by Ken Lopez
Founder/CEO
A2L Consulting

A little more than a month ago, I surveyed our readership and asked, "how does in-house counsel hire outside litigation counsel?" Six possible answers were presented in random order.

1. In-house chooses the lowest priced firm from a group of approved firms.
2. In-house hires the best litigator based on prior experience.
3. In-house hires the best litigator based on their reputation.
4. In-house hires their litigator friends and former (or future) colleagues.
5. In-house hires the litigator most likely to generate a win.
6. Finally, a write-in field for other responses answers

Having worked in the litigation industry for more than 20 years and seeing favoritism trump skill plenty of times, I expected some cynicism to show through in the answers provided. However, even with that expectation, I was still very surprised with the results.

A2L Consulting is quite precisely in the business of helping litigators improve their results at trial, primarily through mock trial testing, litigator coaching and the development of persuasive litigation graphics. Said another way, we are in the business of helping trial teams win. Accordingly, perhaps seeing the world a bit too much through my own lens, I really did expect that the number-one result would be "in-house hires the litigator most likely to generate a win." 

Boy, was I wrong. That answer didn't place in the top four. In fact, other than "Other," win-generation-likelihood was the factor ranked lowest for how in-house counsel hires outside litigation firms. I find that amazing. Isn't a win exactly what we seek when going to trial in the first place?

Well, the results get even more surprising. Two answers stood out as the dominant rationale for making hiring decisions. They are essentially tied for first place and are together twice as popular as the next two highest ranked answers. Based on 168 responses thus far, in-house counsel hires outside litigation counsel by:

• Hiring the best litigator based on prior experience, and;
• Hiring their friends and former (or future) colleagues.

Those are pretty surprising answers if you think about it. In-house counsel are, by and large, hiring their buddies and litigators they've used before. They are not hyper-prioritizing winning, reputation and price, at least not over other factors. That's not to say that those factors are not considered. Rather, they are just factors not at the top of the list (albeit, by a wide margin).

There's nothing wrong with hiring a litigator who has generated good results before. Past performance is the best predictor of future performance. However, it is extraordinarily rare, if not impossible, to find a litigator that is the right fit for every case a business faces. Furthermore, most great litigators actually go to trial very rarely, so how can one reasonably predict great results based on one or two previous positive results? If favoritism is the dominant decision-making rationale, one can't really say they are deeply focused on winning. Trust may be important, but how much does it really contribute to getting great results at trial?

Putting on my CEO hat for a minute, I can't imagine our GC making a decision based on favoritism, and I wonder if CEOs and CFOs understand how the hiring of outside litigation counsel is being handled in their firms. How many dollars are being lost or left on the table (at trial or with outside counsel) because of this decision-making methodology? How would a CEO or Board of Directors even begin to evaluate whether the trial results they are getting are as good as they should be? I'm going to tackle this and many of these questions in future articles.

The write-in answers on this survey provide more clarity, confirmation of the dominant decision-making rationale and a few laughs. Here are a handful of answers that stood out to me when our readership was asked, how does in-house counsel hire outside litigation counsel, and chose "other":

• "In-house hires the firm where a member of the board of directors is a senior partner."
• "In-house hires the law firm least likely to cause in-house to be fired"
• "In-house hires "IBM", which is the litigator or firm that they will not be questioned about if they lose"
• "In-house hires the firm that presents the strongest strategic argument when interviewing the firms"
• "In-house hires the team with whom they see themselves being able to spend the next five to seven years of the lives."
• "In-house hires the litigator who best understands their business"
• "Hire a big firm regardless of price or litigation history."
• "Who they play golf with."

Other articles discussing litigation management, in-house counsel and working with litigation consultants like those at A2L Consulting:

• 1-Question Survey: How Does In-House Hire Outside Litigation Counsel?
• 17 Tips for Great Preferred Vendor Programs
• 10 Key Steps After: "I've Got a Case I Might Need Help With”
• 9 Things Outside Litigation Counsel Say About In-house Counsel
• 5 Signs of a Dysfunctional Trial Team (and What to Do About It)
• 5 Tips for Working Well As a Joint Defense Team
• 2 Metrics Showing Litigation Shifting to Midsize Law Firms
• 17 Trial Consulting and Jury Consulting Tips for Midsized Law Firms
• 7 Reasons In-House Counsel Should Want a Mock Trial
• 12 Alternative Fee Arrangements We Use and You Could Too
• Litigator & Litigation Consultant Value Added: A "Simple" Final Product
• FREE DOWNLOAD: Learn How to Get Value in The New Normal Legal Economy
• 9 Questions to Ask in Your Litigation Postmortem or Debrief