Effective Collaboration Between In-House and Outside Counsel

Effective collaboration between in-house counsel and outside counsel is essential to managing legal risks, controlling costs, and supporting business objectives. Differing perspectives, pressures, and expectations can create challenges if those relationships are not aligned.

In this episode, Kent Schmidt interviews Dorsey Partners Kimberly Neville and Bonnie Paskvan, who bring extensive experience serving both as in-house counsel and outside advisors. They discuss practical strategies for improving collaboration, including managing legal budgets, communicating expectations, reviewing bills, and working proactively to prevent litigation.

This podcast is not legal advice and does not establish an attorney-client relationship or create any duty of Dorsey & Whitney LLP or those appearing in this podcast to anyone. Although we try to assure that the content of this podcast is accurate, comprehensive, and reflects current legal developments, we do not warrant or guarantee those things. The opinions expressed in this podcast are the opinions of those appearing in the podcast only and not those of Dorsey & Whitney. This podcast is considered attorney advertising under the applicable rules of certain states.

Transcript

Voiceover

[00:00:02] Welcome to another episode of the SharkCast, on Litigation Risks Management, where we explore why businesses are so frequently sued, and how to mitigate and navigate the dangers lurking in these risky waters. Join us now, as we welcome our host, Kent Schmidt. Litigation partner at the law firm of Dorsey and Whitney. 

Schmidt

[00:00:24] Welcome to another episode of SharkCast. Today I’m really thrilled to join, be joined in this episode by two partners who I count, not only as partners, but long-time friends. And uh, today we’re going to be talking with Kimberly Neville and Bonnie Paskvan on the challenges and the opportunities for collaboration between in-house counsel and outside counsel. So, welcome Kimberly and Bonnie. Um, thank you for agreeing to be guests on SharkCast. 

Neville

[00:01:04] Thank you.

Paskvan

[00:01:05] Thanks so much, Kent. 

Schmidt

[00:01:08] The reason that I asked these two talented partners among many partners I work with to join me for this episode is because of the unique perspective that they bring, not only working with in-house counsel as Dorsey partners, but in their prior uh, uh careers, uh prior phases of their careers being in-house counsel. So, I think maybe, just so we have a little bit of context, why don’t you both introduce yourself, uh, by telling us, what do you do at Dorsey, but also give us a brief overview of your history as uh, an in-house lawyer, and that will give us some context for our later discussion. Kimberly, want to go first?

Neville

[00:01:58] Sure. Uh, so thank you for having me on your show [laughter]. And uh, I was a Dorsey partner and practiced for about twenty years. And had an invitation from my favorite client who was a publicly traded client, uh Franklin Covey. And you probably know them for the Seven Habits of Highly Effective People. And I had an invitation to go in-house and head their legal department. Which I did for three years, and, and loved doing so. Um, I figured out a lot about myself, which is that, I like the courtroom as much um, as I love the boardroom. And really missed being in court. So, came back to Dorsey and returned to a Litigation and Advocacy role. Um, and uh, hopefully, learned a lot, and some new tricks along the way. So uh, that was my experience. I served as a head of a legal team of seven. We did operations in about ninety countries. And uh, publicly traded, very sophisticated, interesting business. So, learned a lot. 

Schmidt

[00:02:55] I, I know you as a litigator, but during that time, you were, I assume, based on your description, were responsible for both litigation and all types of non-litigation matters, right? 

Neville

[00:03:06] Yes. We responsibility for all legal affecting the company worldwide. Um, which is, you know, part of the joy of being in-house. You are the real estate lawyer. You are the employment lawyer. You are the IP lawyer. You know, you name it. Um, the whole firm and resources at Dorsey and Whitney, which I previously relied upon, for expertise, they weren’t with me in-house. They had to be in my little head. So, that was, you know, part of the learning experience always, is you uh learn to be very well rounded in your skillset.

Schmidt

[00:03:38] I, I’m sure, and I am very eager to hear about some more things related to that. And we’ll, we’ll get into that shortly, but Bonnie, lets, lets hear from you about your pre-Dorsey life as in-house counsel.

Paskvan

[00:03:53] Sure.  So, like Kimberly, I was a partner at a different law firm for several years before I went in-house twenty-six years ago, eight months pregnant with my first child. So, I was an in-house for eighteen years. Fourteen of them at a publicly traded telecom company. And the last two, of which, I was a Chief Legal Officer for a wireless entity, and then I moved over to be General Counsel for an Alaska native regional corporation for about three years. And then moved over to Dorsey eight years ago. So, a little bit more time as outside counsel but almost half and half, inside and outside counsel. Which I think, like Kimberly, you learn uh, a lot of things when you are Chief legal officer for a corporation and it has an incredible range of needs, and it definitely helps you be better issue spotting and looking at things from a more wholistic stand point than you do when you are an outside lawyer and folks tend to look for more narrow answers in  general. But, now here in my role at Dorsey, I find my role is often outside GC, and I’m being used in the same way. And I am using the Dorsey platform to help clients with that crazy myriad range of issues that a lot of the, especially like the Alaska Native corporations have because they do business, some of them, in dozens of countries around the world, in all fifty states. So, they have very complex needs that you wouldn’t necessarily appreciate if you’ve never been in-house working it. So, many different kinds of issues and risk spotting. 

