"Where I want to start telling is the day I left Pencey Prep…. You probably heard of it. You’ve probably seen the ads…. [I]t always says: ‘Since 1888 we have been molding boys into splendid, clear-thinking young men.’ Strictly for the birds. They don’t do any damn more molding at Pencey than they do at any other school.” - Holden Caulfield
I’m not as cynical as The Catcher in the Rye’s protagonist. But, I get the point. As an in-house lawyer and outside counsel, I had found Big Law firms' assumed-to-be- top-quality process and results to be mostly wanting. A notable exception: Kirkland & Ellis’ DC office, where I was schooled in the “Kirkland way,” i.e., applying a disciplined, “nuts and bolts” management approach to all matters, distilling a matter into a persuasive and relatable story focused upon a discrete number of issues, and then tailoring discovery to develop those facts necessary to tell the story. Most firms, it seemed, did the opposite, conducting broad discovery and then only beginning to fashion a story at summary judgment – missing out on opportunities to persuade a judge early and often, cabin the litigation, and reduce billable hours spent on unnecessary, and unhelpful, discovery and research. It occurred to me that a firm’s practice was knowing and intentional. My mentors aggressively pursued an efficient process, and the earliest, best conclusion, for the client out of a sense of professionalism – perhaps, with a dash of the reality that the firm was too busy to spare misspent hours. Others firms to which I had been exposed treated any significant matter as if it were the rare whale fall, to be scavenged for years on the ocean floor.
But, either way, the billable hour gets in the way as the measure of an attorney’s contribution – not to any client, but to the firm. For instance, in a tangible, hourly billing arrangement, how exactly does a firm value an intangible, creative argument or solution to a client’s problem? Regardless of intentions, a firm that performs, and is compensated, by the hour has built-in impediments to consistent delivery of such intangibles because the process either costs too much to the client (e.g., with best intentions, because of the cumulative cost of collaboration among attorneys), or the process pays the firm better than client success (e.g., with worst intentions, because there is no performance incentive, and working harder makes the firm more than working smarter).
It’s conundrums such as these that Prof. Bill Henderson of Indiana University Maurer School of Law, and Hildebrandt, challenged teams of firm partners, firm associates, and in-house clients to address at FutureFirm 1.0 (2009), a competition to craft a new law firm business model. I sat on the judges’ panel for FutureFirm 1.0, and was impressed by the winning proposal, emphasizing a more collaborative and equitable working environment and alternative fee billing arrangements, submitted by a team including a then President of the Association of Corporate Counsel’s Chicago Chapter, as well as Pat Lamb of Valorem. Pat and I crossed paths again at the Building Better Lawyers workshop at Stanford University (2010), among participants from Fortune 100 legal departments (including myself, at that time), top tier law schools, the AmLaw 100, and legal entrepreneurs and transformationalists (including Pat). It turns out that Pat and I have overlapping professional interests and networks. And, when I began considering a return to the outside counsel ranks after a four-year stint in-house, Valorem presented a unique opportunity to join a splendid, clear-thinking group of progressive legal professionals breaking the billable hour mold.
I come to this from a diverse legal background. First, serving as an Assistant District Attorney, prosecuting crimes in the Philadelphia “Badlands,” and conducting hundreds of bench trials, motion hearings, and preliminary hearings (as it happens, trials and hearings before a judge now a Justice of the Supreme Court of Pennsylvania, and reporting to an assistant unit chief now the District Attorney of Philadelphia). Second, representing the Fortune 500 as outside counsel in impact litigation, including among others: (i) representing Brown & Williamson Tobacco Corp. in United States v. Philip Morris USA Inc. et al., the U.S. Department of Justice’s civil racketeering suit against “Big Tobacco,” culminating in a nine month trial in the U.S.D.C. for the District of Columbia; (ii) representing the Auto Alliance in an initial challenge to a California greenhouse gas (CO2) emission regulation, which, at the time, required increases in corporate average fuel economy beyond federal schedules and mandates; (iii) representing telecom giants in state regulatory proceedings related to their merger; and (iv) representing a corporate client in a False Claims Act investigation alleging several millions in over-billing, subject to treble damages, but obtaining a rare dismissal of the government’s subpoena and undermining the government’s allegations using its own documents obtained through a Freedom of Information Act request. In an impact pro bono matter, I also utilized the Freedom of Information Act, on behalf of an anti-discrimination committee, to obtain nationality statistics of persons questioned by the U.S. Department of Homeland Security to protect against racial profiling. Third, and most recently, supporting business clients as in-house counsel at a Fortune 100 consumer products manufacturer.
I have sought to complement these experiences through leadership roles in the American Bar Association (ABA), Section of Litigation, permitting me to contribute to the legal profession and, at the same time, broaden my perspective through exposure to a range of in-house and outside counsel thought leaders, under circumstances conducive to establishing credibility and developing relationships apart from business. This network provides informal continuing “legal education,” makes me a better, more well-rounded lawyer, and keeps me abreast of new developments, and opportunities, to better align client and outside counsel – as when my network introduced me to Valorem.