ATL Set To Unveil New Ranking — What In-House Counsel Really Think About Law Firms

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Above the Law – Thinking Like a Lawyer

ATL Set To Unveil New Ranking – What In-House Counsel Really Think About Law Firms

02/23/2018

[Music]

Intro Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

[Music]

Joe Patrice Hello. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice.

[Applause]

Joe Patrice Yeah, thank you, thank you. Nice. And I have a soundboard that I play with, because it annoys my co-host who is here next to me.

Elie Mystal: I’m Elie Mystal, and I hope Joe dies before the soundboard bothers me too much more.

[Hooting]

I’m also sick but I — gosh. I am also sick, but I want to say to all of our listeners that I got the flu shot and even though I’m a little bit fluish, the important thing is that I’m not dead, so get your goddamn flu shot like an intelligent human.

Joe Patrice: Yeah, so that public service announcement from Elie there. Yeah, flu shots are important. They’re great. I mean, I’m sure that’s the way the government is tracking us, the deep state and all, but whatever.

Elie Mystal: I’m not actually here to grind my gears about the flu shot, I was going to do five minutes on school shootings, but that’s a morbid and it makes me sad; so instead, I want to do five minutes on porn stars.

Joe Patrice: They have been in the legal news a lot lately.

Elie Mystal: We have and Above the Law had opportunity to write extensively about a few porn stars, one of whom I’m sure you all know, that’s Stormy Daniels, she is the alleged side piece of the President of United States. Another, Belle Knox, we’ve written about, because she just got into or matriculated to NYLS Law School.

So, here’s my thing. Since we have to write about porn stars so often my issue is that I feel like we need a better legal definition for what porn star is, okay. Just because you’ve acted in a porno should not make you a porn star, okay. We don’t call an extra in a movie a movie star because like he handed Tom Hanks a cup of coffee, all right? Tom Hanks is a movie star, the extra is an extra. We need to be able to make some kind of actual distinction between porn extras and porn stars.

Joe Patrice: Do we not? Like, I mean, honestly, I don’t think anybody who is just an extra, first of all I’m not thinking there’s like armies of extras in most porn, but it’s not like the extras are getting, are claiming that they are porn stars. These are literally the actual adult performers you’re talking about when you talk about Bell, not Belle Knox and Stormy.

Elie Mystal: I’m sorry, I’m sorry I got her. I’m sorry I got Mrs. Knox’s name wrong, that’s bad form by me.

My point is that — no, there’s — what people are doing, what people are doing, and I’m sorry to bring this to your attention. What people are doing, they are the star of a scene of some — they’re the star of a scene of some description and because they are the star of the scene, they are calling themselves porn stars.

I’m saying that our definition of porn stars should only go towards people who have been the stars of multiple movies, multiple plot lines, and our bankable actresses just like we do it for movie stars.

Joe Patrice: So, I guess, I see what you’re saying it, but I think this is kind of the difference between model and supermodel, right, or like an actor and a box-office draw. You don’t believe the word “porn star” should be used for people who starred in porn, but only people who do, what is considered the minimum number of porn movies, which I believe is 700-800.

Elie Mystal: Well, I mean, yes, I’m making the same kind of legalistic distinction that I would make between let’s say, Chiwetel Ejiofor, and Michael B. Jordan at this point, right? Chiwetel Ejiofor is a really good character actor, 12 Years a Slave, Inside Man with Denzel, he’s a good actor. I like him in movies, right? He is not a movie star.

Michael B. Jordan, Apollo Creed movie, Black Panther movie, Michael B. Jordan is a movie star, right? That’s the kind of distinction that I think that we should be able to make to the adult film industry as well.

Joe Patrice: I’m not — not as familiar with the inner workings of the porn industry but it would strike me so that it probably does happen and it certainly isn’t a thing that is relevant to this legal discussion as both of the individuals that you’re talking about who have been in the legal news lately would have met your definition.