Neville

[00:05:25] That’s very helpful context, and you know, I’m thinking if this saying and I probably should have looked it up, to have right attribution, um and have the saying exactly right. Maybe you can help me? A little trivia at the beginning. Have you ever heard the saying, If you want ask, if you want to learn about water, don’t ask a fish?

Neville

[00:05:43] [laughter]

Paskvan

[00:05:43] [laughter]

Schmidt

[00:05:44] I don’t know. 

Paskvan

[00:05:45] [laughter] I don’t know that saying, Kent. 

Schmidt

[00:05:47] Ok. I have this recollection of it, but it comes to mind because I’m the fish in that. I spent my entire career at Dorsey. I’ve never been in-house. And, so I want to hear genuinely from you. Not just as a podcast host, but as a Dorsey partner, always wanting to learn about how better to understand what the in-house life is like and what the role is like. So, why don’t I uh, toss it open with, uh toss a question with a wide-open topic, um, what surprised you most Kimberly about going in-house when you crossed that line and you go from being a seasoned litigator to being a, uh ,in one sense jack of all trades, as you described. Um, what were some of the surprises and adjustments? And I’m sure something to do with time sheets will come up as a uh, as a positive.

Paskvan

[00:06:46] [laughter]

Neville

[00:06:47]  Um, it’s funny that you mentioned time sheets because my biggest surprise is that I think that there’s a common misconception that inhouse is a lifestyle choice or that, you know, you have a good work\life balance. Um, you know, I think that is potentially true if you are in a large sophisticated legal department where you can compartmentalize or, or have lots of support. But for most people that’s not the case. Most of us work hard. Very hard. And in fact, I, I worked, in my view, harder than I did in firm life. Um, and it’s not that I wasn’t productive in firm life, it was just that, you know, you could, you know, we had over a thousand employees. Any given day someone can face an issue whether it was sales they wanted to close. Uh you know, employee dispute. You know, it could be anything. The interests are as broad as there are people and you are really constantly accessible to, to people and if they need your  help they need it now. Um, and you are not blessed with three or four floors of help. You might have three or four people if you’re lucky. And most of the colleagues that I talked to, that was their experience as well. They were very, very busy people who are constantly responsing or being responsive to the business and working very hard. So, that was the biggest misconception that I would, you know, steer anyone away who’s, who’s considering you know that aspect of career change or thinking that is a solution. You really are, if you’re lawyer and you’re dedicated to your craft, you’re on the clock. 

Schmidt

[00:08:21] That’s, that’s a great point. Bonnie, anything to add along those lines?

Paskvan

I couldn’t agree more emphatically with Kim [laughter]. I definitely worked as hard or harder and traveled as much or more in-house. And so, I think there’s a lot of kind of holy grail. Oh, get to BGC and it’s all gonna be sunshine and roses. And it can be. And it’s wonderful to be on a team. I would say the biggest thing I miss about being in-house is, is folks reluctance to have the billable hour meter running when they contact me, which they don’t have that pressure if you’re in-house and you’re embedded. So, I think that’s the biggest change. And I think what surprised me the most about going in house was the shifted lens that I was expected to take business realities and risk into account in everything that I did. It changed a focus from legal advice to overall enterprise risk management and how is my advice fitting in with our business plan our business strategies. How can I help avoid litigation? How can I better automate the contracting practice? So, like at, uh, the publicly traded company, I then work to create sixty different templates so I wouldn’t have to keep inventing the wheel each time and that those processes can be faster for the business team. Set up checklists. Created a PowerPoint on how to read a contract for non-lawyers. Went to risk management conferences to understand better. Came back and said okay, now all our operating lines, I want each of you to do an enterprise risk management overview. Pick your top ten risks. What are mitigable? What are not mitigatable? Are we thinking about those things? And I got a lot of push back on that one. Particularly from certain folks who said, oh, it’s a huge wase of time. And then they came back to me and said, you know what, that made me think about things in a very different way. And, thank you for that exercise. So, it was a big shift in role from, here’s my legal advice. You go plug and play it into your enterprise. To now, I have to think of things in a much more global way.

Schmidt

[00:10:27] You know, I heard, because I spent my entire life at Dorsey, that at other firms with other partners, there’s sometimes tensions that arise between outside counsel and their clients in-house. It never happens at Dorsey, certainly, but um, any insights on why those tensions can sometimes arise? Maybe specifically stem, stemming from not understanding the pressures and challenges of one another? I’ll throw that out to whoever wants to take it. 

Paskvan

[00:11:06] So, keeping it anonymized, [laughter]. Um, I, I was surprised by outside counsel’s lack of caring at times about the budgetary pressures. And lack of advice about impact on brand and reputation and in pushing for litigation versus how is this gonna make us look in the community. So that was interesting and surprising to me. Another big surprise in tension with outside counsel is when one actually when to my associate and said, hey this board member is under investigation by this other entity. Which of course, I should never have known. And should never have heard that. So that person was on my do not hire list because anybody that would break privilege in that way about another company’s secrets and embarrassing facts, how would I feel that he would be more aware of our corporation?

