This article is written by Ramanuj Mukherjee, CEO, LawSikho.
Lawyers want to work for big companies. Even when you are in a law firm, big corporate clients are the most sought after. Especially for litigators, big companies are the most lucrative clients, in terms of money, prestige and standing in court.
Big companies typically have their own in-house legal teams. However, such lawyers are not allowed to appear in court, nor is it a good idea because litigators in specific courts have better knowledge of what works and what doesn’t before a certain judge. So big companies are always hiring litigators for all their litigation related work.
However, the work comes through the in-house legal team to litigators, and the in-house lawyers also keep a tab on the performance of these outside counsels. The responsibility of outcome is on the shoulders of the in-house counsel to a very large extent, which usually outside lawyers tend to eschew.
A matter is just another matter for a litigator, and win or loss is not personal. However, for in-house counsels, it is often a do or die battle for their organization. Their career progression, bonus, salary hikes and standing in the organization totally depends on how these cases turn out, and they keep a sharp eye on what the outside litigators are doing and how they are going about their litigation work.
Why is this so important to litigators?
It is the dream of every litigator to have lots of big corporate clients. They want to be frequently instructed by such clients. A lot of my students who are into litigation often ask me about how they can get work from such big companies.
The key is to understand what the in-house counsels want and how they operate. If you can understand the in-house counsel’s challenges with respect to litigation, you can easily align yourself to get the right opportunities and build a successful practice backed by such clients.
With this intention, I recently asked in-house lawyers about the problems they are facing while working with litigators and what they would like to be different. I was drowned in a barrage of complaints and outbursts. In-house lawyers mostly describe their experience with litigators as horrific, unprofessional or terrible.
Is that a good thing or a bad thing for budding litigators?
Now here is a great opportunity. The biggest spenders in the legal market are very unhappy. Could you understand their problem and then cater to them in a way so that they love what you are doing? Could you turn their dissatisfaction with current legal services into an advantage of yours that attract more such clients to your practice?
Let’s get to that in a bit. Let us first see what are the top 5 complaints that in-house counsels have against litigators.
Lack of adequate communication and proper updates
Most lawyers fail to differentiate between individual clients and sophisticated corporate clients. Most corporate clients have enough legal firepower to know the law, and what remedy they need to pursue. They will consult many other legal experts and come to you for a very specific advice or execution. You cannot add value to them with your knowledge or standing in court alone, though those are necessary too.
However, despite having those, if you fail to keep your corporate clients on the same page about every action you are taking, and every piece of strategy is not cleared by them first, you are not likely to keep those clients for long.
In-house counsels hate surprises, because rarely such surprises are good for them. Here is what Esha Shekhar, General Counsel of PoSist Technologies, a leading SaaS company has to say about this:
The biggest challenge is the poor communication maintained on the matters they are working on. Right from the information about filing, hearing dates, documents filed etc. I know of more than one instance, where litigators filed documents and petitions without getting proper clearance from the authorized people in the concerned company.
Suchi Singh, an in-house lawyer from Zoomcar also said that her top difficulty in dealing with litigators is their “Inability to keep the clients informed of the proceedings in a case”.
It does not help that lawyers do not consider themselves accountable. When things get difficult, they can simply chose to ignore all calls and mails from in-house counsels. This is what the in-house lawyers dread the most.
A story shared by Amit Das, another in-house counsel from Crompton Greaves, was on point. According to him “it is impossible to get responses from some litigators most of the time, even when court hours are done. When repeated calls or mails are not replied to, it is deeply disconcerting. Once I remember getting a “you are not my only client” mail in response to a stinker after no response for a month.”
Imagine how in-house lawyers feel about such lawyers.
In-house lawyers have to keep updating their company’s MIS (Monthly Information System) on a regular basis. Their work is often information-management driven, and they have to take strategy calls based on such information received. They can afford to hire a lawyer who may lose a case, but they cannot afford to hire a lawyer who will not communicate and fail to keep them updated every time when there is any progress or even no progress.
Do you notice how when you buy something from Amazon they send you messages every time the item is despatched, put into a warehouse, reaches your city, and goes out of warehouse for delivery? You are kept informed about every step.
Can you do that as a lawyer for your in-house counterpart? Because that is what they will love to see! Maybe you should put in place some technology that will help you to give such regular updates?
