by Daniel DeWoskin
Frequently I find myself partnering up with different talented attorneys on challenging cases. In addition to the obvious benefits that come with shared resources and accountability, I enjoy seeing the differing approaches my colleagues have toward tackling discovery, motion practice, and trial preparation. Over the years, I have learned, sometimes at significant cost, that it takes much more planning and consideration than simply a good friendship to make a good co-counsel relationship work.
First, before agreeing to work with another attorney in a co-counsel relationship, it is important to discuss the fee-splitting arrangement. This may seem really obvious, but many people are uncomfortable discussing money with friends and may inadvertently find themselves more involved before addressing compensation. I can say from experience that these discussions do not get easier the further along as work in the case gets underway.
There are times when I call upon friends and colleagues to assist in strategic planning about a case or maybe preparation for a focus group, help for which I may or may not intend to compensate them. In all cases, it is best to discuss issues of pay and compensation at the earliest time. This is about much more than hurt feelings and if there is a problem, the choice of leaving either your collaborator or yourself feeling taken advantage of is a bitter one.
Next, thought and planning should be given to the division of the workload. As we all know, as attorneys we do not all have the same strength and weaknesses. Some of us are brilliant and efficient writers and researchers, but lack the comfort level necessary to present a case to a jury. Others may be great when it comes to taking depositions, but lack the organizational skills to best prepare a case for trial. While not all collaborations pertain to litigation, it is always advisable that when combining efforts attorneys take the time to think through the process and know who will take responsibility for each task.
The value of planning out the collaboration prevents caustic situations and miscommunications that can devastate any working relationship. I can recall times when a lack of planning has left me or my unfortunate co-counsel scrambling to accomplish a task at the last minute because each of us was unsure as to who was responsible for getting this or that done. This adds unnecessary stress to the process and can have serious consequences for the case and perhaps the friendship. Ironically, in my experience it has not been procrastination or hubris that has left us playing catch up, but instead the sense that we had so many capable people working on the case in general that everything was under control. Like everything in this business, there cannot be too much attention spent on details.
Finding people that you work well with is rewarding for attorneys. It allows us flexibility in our practice and can bring peace of mind. It also allows for the opportunity to better ourselves and learn without doing so at our client’s detriment. Some lawyers only bring in other lawyers as local counsel when they find themselves in unfamiliar jurisdictions and fear getting “home cooked.” I personally bring in other lawyers more often to complement my skills and better achieve my clients’ goals. This may be out of regional concerns, or it may be to enhance my ability to communicate with my clients, witnesses, or opponents. I may bring in another attorney because she has recently dealt with a particular legal issue and had great success. In other cases, I may want to find someone who is more analytical than I when it comes to a particular subject matter.
Once you have worked with another attorney once, it should become easier to collaborate in the future, but this is not always true. The work habits attorneys have may change over the years as their interest in their practices and the cases they handle endures over their career. The best working relationships I have had with other lawyers and friends unquestionably come when my co-counsel and I are more interested in the subject matter of the case and the client than the bottom line. Although financial considerations are in play, money is rarely if ever the primary reason I reach out to other lawyers to see if they want to work on a case with me.
Currently, I am working with several different attorneys on any number of cases. In some of them, I have been brought in to assist and in others, I have reached out for help. I have been working this way for so long that it is sometimes feels unusual for me to work alone. With each case, I get better at sensing how best to manage the working relationship with my co-counsel. As it is with attorney-client relationships, trust is paramount and success is only possible if all parties to the task are committed and dedicated to cooperation and communication.
What I have learned through many successful and less-than-successful experiences is that I should trust my gut, work with respected and professional colleagues, and include the client on the decision as to whether to bring in any other attorney. By this, I mean to say that discussion with the client on this topic should take place long before it is addressed with another attorney. This is so important that I even explicitly get the client’s approval before I begin working on a case when I am brought in by other attorneys. In the end, the rewards greatly outweigh the possible downsides, almost all of which are avoidable with proper planning.