Schmidt

[00:12:07] Yeah. Uh Kimberly, anything to add on why these pressures and challenges sometimes manifest, and tensions between in-house counsel and outside counsel?

Neville

[00:12:19] Yeah. I was very fortune because I had excellent firms that, to work with, and generally things ran smoothly. Um, I can say though, a couple sticking points in, you know, in our nature as a publicly traded… information must be passed on immediately. And that’s important to my, you know, especially if you got a disclosure deadline coming up. Something that needs to be reported. You know, you absolutely must have current information. So, the only time I really recall getting testy with somebody is if you sit on something for two, three days, that can be critical to your client for a lot of reasons. Whether, not just budget, but whether or not they have reporting obligations elsewhere. You know. Or if, perhaps they are a government contractor. Perhaps they’re bidding on a big RFP. You know, there might be things that they need to, to know about. And know about in a timely manner. So, I would say always keeping abreast and keeping current, and, and, and making sure information is reported timely matters. And you know, bills are the nature of the beast, right? Like, we all have them. We all get them. No one likes them, but, you know, if you know you’re going to blow budget, that matters. That matters in any business. It particularly matters in those that report.

Schmidt

[00:13:27] Yeah.

Neville

[00:13:28 ]That they’re honestly…and I shouldn’t say honestly…of course they are being honest, but that they are accurately reporting their revenue and their, and their costs. 

Schmidt

[00:13:34] Ok. That’s very good answers. And you know, I think they…the word budget and costs have come up a couple of times and that’s really my next area of question because we spent a lot of time talking about how much something is going to cost. So, let me give an in-house…I’m sorry, outside counsel perspective. So, here’s the fish speaking now. Um, from my prior metaphor. Um, preparing a budget, in my case, for litigation just involves so many inherent imponderables. Umm, tell me how many depositions the other side is going to want to take. Tell me how many motions they’re gonna file. You know. Are we gonna get to trial in a year? A year in a half? Um, tell me about what you’ve seen from outside counsel in the budgetary context that you really, really liked, and what has been frustrating to you. I think you already touched on that Kimberly, in terms of deviations from the budget, but maybe expand on that more. And we’re gonna be talking here about both litigation budgets and budgets from other projects. So, you know, if there’s a distinction, go ahead and identify it. But what are some things that outside counsel can do better? Specifically in the budgetary process.

Neville

[00:15:07] So, I think, really, the communication is, is key to the process, because you know, I mean, [sigh] anyone who’s, who’s risen to head legal has hopefully been around the block long enough where they’ve seen that there’s so many things we can’t control, right? Um, you know, facts change. Witnesses change. Things become bigger than you thought they would be. Or, things become smaller than you thought they would be. Um, so, you know, we all understand, there’s no crystal ball. Um, I think though, if you know you’re going to blow the budget. You know, it, it…That would not be a conversation you should hold ‘til you signed up with your bill. Get in front of it. You know, call your, call your contact and say, look we got a lot coming down. We’ve got um some filing deadlines we didn’t anticipate. You know, you know uh, other side’s not cooperating. Whatever it is, there’s good reasons why to get in front of it, like you would. And just um communicate. Because there’s usually stuff I can do on my end to make sure I got in front of it. And to plan with finance so that they weren’t surprised. And maybe there were other things I could move. Um, we had a substantial IP inventory, and that was something that, you know, we would plan more a year out. And maybe there were something that if I knew I was going to have an expense here that was unanticipated, maybe I can move something here and to a later quarter…

Schmidt

[00:16:27] Umm…

Neville

[00:16:27]…And control my, my budget, and then keep myself in good standing with my finance team, right? So, it was always, in my mind, something that, facts, you know, I was a litigator, facts are what they are. And they’re hard to control sometimes. You know. But what you can do is message them appropriately. So, that would be my advice, is get in front of it, really.

Schmidt

[00:16:48] Bonnie, let’s hear from you on the deals side. Um we talked a little bit about litigation budget, but I know budgets requested in all types of M&A and other smaller transactions, and I have far less experience with that, but sometimes when I am asked for a budget, even on that, I think, well, it’s sort of like how many days does it take to go and buy a used car? 

Paskvan

[00:17:15] [laughter]

Schmidt

[00:17:15] You can do it in an afternoon. Or you can do it in three weeks. And you can take it to three different mechanics. And I know that’s probably a crude metaphor but uh, in terms of doing transactions, how much due diligence is the appropriate amount? How do you address those issues with budgets on uh, M&A deals, or other transactions?

Paskvan

[00:17:45] It’s probably the hardest thing for me to do, is to, to realistically and accurately nail any budget with certainty and have it stick to that, because of the thousand variables there can be including who’s opposing counsel, and how organized are they. And how organized are both deal teams to process information, bubble issues up to the top. Timely? How organized have their land records been? How organized is their IP program been? And so on and so forth. So, one of our retired partners said, Bonnie, whatever you think it will take, multiply it by three, [laughter] and then you’ll be probably closer to what it actually takes. And like in litigation…

Schmidt

[00:18:26] It sounds like a good rule of thumb for litigation budgets too, right?