What if you can use project management tools and have your own MIS tools that feed into the tools and systems of companies that hire you? These questions are to be taken seriously for lawyers of the future.
Very hard to identify the right lawyer
Which lawyer should you hire for a particular litigation matter? Every litigator pretends to know everything and understand everything. Very few people are really transparent about their own competence. Unless one is closely associated to a certain court or area of practice, it is very difficult to predict which lawyer in the right person to go to. Lack of publicly available reviews or validation of expertise is also a major reason for confusion.
Imagine the conundrum faced by in-house counsels who have to instruct multiple lawyers on new matters every day. This is routine work for in-house lawyers who work for banks, consumer goods companies, NBFCs and real estate companies.
Are they making the right choices? They are always worried and under pressure.
This is why referrals are very important. If other lawyers and past clients have good things to say about your abilities and work ethics as a lawyer, you have very high chances of getting instructed in multiple matters by the same company. This is because once they trust you and you begin to deliver reasonable results, they are locked in and have not much incentive to spend time finding another dependable lawyer for that same work or jurisdiction.
Also this is why it is very important to have a strong internet presence. If you have written many articles on a certain area of law, given interviews online, have a great Linkedin profile with many endorsements from other in-house lawyers they know, and testimonials from past clients, and maybe some videos on YouTube where they can see you speaking on relevant subjects; such things give immense comfort to a corporate counsel that you are a genuine expert in what you claim to be an expert.
While old timers may not be yet used to this new way of doing things, this internet based whetting is solidly in and will go nowhere. It is only going to become a more and more common practice to Google the lawyer you may hire, and see what comes up. And hence lawyers who pay attention to building their digital presence will benefit tremendously.
Sudden disappearances while a matter is pending or before hearing
This is another nightmare of in-house counsels. Imagine that a matter is going on, and a lawyer has taken some missteps. You confront them to fix things. In response, they ghost you. Totally stop picking calls and responding to your mails.
What do you do?
Indiscipline of litigating lawyers is very common. Such things can be prosecuted before the bar council technically, but who has time to run around to do these things?
As Suchi Singh says, some lawyers stop working on a matter midway without even communicating and avoid calls/emails to this effect. It goes without saying that such behaviour is totally unprofessional and can cause a lot of harm to the corporate client, especially in matters that are sensitive.
It is also not unknown that some lawyers even after accepting fees and promising to appear in a matter, may totally fail to show up at the hearing without any prior information. It is very difficult to hold these lawyers to account, because their simple response is that I was held up in another court. However, such failure to appear can jeopardize the interests of a client.
And therefore, the in-house counsels are always on their toes regarding this – will the lawyer they have instructed appear as promised?
Imagine what could happen if you can build a reputation of being dependable and reliable on this department, would that help your practice a great deal?
Inability to work in tight time frames and failing to keep commitments
According to a lot of in-house counsels, way too many litigators have no integrity with respect to time. They can promise to deliver something by Monday and never get back even as the week will get over. The in-house counsels often have to hound these lawyers to get any work done. Many litigators also have a lot of problems with following timelines or even giving a commitment with respect to by when some work may get done.
They often insist on long deadlines when such deadlines are not necessary, and promise unrealistically short ones knowing well that the deadline cannot be met at other times.
In-house counsels often work under a lot of time pressure on things that are super time sensitive. They absolutely blacklist lawyers who are not good with managing time or delivering within promised timelines.
I have seen lawyers with amazing reputation in court and great ability to carry the day with their legal skills losing client after client due to bad time management and failure to stick with timelines.
Procrastination can also be quite common.
According to Tanushree Nandan, founder of The Layman’s Lawyer, some litigation lawyers have a habit of procrastinating on document preparation till the last minute. They do not seem to understand that the signatories or relevant persons in the organisation they are representing have other things to attend to, and might not be available at their beck and call. This is another sureshot way to lose big corporate clients.
Lack of transparency
Imagine that your lawyer informs you that you have got the order you wanted. When the order in uploaded on the court website and you get your hands on them it turns out that the exact opposite has happened. What do you do to control damage because you told your superiors, or board members, that you have already got the order as per written communications of your lawyer? I have seen this unfolding before me. It can be tragic.
You can imagine how wary this makes any in-house lawyer of whatever it is that a litigator may communicate to them.
