complete," when it really means "excessively flattering." By "really means" we mean that "fulsome" should be confined to its proper 1663 denotation. Do not fight us on this one. Consult the OED or Fowler's. Garner is mostly on our side here, though he calls "fulsome" a "skunked term" because the loose sense is now so common. We don't like skunks. The philistine encroachments of the latter part of the last century and the early jabberings of this one do not persuade us. Hmmm. Perhaps there are limits to our own ability to collaborate. And please do not get us started on the current fashion of beginning almost every answer with the word "So," no matter how nonsensical.

By the way, while we are talking about collaboration among law firms, we ought to acknowledge that this blog has always been a collaborative effort among lawyers from different, often competing, law firms. It is possible that this fact makes the Drug and Device Law blog unique among Big Law blogs.

Just before we left for the retreat, we got a call from a client who asked us to parachute in and do a product liability trial for them. There was a catch. The case had been worked up by another firm, discovery was closing in a week, and the other firm would file all the summary judgment papers and handle the experts. All we would do is work up motions in limine, prepare for trial, and then do our parts of the trial. Was that okay? Ha! – that wasn't just okay, that sounded splendid. We couldn't stop ourselves from telling the client that it sounded like just about the most perfect assignment we could ever get. We were getting in on the fun bits. Not only would we gladly take on this assignment, but we would offer gratis a profound promise: not once would we utter a word of complaint about what had been done in the case before our arrival. No mutterings about 'why didn't they depose the mother?' 'why didn't they hire a better expert?' 'why didn't they file a motion based on x?' etc. We are betting the other firm had its reasons for doing what it did. Whatever. What's the use in whining? Let's treat this case as an exemplar for all litigation which is, in turn, an exemplar for the whole world. Let's take what's given to us with gratitude and make the best of it. We're happy to join the team. Maybe it took us a while to realize it, but practicing law can be a joy, but not so much when it is a solo activity. The success and joy of it lies in collaboration.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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