Paskvan

[00:18:29] [laughter] Yeah, exactly. And you know, partly too, you know who, what is the personality of the person on the other side? How much are you going to have to chase that person to get to the answer? How responsive is your client and how organized are they in terms of doing more of the due diligence versus Dorsey doing the due diligence? And what does that all look like? So, maybe it’s a bit of a pivot, but there are certain tools that we do use at Dorsey to help bring those costs down. If you’d like me to shift and talk a little bit about that?

Schmidt

[00:19:01] Sure.

Paskvan

[00:19:02] So, I do have a lot of clients that are, most clients are price sensitive. And so, some of the things that we do at Dorsey. We have a pool of people that are called LegalMine attorneys, and I’m sure you are very familiar with Kent. So, we’re able to, they are contract attorneys. They are not Dorsey employees, and so we are able to bill them out at a much, much lower rate. But they are attorneys, so they are credentialed and they have skills. So that is one play that I use frequently to try and bring down the overall cost. Are there things that they can be doing? Like baseline benchmark policy drafting, or attend meetings and do minutes for directors, because I don’t want to use AI. Meeting notes for director meetings because you are probably breaking privilege. 

Schmidt

[00:19:49] Yeah.

Paskvan

[00:19:50] And there’s also the implicit bias issues that note takers can pay mor attention the people with the loudest voice that speak the most, and then you got a lot of issues culturally around that as well. So, that’s that…

Schmidt

[00:20:02] By the way, that sounds like another podcast episode[inaudible] 

Paskvan

[00:20:03] Indeed. Indeed. For sure. So, another way to bring costs down overall, is to use AI, which I am a sceptic, and I see a lot of issues with AI but there are a lot of things that it can do well to help get things to a baseline for an attorney review to be appropriate. So, that’s another tool that we are using at Dorsey pretty extensively and doing a lot of training and testing and human review on all of that. But those are ways to try and bring the overall cost down.

Schmidt

[00:20:37] So, we’ve talked about thinking about costs from a perspective standpoint as a certain point I’m sure one of the least uh, enjoyable aspects of in-house counsel is reviewing bills, retrospective [laughter]. Not what’s going to be on, what is on the horizon and needs to be done, but what we’ve done for that last month. Um, can you each just speak briefly to, uh the things that are sort of the red flags or the, I don’t know, anything that goes from an annoyance to a we will not pay for this because this is this is this is incorrect, and this just isn’t right. What are some billing do’s and don’ts that outside lawyers would be uh prudent to keep in mind, from an in-house perspective?

Paskvan

[00:21:37] Kim, do you want to take this first?

Neville

[00:21:40] Sure. A couple of thoughts. I, you know, and maybe they’re pet peeves, but they are pet peeves that I heard from colleagues that interact with as well.

Schmidt

[00:21:47] I want to hear it all, Kimberly. [laughter]

Paskvan

[00:21:49] [laughter]

Neville

[00:21:52] My thought would be excessive timekeepers or changing of timekeepers. You know, when it was frustrating to me when I hire attorney A, and attorney A has maybe attorney B or C supporting him or her. And then you know, I didn’t like a feeling that I was getting practiced on, so, let’s see who we can bring in, who’s really junior, and let them try our case out. Or, hey let’s, you know, so-and-so’s got a better deal to work on, so, let’s bring in this person. That is, you know, that gets transmitted in your bill. Excessive time for learning curve. Excessive time for coming up to speed for bringing people on. You should be able to hire your team, really day one with confidence. So that team is going to take you through to, to the end of your problem. And so, I would red flag that. That would be something that would matter to me. And also, just the notion that I was the training ground would, would also be a red flag for me. I, I was one personally, and I don’t know if everyone shares this view, but personally, I was willing to pay for partner time. You know, if I had made the decision that I was going to refer this out, it was either that I felt that I didn’t have bandwidth, expertise, or was something that I needed outside eyes on for, you know, whatever reason. And if I was going to bite the bullet and spend that money that way, I wanted to pay for the right answer. Not for people to think about, you know. Or to train on it or analyze it. You know, um, I wanted to pay for a result I had confidence in. So, that would be my red flag. You know, bill…bills are what they are. They are a cost of doing business, but you know, if it were an easy problem to solve, I would have handled it myself, right?

Schmidt

[00:23:34] Right. Right. Um, Bonnie, anything to add on reviewing bills and uh, red flags or pet peeves or both?

Paskvan

[00:23:42] For Sure. Sure.  And having been on the other side of a desk for eighteen years and reviewing bills and hiring and firing law firms, for sure, to me, one of the things lawyers need to think about is this is kind of like your monthly calling card to your client. You’re communicating in a very detail with them  about what you’re doing, and I think a lot of lawyers don’t think of their bills in that way. So, some of the things that I found really annoying is if every task was always a .3-hour minimum charge. Hard to believe. Really? You know, everything took eighteen minutes? I don’t think so. You know, or, or just the repetitive day after day the exact same narrative description. Like, how is it you spent exactly the same task day after day after day? Were you being efficient? Were you really thinking about it? How come it took so many days to do the exact same thing? It just would surprise me. To Kim’s point, about change out in teams, unfortunately, you can’t always control that. People come and go, and so, as someone who’s been looking at those bills on the other side for almost half my career, I’m very mindful about doing no charge time, and writing off time and showing it to the client so that they are not thinking that they’ve had to pay someone to get up to speed when, unfortunately, someone’s been poached or went on maternity or a thousand different reasons why someone might be unavailable. But you thought when you staffed that team up at day one that they were going to be your team for the whole project, but life happens. So…

Schmidt

[00:25:17] Uh Bonnie, Bonnie, could I just interject on that, a question? Do you want to see on a bill that uh the work was done, but as a courtesy that we are doing a no charge? 