Elie Mystal: Well, here again, here’s my point, how do we know that, where’s the committee on that, right? Because I shouldn’t have to go check out Stormy Daniels’ filmography to know if she is truly a porn star, a star of the pornography industry or if she is just an actress.

(00:05:01)

Joe Patrice: Right. I mean — I mean they have awards and stuff for this, like there’s actually a thing. I know that because a previous article I wrote was I knew — we talked about cryptocurrencies a couple weeks ago. I knew a person who was working on a cryptocurrency for the porn industry that was going to be the way — revolutionize all that, it was called Titcoin. Anyway —

Elie Mystal: You know about porn industry awards because you wrote the articles?

Joe Patrice: Yeah, cute. No, but this guy who was working on a crypto with some other porn publishers, was working on this crypto and I talked to him about cryptocurrencies a couple years ago, but he was talking about, yeah, I went out and I met with people at AVN, and so like there’s actually award ceremonies that they have where the big stars come out, and there’s like a red carpet where they’re like what are you not wearing?

The point is, they do this, and this has already been resolved internal to the industry, much like every industry awards and recognizes who the real players are within it in ways that maybe those outside don’t. I mean, certainly in the legal world I think we know who super lawyers are in ways that the real world doesn’t, even though there is a publication called Super Lawyers, but that doesn’t really count.

Elie Mystal: So, to close, I guess what I’m only asking for then is not so much a new more stringent definition, but for an accreditation agency. So I want AVN, I want Belle Knox, not Bella, Belle Knox to have to say Belle Knox porn star accredited AVN, or something like that.

Joe Patrice: The Internet, which is a thing, announces that Belle Knox was the 2015 Best New Starlet and Mainstream Star of the Year nominee. There are actually awards and stuff where you could look this up if someone were so inclined.

I have never thought that I would have this deeper conversation about the way in which the porn industry works. I think what Elie is trying to get at is he wants to watch more porn I think.

Elie Mystal: No.

Joe Patrice: I mean, like, because otherwise I think all this information is here for you.

Elie Mystal: No, no, I want to not have to watch porn, I just want to be able to structure my articles and give people the proper appellation.

So, Belle Knox, porn starlet would have been better in our article than Belle Knox porn star, and 07:17 scene.

Joe Patrice: Yeah — no, it wouldn’t. Anyway with that bizarre aside we’re going to take our short break and then come back and talk about one of our favorite things in this world, which is plastering rankings on people to tell them their self-worth.

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Joe Patrice: Hey listeners. There is a brand-new show on the Legal Talk Network about the First Amendment. Did you know that, Elie?

Elie Mystal: What?

Joe Patrice: Yes, in fact, there is a new show about the First Amendment called Make No Law with our friend Popehat.

Elie Mystal: He did — he is doing his own podcast talking about the stuff that I’ve specifically debated him about.

Joe Patrice: Yes, and part of him beating you in that debate is he win a podcast I guess.

Anyway, the point is, he has a show now and let’s listen to a quick trailer about the show.

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Ken White: News and pop culture are full of controversies about free speech and the First Amendment. We hear terms like hate speech and heckler’s veto and a barrage of coverage about campuses, protests, and even wedding cakes. But what does it all mean and how did we get here?

That’s exactly what my new show Make No Law: The First Amendment Podcast from Popehat.com will explore. I am Ken White and I invite you to tune in every month for the history, stories and personalities behind the right to free speech and the most important Supreme Court cases establishing it.

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Joe Patrice: You can find Make No Law on the Legal Talk Network, Apple Podcasts, Google Play, actually wherever you are listening to this podcast, do the exact same thing.

Elie Mystal: If Ken gets his own podcast, I want my own podcast.

Joe Patrice: You have your own podcast.

Elie Mystal: No, you are here.

Joe Patrice: You actually have multiple podcasts.

Elie Mystal: You are literally right here.

Joe Patrice: Yeah. You aren’t talking in the microphone, but that’s cool.

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Joe Patrice: And we are back. So we’re here with the Above the Law Research Director, Brian Dalton, we are going to talk about some rankings. So, welcome to the show.