Kapil Nikam, Manager – Legal at Tata Realty & Infrastructure Limited supported this point. “Nowadays most of the orders are updated in court websites. Updates from advocates and what’s reflecting in the order is sometimes different when we check!” he said.
Tanushree Nandan also agrees that this has become a major issue. In her words: “Lack of transparency is something that I faced quite a lot. Less from firms, as they usually have well defined practices of keeping the client in the loop.”
And perhaps that is why even corporate counsels prefer to have a law firm working in between with the litigator, very often, though that increases the cost by a lot!
Transparency is not only needed when discussing outcome of cases, but at every level from how you communicate your expertise, your assessment of a particular case, your fee quote and even the roadmaps you provide. In-house lawyers love transparency and more transparent you are, the higher chances of you landing and retaining these clients.
Smart lawyers therefore painstakingly build a reputation for transparency at all costs, even if that means you lose some clients in the beginning.
Lack of systems and clear policies
Most individual lawyers do not have the tools they really need to keep up with how corporate India is evolving every day. Corporate in-house counsels are used to working within well defined systems, with clear policies and rules, and expect the same when they go to work with law firms and individual lawyers. Unfortunately, this results in a clash of civilizations. Almost.
Most litigators do not have basic policies in place with respect to conflict check, maintaining confidentiality, data security, social media communication, handling of press, third party communications or even issuing of invoices on time in proper acceptable formats!
It is not possible for in-house counsels to educate individual lawyers about such things every time they work with a new lawyer. In-house counsels get totally frustrated when they have to work with such lawyers. This is why they prefer to work with systematic law firms which understand the importance of such policies, systems and checks.
I hope this gives you a clear way to make your practice more attractive to corporate clients. Think about their major interests. How can you make their confidential data more secure? Can you take certain process certifications that indicate to this kind of clients that you have thought through such issues? Can you actually provide comfort to them about the things that worry them about the average lawyers?
Not incorporating inputs from in-house legal team well and taking clearances lightly
Most in-house teams want a firm control on how their matters are handled. You cannot expect to have full autonomy in a matter where such teams are involved. They want you to play a role, and you need to play only that. They may come with a strategy you do not agree with. In that case, the right thing to do is to discuss openly, and even back out of the matter if necessary.
But if you do not act according to instructions from such clients, and if you do not take them along with you on every step, you will sureshot lose them and even recovering your fees may become very hard. Also, you are irretrievably harming your brand, because they will talk behind your back about how unprofessional you were.
Also, before filing any documents, plaints, claims, representations etc, you must take clearance from such clients. Because if you do not, you are certainly looking for the door tomorrow.
Aversion to adoption of technology
A major pain point with many litigators is their refusal to adopt any technology. Many of them will not communicate over email and whatsapp, which are staple these days. But even bigger problems are created because lawyers are not comfortable with using project management software, billig software, time keeping software etc. They cannot even imagine arbitration or mediation happening online through software, though that is clearly the future of ADR.
In-house legal departments are at the vanguard of adoption of new and disruptive technology, because they benefit most from these. Here is a list of technologies that are shaping the future of legal industry going forward.
And even on the face of inevitable change, most litigators are completely oblivious to the momentous shifts that are changing the contours of legal services.
They would not even adapt a simple collaborative drafting platform that can save a lot of back and forth!
It is very clear to me that litigators who track and adopt new changes in technology stand to gain disproportionately in the coming years as big corporations will choose them simply for these reasons. I would also like to mention that we need a lot more technology to make litigation easier, more effective and streamlined. We would probably see such technology emerge in coming 5 years.
Lack of support staff and administrative support
Most litigators operate alone, or along with a few other lawyers. They fail to build any kind of organization and do not hire support staff such as secretaries, clerks or administrative professionals. As your practice grows, please begin to invest in good paralegals, secretary, finance manager and other administrative staff who can take care of a lot of the admin work. If a lawyer tries to do everything on their own, it will be a disaster. This is just not manageable, and is at the heart of many failed practices.
Your stinginess that stops you from hiring good support staff is holding your practice back. Please have a growth mindset and invest in building an organization as soon as possible, failing which you are likely to get into deep trouble.
Any smart in-house lawyer will check for whether you have a support staff or not, because if you do not, chances of you delivering on tall promises is very little. Also, it means you are probably not that great. Yet.
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