Paskvan

[00:25:28] Absolutely. 

Schmidt

[00:25:29] Yeah.

Paskvan

[00:25:30] To me, I think that if you are giving someone a gift, they should be aware of it. And, and that was one of the things that I changed out. I was doing all discounted hourly rates and then I realized people then just thought that that was my rate. So now, I’m using my regular rate and saying the courtesy discount on the front, so people understand I’m actually giving you my time at cheaper than what I charge other people.

Schmidt

[00:25:51] Right.

Paskvan

[00:25:52] So, that they realize, and often that’s on a progressive volume discount, as you know, can, Kimberly,  you know, if we, if people buy more of your services, then we’re, we’re, often more interested in doing progressive volume discounts. So, folks will hire us to do more and more of what their needs are. 

Schmidt

[00:26:06] Or as I call it the Costco discount [laughter].

Paskvan

[00:26:08] [laughter]

Neville

[00:26:08]  [laughter]

Paskvan

[00:26:10] Okay, never thought of us in that way, but sure [laughter]. Yeah.

Schmidt

[00:26:13] [laughter] Good. Um, you know it comes to a certain point in time in many attorney client relationships where it becomes clear that this is not a right fit or excitations are not being met. And uh, I’d like to hear on this rather delicate topic of, how do you break up? Uh…

Paskvan

[00:26:35] [laughter]

Schmidt

[00:26:36] Uh, do you think that most, do you or when you were in-house counsel, most clients do the quiet quitting or is it better to just be upfront and say we won’t be using you again for this work, or we won’t be sending um, we would prefer not to work with this particular lawyer at your firm. Um, what’s the level of discussion regarding quitting in whole or in part. In terms of recurring engagements?

Paskvan

[00:27:09] Um, so I am deeply grateful when any of my clients are clear enough with me that, that a relationship isn’t working with any particular person, And so, I am always asking for good and bad feedback. How did we do on this? Is there something you would like handled differently? How are things? So that’s one way to try and get that feedback. When I have broken up with clients, often it’s where it’s just not going well. They really can’t afford this service and so they are not giving me enough time to be responsive and do a good job for them. So, I’ve gone to them and said look you go this annual renewal cycle or RFP cycle or whatever, I’m not going to bid for your work anymore This just isn’t working. You’re not using me enough, that I feel like I’m going to avoid malpractice exposure. So, here are some referrals to folks that are cheaper, not better, but cheaper. And I hope that works out for you, but this isn’t working. I can’t have you call in the heat of the fire with no warning, and the answer needs to be right now without research. I just, it doesn’t work. And I don’t feel like I can do my best lawyering that way.

Schmidt

[00:28:22] Yeah. That’s a good perspective. Kimberly, anything to add on that?

Neville

[00:28:25] Uh, I agree with Bonnie. And, you know, and I think Bonnie and I practice similarly both internally and externally. And I always, when the, if I had a problem, I was very fortunate that I didn’t have a lot of them because we had really great firms and great partnerships that we worked with. Um, but, it, it really didn’t bother me to call the relationship partner who I usually had a relationship with outside of work. You know, I knew them personally as well, and I had known them for years and by reputation as well. And it didn’t bother me to call a relationship partner and say, we didn’t get a good experience on this one. And you know, and usually I found that, you know, not only would I usually get, you know, some type of discount or something to make it right, ‘cause people didn’t want to hear that, but people were grateful to know that because as a relationship partner, when you’re building your own brand and building your own firm’s brand, you don’t want to be represented by someone who doesn’t represent who you are. So, you know, the one or two times I had to do it, I, to me, honestly, was very mutually grateful experience. You know. People were glad to have, uh, feedback.

Schmidt

[00:29:30] Well, the primary purpose is to hear your perspectives of as in-house counsel, but I find it almost irresistible to not say that the quiet quitting is, is really frustrating because sometimes you work really hard to please a client and then you think, oh, I wonder why they’re sending their work elsewhere. I wonder, is there something that we could’ve been doing differently. And you know, is it fees? Could we have offered a discount? Could we have staffed it differently? And so, I appreciate what you’re saying Kimberly, about a candid conversation. And I think the uh, the usual uh, principle, the communication and being upfront about things is usually the best approach, applies here. Let me ask a question that is very pertinent of my practice, this podcast and things that I write and speak about. And that is the uh, prophylactic aspects of the job of in-house counsel. Specifically, avoiding litigation in the future. Figuring out where the trapdoors are that are going to result in litigation. Um, as you know, I spend a great deal of time  thinking and talking and writing about avoiding litigation. Um, what are some, and I think it’s a concept that everyone gets, at least from a commonsense approach. It’s like preventative medicine to prevent the, you know, a more catastrophic event down the road. What are some ways that you think in-house counsel and outside counsel can work together, specifically on avoiding litigation? 