Brian Dalton: Hi guys, thanks for having me as usual.

Joe Patrice: So, Elie, do you want to talk about what we’re working on?

Elie Mystal: So, speaking of ranking things and giving people their proper appellation.

Brian Dalton: The legal industry’s obsession with credentialism has never been more on display than it has been in the last five minutes. It’s really amazing, and of course, nothing could more naturally flow from that conversation into this one.

Elie Mystal: So, we’re going from porn stars to outside counsel, seamless. So, this is one of the more — this is — I’m a little bit up biased here. I’m very excited about these rankings. I helped in the ideation of these rankings. What we’re trying to do is rank outside counsel. Now, what do we mean by “outside counsel”? Obviously, most of these big law firms, most of their clients are major corporations, but those major corporations have in-house counsel, right? They have lawyers working for them.

(00:10:06)

So, what the in-house counsel do, one of their key jobs, is to figure out when and who to call when actual legal matters come up, and they have to figure out which big law firm to call. So, we wanted to rank the big law firms based on what those in-house lawyers think about them as opposed to what the big law lawyers think about themselves.

Have we accomplished that in any way, Brian?

Brian Dalton: I really hope that we have. Of course, we’re not the first people to ever think of sort of asking in-house counsel to rate or evaluate outside counsel, but as you know, there’s at least one sort of major trade organization that does this — a very similar kind of — makes a similar kind of effort —

Elie Mystal: The AVN, right?

Brian Dalton: The AVN, but of course, the results — their data is a perk of membership and cannot be solely by sort of the prying eyes of the public. We are the first people to sort of want to share this in-house perspective on outside counsel with sort of the legal audience at large, and I think that that’s what really makes this an interesting and fun project for us.

Elie Mystal: So, the goal here is to rank outside counsel based solely on what their in-house lawyers think about them, across a couple of metrics, what’s our main question, what’s our question presented here?

Brian Dalton: Well, sure, in chatting with various in-house and legal department, corporate counsel contacts that we had about how they think about their outside counsel. One thing I was really struck by was the prevalence of sports metaphors and sort of sports clichés, they are closers or they really help deepen our bench or that sort of thing or they are a utility player. Like, the people in these legal departments kind of have developed their own kind of taxonomy of outside counsel.

Of course, if you listen to law firms describe themselves, you’re going to hear a lot of very similar claims about capabilities and their values and what have you, but if you talk to people at these corporations, at the clients, they put outside counsel into various buckets, and the best we could do to approximate it was to kind of define a spectrum that had like levels of work.

On one end of the spectrum is cost-efficient bulk tasks and then moving along is routine matters, and then, high-value complex matters, and then finally at the end, the proverbial bet, the company matters.

And so, our survey was quite direct and simple. It was after we had the respondents tell us which firms they engage, then they just would tell us further, now what is the highest level of work you would engage this law firm for. And it was a 1 through 4 scale and the highest average scores were the top two tiers, and that’s what we’re going to end up publishing at least in the first publication, which is slated for next week, which I guess is this week.

Joe Patrice: Yeah.

Brian Dalton: And that’s it. It’s pretty straightforward, it’s aggregating perception and sentiment and it’s based on the type of work the corporate department would assign, the level of complexity, sophistication, and importance of the work assigned to the outside counsel that drove the resulting list.

Joe Patrice: And that’s huge because a lot of times people say, oh, well what’s – hey, in-house counsel, what do you think the best law firm is, and that’s a very different question. And we see that in-house work is moving away from outside counsel in a lot of ways.

Brian Dalton: Sure.

Joe Patrice: We see in-house work moving away from big firms and even mid-tier firms and certain tasks being moved to more boutiques, et cetera. In-house counsel are not making way as they might have in days past. The decision that is, hey, this is a Cravath firm, everything goes to Cravath. Different matters go to different things and different firms.

And I think it’s important to make that distinction because there’s a lot of entities that are very well-regarded I think by firms but only for certain discrete tasks that may not be reflected by an overarching.

