IN-HOUSE TOM: Chapter 1.5 Litigators at heart, omertàesque silence & no #lawyersbacks

I’m writing a book with the working title: IN-HOUSE TOM: a new target operating model for law departments – initially as a series of blogs.

You can follow the full index of the blogs as they build here: IN-HOUSE TOM: INDEX

Chapter 1.5 Litigators at heart, omertàesque silence & no #lawyersbacks

The fourth, of seven weaknesses, of the current in-house target operating model, is that in-house lawyers are litigators by training and therefore by instinct. This skill is mostly useless in dealing with the business of law.

They also maintain as, one in-house lawyer put it, an almost omertàesque silence about what is “going on” in business. This undermines their current target operating model, business and society.

The profession is systemically adversarial. There is no culture of “having each other’s backs” in a career sense, trained as they are as lone wolves in law firms where dog eats dog in the service of the billable hour which remains, despite all the huffing and puffing about “disruption”, the God/Goddess of the legal sector. 

When I say they, I mean all but the most a-typical lawyers. This is an important caveat as it’s only a-typical lawyers who can save the profession from its impending nemesis. 

The problem with their litigator-as-a-default training is that they see everything as an opportunity to win arguments so that when they need to sell messages, which is what the business of law is about, they’re lost.

To be fair to their trainers, most lawyers are brilliant not only at ensuring that they win, but that the other side loses, badly. Winning arguments has become part of their identity. Without an adversary, they lose confidence. 

This weakness is ruthlessly exploited by “the business” which understands selling. 

Equally and as damaging, in-house lawyers view “the business”, albeit unconsciously, as an adversary. This is a massively self-defeating strategy and cripples their current operating model.

Their “omertàesque” silence on what is “going on” in business is a major undermining problem because “the business” knows that it has Legal in a headlock, knows it will not squeal to the outside except in extremis and so “the business” keeps on tightening its lock. Why wouldn’t it? 

Some in “the business”, I’m sure, may view some in-house lawyers as people who otherwise would have to “cut it” on the billable hour treadmill in law firms, have sold their souls for a good salary, five weeks holidays, a bonus/potential LTIPs and, if they behave, some power over other lawyers.

I generalise and exaggerate, but only a little.

But by far the biggest flaw in their current TOM is their refusal/inability to back each other publicly.  

This refusal is understandable. Why would any in-house lawyer stick their neck out in what only the most myopic amongst them know is one of the few remaining unreconstructed sectors in business and which has managed an ongoing Big Bang bypass despite rumours to the contrary?

And those that do stick their neck out get them chopped off not just by the business, but by their fellows. 

And woe betides anyone who calls out this societal deception playing out in plain sight. 

When, in 2016, UCL published its Moral Compass Survey (ibid) there was a furious reaction not from “the business” who are blissfully unaware of the problem because lawyers talk only amongst themselves about their problems but from miffed inhousers at the language used by the authors in describing them. 

The authors of the survey found that there were four categories of in-house lawyer: 

  • the capitulators
  • the coasters
  • the comfortably numb and
  • the champions.

The report had a mixed reaction to say the least. Rhymer Rigby wrote in the Financial Times at the time of publication:

A recent piece of research from University College London on in-house lawyers, Mapping the Moral Compass, has caused a stir in the legal community. It identifies four main ethical groups of in-house lawyers: the capitulators, the coasters, the comfortably numb and the champions. Perhaps unsurprisingly, some general counsel have taken exception to these characterisations.

Rhymer does a good line in understatement.

While I have experienced some hostility towards me and my views, generally speaking, I receive huge support, privately of course, even by those in-house lawyers who disagree with some of my views.  

Their pain is painful to witness.

In 2019 I ran a six-month trial which I called #lawyersbacks. I chaired a fortnightly anonymous conference call for lawyers who could speak openly, safely and with other lawyers about their experiences under pressure. 

The calls were heartbreaking to hear mainly because some lawyers were gobsmacked that their experiences were shared by others and that mutual support was possible in what is often a “macho” environment where being the brightest is what counts and emotions eschewed. The loneliness came over like a scream though no lawyer would ever reveal this publicly. 

In this regard – a reminder of the three key elements of any target operating model: needs, strategic resources, processes. 

Lawyers are the main strategic resource in the current in-house target operating model. 

Given the evidence above, how could the current IN-HOUSE TOM possibly be “fit for purpose”. How?

Ciarán Fenton

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