Paskvan

[00:31:16] So I think one of the ways is to definitely try and get, to the extent the company has any leverage at all, to use their own documents rather than the other parties’ documents and have them be clear and understood and have things like dispute resolution. Are you gonna be internal escalation before you go to mediation or arbitration or litigation? If you’re going to go to litigation or arbitration, where would the venue for that be? Would it be in your backyard or would it be, you know, one, one was like in Europe, and I think I don’t know how that’s going to work out for the client. I’m pretty dure it’s going to work out better for the other side, if it’s in their backyard in Europe. So those kinds of things I think are worth investing in. So, for, for, better or worse you can always make someone else take your paper. If you’re a big Franklin Covey, you’re going to have a lot more market power than a small entity, right? And then or if it’s like a shrink licensing agreement that, you know, you’re not going to negotiate with Apple to get different terms on buying a set of Apple phones. But to the extent that you can use your own paper and understand them, and to have provisions that you like, that are clear and you’re happy with, I think that’s one way to make sure that there truly a meeting of the minds, and your client understands what they need to do and what the other party’s going to do. So, that’s one way. 

Schmidt

[00:32:39] Very good. Kimberly, and to add from you?

Neville

[00:32:41] Uh, yeah. I mean, so I think you spend pretty much, you know, twenty-three or your twenty-four hours a day when you’re, you know, in-house or GC at a legal trying to make sure you’re effectively mitigating risks, which includes litigation against the company. And I think the best thing you can do, at least my approach was, you know, legal as a business partner was my philosophy. And you know a lot of legal teams will want to sit in isolation and, no, you really have to know the business. You have to understand what you, what you buy, what you sell and who your players are and how they work together. And that’s important. And so, treating legal as a business partner and approaching, you know, in-house practice with mindset is helpful. Um, And, in my mind it just, you know, prevention is always key, you, the best, the best way to, to not get into a fight is to not be there. So, you know, how do you keep your files? How do you keep your, you know, are you up to date? You know, do you attend to your CLE’s and know about your current employment regulations? Do you know about your current environmental regulations? What affects your business? And how do you know about those things? And one of the things I appreciated from outside counsel, that surprised me, um, going back to your original question, was, you know, we get the… the blogs, and I used to always kind of think those were really silly…When I was practicing, I was like, I don’t like them [laughter]…and I really liked those, and my colleagues really like those. I treated it like the newspaper. It was, you know, hey, there’s a new statue coming down. I didn’t know about this. Hey, I do have people in California. I need to know about this. You know, so I, I appreciated that partnership with, with just getting people I thought were kind of looking out for things that might affect my business or letting me know about it. 

Schmidt

[00:34:21] Yeah. Yeah. Prevention is, uh, you know, the old ounce of prevention is worth a pound of cure. And the challenge in our world is that things are changing so quickly. You know, new regulations. New restrictions. New…the landscape is constantly changing. So, collaborating with outside counsel and having them be eyes and ears on what’s happening and what you need to know…uh, super helpful. Well, it’s great to hear that. Can’t believe…because we put a lot of effort into those types of communications. 

Neville

[00:34:56] And I really appreciate it. And I, I mean that genuinely. I really appreciate it. And I, we, even, you know, when certain things would come down, um, and we have a change of administration, there’s a flurry of activity that goes with that, regardless of what your business is. And you know, we found it was very easy to subscribe to firm logs and firm and firm information, and get, you know, it was a really quick way to get your headlines. And you can always just say, that doesn’t apply to me [inaudible], right? But if you needed to know more about it, it was an easy click. It really was.

Schmidt

[00:35:28] So, I had in-house counsel ask me, not too long ago to…I’m switching subject here, to uh, to a new topic… But to illustrate this, in-house counsel asked me a question or a request I’ve never had before, which is to update the re: line on emails to reflect specifically what the topic was. You know how the topic evolves in email over several weeks? And this in-house counsel wanted to have the, always make sure that when I go to search for an email, I’ll be able to find it with greater ease. And I thought, that makes sense. I don’t do that. Um, and so it brings to mind the question of, perhaps not that specific, or that out the ordinary, are there any habits or even small things that outside counsel can do, perhaps, that we haven’t talked about? We’ve talked about some broad issues and communication and all of that. But are, these sort of very small ways, in which um, outside counsel can make your life easier as in your in-house role? 

Paskvan

[00:36:50] So, I’m smiling because that’s one of my biggest pet peeves, Kent, is that people don’t update the subject line as particularly if it still has exclamation point and urgent, and the urgency went away three months ago. [laughter]

Schmidt

[00:37:02] That’s right.

Paskvan

[00:37:03] I don’t think it’s still urgent

Schmidt

[00:37:04] That’s right. 

Paskvan

[00:37:06] So, I’m right there with whoever asked you to do that, because I really do like the subject line to be whatever it’s about. Because when I saw the emails, that’s a helpful way to find whatever it is in the 10,000 emails a week…

Schmidt

[00:37:19] Yeah.

Paskvan

[00:37:20] …and it seems like we all get now.

Schmidt

[00:37:22] And just to interject on that…

Paskvan

[00:37:23]Yeah.