Brian Dalton: Sure, and that’s sort of increasing specialization that the role of the specialist is magnified by just the general trend towards unbundling of legal services that we’ve seen over the last say 20 years, really and it only accelerates.

Elie Mystal: Now you found — correct me if I’m wrong, but you found that there were firms using litigation boutiques as Joe mentioned, rated particularly highly.

Brian Dalton: Yeah, that was one of the really interesting things. Let’s just be honest, there’s no bombshell revelations on our list. We didn’t uncover some heretofore unknown firm that everybody just — is just gaga over.

Joe Patrice: Yeah, we are going to edit that out, right?

(00:14:58)

Brian Dalton: These are all – no, but I mean, let’s — there’s a certain durability of law firm brand perception and how it blurs into actual law firm quality, nobody’s really ever been able to sort of disentangle those two things and nor have we. But, the one striking thing about our result is the fact that the firms that received the most love that came in with the highest rating were these smaller, mostly newer litigation boutiques.

In other words, we didn’t do an ordinal ranking where we put the firms in a list that the firm with the highest rating at the top and the lowest at the bottom. We just made an alpha list within a tier, but it’s interesting to note that by far, and strikingly so, the highest rated firms were these boutiques, and I guess the relationship between the corporate legal department and the litigation boutique, which is presumably only brought in as a hired gun as needed and assuming a positive result is going to be — that will redound to the benefit in terms of perception of that firm as opposed to sort of work a day relationships they have with more sort of general service firms.

Elie Mystal: Keeping your asset nonetheless.

Brian Dalton: Yeah.

Joe Patrice: Feel kindly towards your lawyer.

Brian Dalton: For sure.

Elie Mystal: So that was one thing. The other thing though that I was surprised about when we’re looking at the numbers is that in-house counsel generally seem to be happy overall with their choices.

Brian Dalton: Yeah, I wonder if there’s some sort of psychological principle at work there, because remember, we’re asking them to evaluate the — we’re not asking them for their satisfaction with their firm, we’re asking him the highest level of work they would assign.

And I think upon reflection and seeing the way that the responses came in, there’s probably something at work where in-house counsel are loath to characterize anything that they’re involved with as sort of commoditized bulwark. So, that’s something that we perhaps —

Elie Mystal: Everything is important to us.

Brian Dalton: Yeah, everything is important.

Elie Mystal: Right.

Joe Patrice: Well, so — like you said, there were no real bombshells here, is there anything like in the conception — was there anything that you thought was going to be a bombshell, like how did this idea for a ranking come about like who like inspired it or anything, and then, did you get what you wanted out of that?

Brian Dalton: I think that we did, and I think that the value in this ranking is — it’s a new way of looking at big law, okay? It’s not based on any of the sort of the law firm-centric metrics that have always been employed to create these rankings, schemes, whether they’re our own or whether it’s 17:36 or what have you.

It flows out of really the most important and sort of most elusive figures in this whole kind of industry, everybody wants a piece of in-house counsel, right? People want them to come to their events. People want them to come to their cocktail hours, people want to network them, people always want a piece of them, people are pitching in-house counsel all day and —

Elie Mystal: So, I think to answer Joe’s question, if you allow me, I think that Brian’s underselling a little bit the utility of the rankings because I think when I look at the rankings, especially when I look at the two tiers that we have here, one of the things that you see is that there is a bit of a confirmation bias for people who have been in the industry for a while.

For people like us who are reporting all the time, I think for a lot of senior associates and junior partners, these lists are going to make a lot of sense, these tiers are going to make a lot of sense. If you are in-house at a major corporation or a major bank, you’re going to look at these tiers and they’re going to make a lot of sense.

If you’re in law school, you’re going to be surprised, right? If you’re a junior person you’re going to be surprised. If you don’t know how the lay of the land, you’re going to be surprised because I think that every individual big law firm is always telling you, oh, well, we’re the top, we’re the most respected for this. We do this great work, we do that great work.

