How To Be Outside Counsel to Inside Counsel:

 Eight Answers in Forty Minutes

Pillsbury Winthrop Shaw Pittman LLP October 21, 2011

Travis Brown

1. Who is the Client?

• Stakeholders can be GC, other in-house attys; CEO, CXO, Board, Board Chair, divisions, Communications/IR/PR, shareholders, etc.

• How to parse in real life.

• Legal Ethics view incomplete.

2. Why Bother?

• What is best outcome? A good outcome? Worst outcome? How to measure.

• For whom? The client? Stakeholder theory.

• Tension of best vs. good vs. disaster avoidance.

3. What Are We Doing Here?

• Is the issue the issue, or an expression of another issue?

• Framing and re-framing the problem. • Creating value out of costs. Finding business

opportunities in disputes, negotiations.

3. What Are We Doing Here? Cont’d

• Be an engineer AND a physicist.

4. Remind Me Again What We’re Doing Here: Communications

with In-house Counsel

• Etiquette, politics, and substance.

• Cover memo. To/cc/bcc/forward.

• Transparency vs. confidentiality.

• Talk vs. write vs. meet. Against technology.

• Explicit vs. implicit authority, role.

5. Where Do You Create Huge Value?

• Understand your role: to get to final or to gain yardage? Convince client of best do-able deal or achieve good relative field position and then let client decide? Other?

• And/or to resolve a set of issues among micro-clients – internal vs. external negotiations.

• Define role; create agenda; own to point of push-back.

• Bludgeoning is easy and adds little value; strive for elegant solutions.

Negotiations.

6. What Do You Bring that Lesser Lawyers Don’t?

Emotional Intelligence.

6. Emotional Intelligence, cont’d

• Don’t be: Petty, craven, ill-tempered, gratuitously aggressive, flappable.

• Do be: Poised, respectful, principled, patient but quick to get to the answer.

• Theory: In continuing relationships, parties are not deal maximizers, but value relationship. So you can over-argue, over-reach to your client’s peril.

• Everyone defers to competence and credibility. Be deeply competent and always credible but don’t be the smartest person in the room.

7. What Matters When the Shouting Is Over?– Clarity counts. Who is the reader?

• Other Side executive, non-expert• Future counsel to Other Side in dispute• Your client’s executive• Your client’s contract administrator, implementation team • Judge/ arbiter/ mediator/ jury (@#$%^&)• Future litigation counsel to your own client.• Auditor. Acquirer in due dil. Others?

– Never underestimate messiness of real world … consider default settings to make compliance, performance easier

– If you cannot win a contract dispute with a highlighter, you’ve usually lost.

Drafting.

8. What is the First Commandment for Outside Counsel?

Thou Shall Not Overkill.

8. Overkill, cont’d

• How to calibrate the legal inputs to the task at hand. Management of client expectations.

• Limitations of the law school/law-as-appellate-decisions model.

• Imperfection, personality and judgment.

• Keep objective central: what is the range of solutions? Bias towards result, resolution, done deal.

Take-aways:

• Outside counsel is valuable for expertise AND for technique;• BUT: Outside counsel is often handicapped by ignorance

of the client’s real agenda, MO, and organizational landscape. So expertise and technique need to more than offset that handicap.

• Outside counsel is more valuable if expertise extends to skill at attorney-client cooperation, project management, extra-legal support, mind-reading.

• Good to be right, better to be effective, best to be trusted. • Curiosity, Modesty and Agility are key in understanding,

supporting and owning the relationship.

Now: Do It!

• © Travis Brown 2011