Schmidt

[00:37:24] For outside counsel, the subject line in your email shouldn’t be your client’s name. Because that helps them exactly zero. So…like from our perspective it’s the clients name that’s the subject because that’s the, at least the client. But if the subject line is your client’s name, that doesn’t help them at all. 

Paskvan

[00:37:44] Yeah. But…so I would say, the biggest thing that in-house people forget almost every single time to tell me is, what’s my deadline. So, as outside counsel, I’m constantly saying, when do you need this by uh as an aspirational goal or hard deadline? And what exactly do you want as a work product? Because in their mind, they may be very clear. They just want a phone call. They want an email. They maybe want a memo. Often folks will say, I want your opinion. They really don’t want our opinion unless it’s for a bank closing or something because that’s such a stylized work product that people use that word in the colloquial sense, not in a law firm sense. But I feel like that’s one communication piece that often falls down is, what is it exactly that you need and when do you need it by? And I think that’s one thing from having been in-house for so long that I’m a lot more sensitive to that, really. We only need to answer the questions being asked. It doesn’t matter, all these other questions that I might find super interesting. If the client has a specific issue they want answered, then we better focus on that. And what kind of work product do they want? Because I don’t want to do a memo if really all they want is a phone call, or if all they want is three bullet points. And I think in-house people don’t always have the vocabulary. So, another thing that I often ask is if they’re going into a meeting or they’re interacting with some third party, if it’s an area they’re not super comfortable with, do you want talking points? Do you want me to go write the email? Do you want me to go write the letter for you? Because for example, say someone unfortunately is getting terminated, that may be something labor and employment lawyers help with every day of the week, every day of the year at Dorsey. But the in-house person, that’s almost always going to be uncomfortable because it’s someone they know. Do you want talking points? And it’s surprising to me people don’t always ask for that kind of specific work product, although they would find it incredibly helpful and their face looks so relaxed when I asked them…yes, thank you. That would be so great because then I can go in the meeting prepared and know that I’m not going to say something wrong that will get me sued. 

Schmidt

[00:39:58] Yeah, Bonnie, you do that so well. I know. And I think the way I would summarize what you just said is sort of a concierge mindset. You know, like not like doing what you are asked, but coming alongside and figuring out, hey, can I,  you know, at a nice hotel a concierge would say,  do you want dinner reservations?  Can I help you? Here’s an umbrella, right? So, you appreciate that type of service, instead of just, yeah, here. Bathrooms are down the hall, right? [laughter]

Paskvan

[00:40:25] [laughter]

Schmidt

Kimberly, I doubt you have any pet peeves or there’s anything [laughter] Please.

Neville

[00:40:28] [laughter]

Paskvan

[00:40:31] [laughter] 

Neville

[00:40:34] You know, And like I said, we were incredibly fort…I mean I felt…I really enjoyed my time in-house. I had a terrific client, and I had terrific partners with my outside counsel and my team. Um, you know, so, it was great, you know, but a couple things that, you know, that I would give people as tips, I AGREE WITH EVERYTHING Bonnie said. I mean, you know, knowing because you’re just processing mountains of email. And Kent, I agree with what you said too. Do I mean, getting your 50th email that day, that day that says contract. You’re like, which one? There are 85. I’m [inaudible] [laughter] Yeah. So, it just kind of helping people stay organized is, you know, and how would you like to receive things and just reciprocating, that is very easy. A couple other tips I would give is one is, is you know, I would always say, you know, when we were at, when we were at Dorsey, the expectation is you’d hire Dorsey, you expect a product for your problem. And that’s not necessarily the case. Not every problem is a problem that needs to go to Dorsey and Whitney. Not every problem is a problem that needs to go to a big firm. And not every problem requires a network product. Sometimes we’re okay with the C+. You know, this is a pass\fail situation. We just need to bounce it off of somebody. So, really understanding up front, what does your client want. Like Bonnie already said, that, you know, and is this a situation where we’re just looking for some kind of, you know, quick, let’s think about his quick, or am I on the right track quick? Do I need to think about something I missing here? As opposed to I need the full treatise. So, understanding what your client wants and, and being willing to give the B- or C+ product occasionally, that will help you be a repeat player. You know, and then I guess the other thought I would say too, and this is just my…I totally respect it’s business judgement. I get that. Ok? It’s always it’s always the business judgement. Whether it’s the CEO, CFO, whoever has to make the budget number. But you have an opinion and you’re hired not just as…you’re hired as a counselor, right? And part of your job is to counsel companies to make good decisions. And you can lay out my three or four options and say, yeah, and, and honestly saying I don’t know is also an option. You know, and, but just getting, uh you know, here’s the Cheesecake Factory menu. Order what you want. That’s not helpful. What would you do if it was your money? If it were your shareholders? Or if it were your employee or your business? What would, what would be your best instincts here? You know, I’m paying you because I trust you, you know?

Schmidt

[00:43:02] Yeah.

Neville

[00:43:03] So, that would be a tip that I felt like those who got my repeat work and got priority for being shortlisted were those who would put a stake in the ground.

Schmidt

[00:43:12] That’s really good advice. And sometimes it’s difficult, you know I think outside counsel has this sort of instinct of self-preservation, that sometimes keeps us from saying I’m going to make the tough recommendation here, but you have to, at some point in time, in some of these cases. So…

Neville

[00:43:32] It’s just that. It’s a recommendation…

Schmidt

[00:43:35] Yeah.