It’s going to be interesting when you see that, well, yeah, they do a lot of work, but clearly, the market is decided the quality or the utility of their work is kind of second-tier or the firm’s that don’t make our list at all are third tier or fourth tier, right, that they’re clearly — there’s clearly like a top crust of firms that you go to if you can afford them when the chips are down.

And then there’s another crust of still very, very good firms that you’re still very happy with, that still produce great quality outcomes for your client but those firms are almost clearly your second choice.

Brian Dalton: Sure, and it’s only fair to know that we say we’re having a tier one and a tier two, well, these are the first two tiers out of how many a thousand of tiers. I mean, this is — to be on this list at all, it’s quite remarkable and all of these are fantastic firms, but there has to be a one and a two as we discussed.

Elie Mystal: My question is, because I know people will ask, just was it pay to play in anyway, like how did we get the firms that ended up on the list at all?

(00:20:00)

Brian Dalton: Absolutely not. We reached out through our own devices to all of the in-house and corporate counsel that we could communicate with and we were fortunate enough to have a pretty robust response to our inquiries, over a thousand in-house counsel told us what they thought of their outside counsel, and that really drove the rankings. And in addition to the first and second tiers, which you’ve noted, we’re also going to be publishing next week six industry specific lists, shorter list, but that cover finance, and technology, and healthcare and life sciences, and media and entertainment, and a couple of others.

And those lists are also by contrast also interesting and what it reveals about the really sort of specialized priorities about inside counsels.

Elie Mystal: Those are interesting to me because again as opposed to a lot of the other rankings, the way that we’ve done it, and correct me if I’m wrong, but the way that we’ve done it is that we’ve chosen the industry based on what the corporate counsel represented their industry was not what the firm represented, because you’ll see a lot of firms like, oh, we have a thriving energy practice. Excellent.

But, this list is based on what corporate counsel for energy companies say which firms they use.

Brian Dalton: That’s exactly right. The industries were completely self-identified.

Elie Mystal: So, I think it’s going to be cool.

Joe Patrice: Yeah – no, that sounds great, and an important series of questions to start asking because we all the time, I think, both on this show and in Above the Law, we’re talking about the kind of malaise in the outside counsel industry, where they’re — how are they going to get work. People are losing – losing demand, et cetera and it’s like, well, has anybody started to really dig down and ask in-house counsel why?

And not that we ask that question but I think this goes a lot to getting into that.

Elie Mystal: That’s the — I think we are done.

Joe Patrice: Oh, okay well.

Elie Mystal: Allow me quickly, Joe, to thank our sponsors of this project of the outside counsel rankings, our friends at the litigation finance firm of Lake Whillans.

Joe Patrice: Oh, yeah, so that’s great. Thanks for their help to make these happen. I have not looked at them. I know that as an insider, I could have, but I’ve been trying not to because I want to be surprised on lawyer Christmas as much as the next person.

So, looking forward to that for those of you listening. By the time you listen to this, it should be out, if not it might be a couple of days away, and you’ll have some time to stew about it before you get to see it. It’ll be on Above the Law, which you should be reading anyway.

So, with that, thank you Brian for joining us. Thanks for listening everybody. If you want to —

Brian Dalton: Thank you guys.

Joe Patrice: Yeah, if you want to give us a review, that would be appreciated, whether it’s on iTunes or Google Play or however you’re listening to this. You should be following everything that Above the Law writes, you should also follow us on Twitter. I’m @JosephPatrice. He is @ElieNYC.

You should subscribe to the other Legal Talk Network podcasts because you can go on to their app and hear all of the options that they have. And with that, Elie, did you have anything else?

Elie Mystal: Also for the rankings, I wrote like a decision tree, it’s really cute.

Brian Dalton: Oh, it’s hilarious.

Elie Mystal: I really want people to read it too.

Joe Patrice: So, you have something kind of cute to listen to later. Yeah, so with that, we’ll talk to you next time. All right, thanks everybody.

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