The Best Defense

Human Resource Executive® presents an exclusive list of the nation's most powerful employment attorneys, along with experts' tips for hiring your own.

Sunday, March 2, 2008
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When you're in trouble, finding a good management attorney is a lot like finding a good doctor.

You have to go for the best.

And like a search for a doctor, it's risky to rely on dumb luck. You have to be willing to do some real research, and to ask some tough questions. It takes work.

But if you find the right lawyer -- someone who can help your company avoid a potentially devastating trial, or win it if necessary -- the effort will be more than worth it.

In August, Human Resource Executive® invited you to meet the top 10 plaintiffs' attorneys. Now, we present the top 50 management attorneys, including the top 10 cream of that crop in lists that were prepared exclusively for the magazine by Lawdragon, a Los Angeles-based networking site for lawyers and clients.

Since these lists represent the best of the best, and embody the qualities that HR leaders should look for when picking a defense lawyer, we figured we'd ask several of those featured for their own tips on how to find a top attorney.

They all agreed that while skill and experience are essential, a good management lawyer is someone who becomes a partner with the HR executive, someone who fully understands and is committed to the company's objectives.

"What you ought to want," says William J. Kilberg, a partner with Gibson Dunn in Washington, "is somebody who is going to take over your problem and make it their problem, and do everything they can to resolve it in a way you're comfortable with."

That is not as easy as it sounds. Too often, the attorneys say, HR leaders pick an attorney on someone else's recommendation, without doing much research. By the time they discover the lawyer isn't a good fit, it's often too late.

"Make sure the lawyer will not view your litigation as a law-firm asset -- as a cash cow to be milked," says Paul Grossman, a partner with Paul Hastings in Los Angeles.

That kind of lawyer, he says, encourages a client to "litigate like mad, but then, after running up high attorneys' fees, says, 'We better settle.' "

To weed that kind of lawyer out of the mix, Grossman recommends calling the lawyer's references and "quizzing them about every aspect of the relationship."

Ask about the lawyer's "competence, service, cost and effectiveness," he says.

Those kinds of questions will also help the HR executive find a lawyer "who views things entirely from the client's perspective," Grossman says. Someone who, for example, might recommend an early settlement in a risky case, to save the company money.

By the same token, he adds, it's up to the HR leader to ask the attorney the hard questions. How much will the attorney's fees be through the request for summary judgment? What are the odds of getting the case thrown out? What are the odds the company could win a trial, and how much would that cost?

HR executives should press the lawyers on the cost and odds of reaching each step of the case, says Grossman.

The Right Fit

According to Kilberg, there are specific things HR leaders need to keep in mind to make sure the lawyer has the approach that's right for the company.

"Are you looking for a bulldog, or are you looking for a charmer?" he says.

"What do you think you need? Are you looking for someone to resolve the problem, or do you already know how you want the problem resolved, and you're looking for someone to effectuate it?"

The first step, Kilberg says, is understanding what kind of case you have, and exactly what you're trying to achieve.

Are you seeking, for example, a defense of your core business model, or simply a quick resolution to a time-consuming annoyance? Or, perhaps you're looking for "a sensible restructuring of the workforce, or the acquisition of a company and the integration of two workforces."

Once you have a good understanding of what you specifically need, you can look for a lawyer who will help you meet your objectives, Kilberg says.

He suggests looking at a prospective lawyer's resume to identify other companies he or she has worked with, and then calling HR executives there -- hopefully, people you know.

Ask those executives probing questions, he says. "Were these cases settled? Did you feel you paid too much or too little? Did he work well with your people? Did he work well with opposing counsel? Is this somebody who will tell you what you need to know, or is this somebody who will tell you what you want to hear?"

Another question to ask: Was the lawyer arrogant?

"I don't think lawyers who strut and talk tough are the best lawyers," he says. "You want someone who can communicate with opposing counsel. You don't want to get into a war unnecessarily. You don't want the other side out to get you because they don't like your lawyer. It happens all the time."

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Lynne Hermle, a partner with Orrick, Herrington & Sutcliffe, in Menlo Park, Calif., says HR leaders should look for lawyers who want to understand a company's business goals, and how the litigation fits in.

The lawyer, she says, should be asking questions about your product cycle, your culture, how the litigation might affect recruiting.

"The lawyer you hire has to be a match for your business needs and philosophy," she says. "Sometimes, not every lawyer is right for the job."

The top attorneys say it's essential that a management attorney have experience in the specific kind of case he or she is being hired for.

One of the worst things is to have a lawyer who has handled only one or two relevant cases, "and is learning on your expense," says Garry Mathiason, a partner with Littler Mendelson in San Francisco and a reputed authority on HR and employment-law trends in the United States. HR leaders should look for a lawyer or law firm that has handled dozens of similar cases.

In addition, says Mathiason, an ideal attorney is one who "embraces" the technological revolution that is sweeping HR law. There is a great deal of regulatory and other information now available through databases, and it's cheaper and more accurate than ever. But an attorney has to know how to use the technology, he says. Questions about computer use and experience will help reveal the extent of this knowledge going into the relationship.

Katrina Dewey, the CEO of Lawdragon, encourages HR leaders to do as much research as possible on a prospective attorney, including closely examining his or her resume.

One thing to look for, she says: whether the attorney chairs a practice area -- such as labor and employment -- for the law firm. "This shows the partners are recognizing that this is a substantial person," says Dewey.

Another qualification is a substantial number of years in practice. Attorneys with less than 10 years of experience "just don't know the ropes," she says. "You can be competent in 10, but you can't be great in less than 15."

Resumes will also show whether an attorney is highly rated by organizations that do research on lawyers. In addition to Lawdragon, says Dewey, the lists to look for are the Legal 500 and Chambers, and those published by magazines and newspapers.

Whether he or she is a member of the College of Labor and Employment Lawyers can be another sign a lawyer is tops, she says. Membership in the College -- an elite organization of top attorneys that admits new members, through a vote, after thorough research -- is "one of the top two or three most important things" Dewey says she looks for in evaluating an attorney.

Resumes alone cannot provide a full picture of a lawyer's qualifications, she says, "but they should give you a framework of what questions to ask."


The Selection Process

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