Neville

[00:43:36] …and people, people disregard recommendations of outside counsel every day. And they disregard our recommendations of inside counsel occasionally too.

Schmidt

[00:43:38] Right.

Neville

[00:43:39] You know, it goes with the business and its just…but you, you need to make your best effort to make your best judgement for your client, right?

Schmidt

[00:43:50] Yes. Well as I predicted, this conversation has been invaluable to me. I have, I’m going to listen to it again, not just for quality assurance purposes, but because I think there’s several tips and things that I can pick up and implement in my practice. And it’s precisely what I anticipated would be the case when I thought of having you both as a guest. So, I want to thank you both. But before you go, we have a segment at the end of SharkCast that we call the Deeper Dive, where we talk about something non-law related. And so, I just love to travel so much that I think I’ll just throw out the question here and see what your responses are. Is there any destination or place in the world that is, uh at the top of your travel bucket list?  Haven’t been there yet, but uh, would really, really like to go??

Neville

[00:44:52] Wow. Theres so many I’d like to go to. We went to Italy last year, and that was the bucket list item for me. So, I feel like I checked that one off, right? Uhh…

Schmidt

[00:45:01] What cities?

Neville

[00:45:02] …But I think my uh, eldest has an interest in um, service and is going to Thailand this year. So, I think I’d like to go back with her, and…next year when she returns.

Schmidt

[00:45:17] Okay. Excellent.

Neville

[00:45:18] Try that angle.

Schmidt

[00:45:21] What cities did you go to in Italy?

Neville

[00:45:23] We went everywhere. We were on the high school trip for class. So…Yeah. Everyone, this is the other tip. If you have kids signing up for class, have them take Latin. 

Schmidt

[00:45:33] [laughter]

Neville

[00:45:34] So…[laughter] but yes, we saw Rome, we saw Florence, we saw Venice, we saw Assisi, we saw, uh, Verona. We were all over the place in ten days. It was wonderful.

Schmidt

[00:45:45] It sounds amazing. And so, Thailand, is that scheduled or is it just…

Neville

[00:45:49] My daughter is going this year as a part of his, youth service project.

Schmidt

[00:45:53]Oh, that’s this year? Okay.

Neville

[00:45:55] This year. And I think she’ll return next year ‘cause she’s very enthusiastic about that. So, Id like to accompany her there one day. Yup. It’s wonderful work they do. So…

Schmidt

[00:46:03] Terrific. Bonnie. Any? Youree in Anchorage, it was beautiful, amazing scenery. Amazing adventures. All sorts of things to do. And I know that you uh, have a, a very active lifestyle, capturing all that Alaska has to offer, but do you have any place that, that is on your bucket list?

Paskvan

[00:46:24] Sure. So, Im excited, this weekend I will be in Seattle applying for dual citizenship to be Croatian as well as American citizen. So, my hope then is…it’ll take a couple of years…but my hope is that I’ll be and EU citizen and have my Croatian passport and be able to spend more time along the Dalmatian coast trying out all the great Croatian food and wine and beaches. So, grandpa came over in 1909 through Ellis Island when he was nineteen. His brother was sixteen. We got the ship record. Ended up here in Alaska. He was a blacksmith, worked in AJ goldmine. And so, it’s kind of a fun reverse path, now to go back, and so my kids and I are all applying and so will all my siblings and nieces and nephews. So, it’s back to the home country, as it were. And then I’ll be visa free to, I think, one hundred and eighty-seven locations. So, uh it’s, it’s a cool thing because both kids did the Russian K through twelve program here in Anchorage. And then my son did Bosnian, Croatian, Serbian as a minor at Michigan. And Savannah did three more years of Russian in college. So, I figured, you know, the world will be their oyster too. So, anyway, that’s the big travel bug on my agenda, to achieve that. 

Schmidt

[00:47:34] Wow. That’s very ambitious. Well good luck on all that. I’m not sure what all that entails, but, that, that would be pretty cool. Um, so…and I think those trips that you are connecting to prior generations, and brining, you know, immigration full circle, those are pretty cool. Yeah. So…um, so, well, this has been a terrific opportunity for me. And I really enjoy the conversation, but our time is up. So, with that, Id like to thank you both for being here on SharkCast today. And to our listeners for also tuning in. As always, I’m very indebted to the extraordinary team at Dorsey and Whitney for making this podcast and episode possible. For more resources on litigation risk, and litigation management, please go to Litigationrisks.com, where more information can be found on these topics, including a book on managing litigation risks, written by yours truly. Until next time, my friends. This is yet another reminder that there are a lot of sharks swimming out there in the murky waters. So, swim safely.

Voiceover

[00:48:45]This podcast is not legal advice, and does not establish an attorney client relationship, or create any duty of Dorsey & Whitney LLP. For those appearing in this podcast. To anyone. Although we try to assure that the content of this podcast is accurate, comprehensive and reflects current legal developments, we do not warrant or guarantee those things. The opinions expressed in this podcast are the opinions of those appearing in the podcast only, and not those of Dorsey & Whitney. This podcast is considered attorney advertising under the applicable rules of certain states.