Annita Menogan practiced in the private sector for 16 years as a securities attorney, then moved to in-house positions at Adolph Coors Company, now Molson Coors Brewing Company, rising to vice president, deputy general counsel and corporate secretary, and then to Red Robin Gourmet Burgers, Inc. as senior vice president, chief legal officer and secretary. She left Red Robin and recently joined the law firm of Fortis Law Partners, LLC as of counsel, practicing in securities, general corporate and corporate governance. She also serves on the boards of directors of Children’s Hospital Colorado and Denver Kids, Inc. Annita has extensive experience counseling executive management and boards of directors of public and private companies and is seeking board positions. Annita also is a member of the National Association of Corporate Directors. She can be reached at firstname.lastname@example.org or through LinkedIn.
- After moving from outside counsel to in-house, how did your perspective change about the services of outside counsel?
I believe that most outside counsel do not really understand how to be a business partner, rather than just a lawyer. The number one area that exemplifies this concept is risk tolerance. When I went in-house, I had to learn to understand the company’s business and objectives. I had to be a business person first whose functional expertise happens to be the law, just like others had a functional expertise in marketing, finance, etc. I had to think like an operator, not a lawyer.
You are not there to say “no,” but to figure out how to get to “yes” legally.
That meant learning to accept an element of risk. That doesn’t mean breaking the law, which is never permissible; rather, understanding that a business activity may carry some form of legal consequence.
An example would be introducing a new product that may carry some risk to consumers, or introducing an edgy marketing campaign. An in-house lawyer needs outside counsel who looks at our issues as business problems, not as just as purely legal matters, and who keep our business realities first and foremost when advising on a course of action.
- How can lawyers learn this skill?
A lawyer could be in-house, an executive director of a nonprofit, or managing partner of a law firm. All of these require the understanding of how to run a business. Even a litigator needs to understand the business impact of a settlement or an offer on the financial statements of a business that may affect reported earnings or other things. For those out of school, it means a willingness to spend your own time and dollars sitting with your client in their offices to learn their business and not bill them for it.
Most importantly, ask questions. Always remember the business objective.
The best advice I received when I first went in-house was, when a client comes to you with a problem, ask 10 questions before giving any answer. This is actually perfect advice whether you are a lawyer in private practice or in-house. First, it shows you are listening and interested. Second, it keeps you from assuming anything and you might actually learn something relevant. Third, it helps you consider your answer before jumping in.
- Is it better for the outside counsel to say up front “We want to come and learn more about your business and we will not bill you for it”?
Yes. If somebody is pitching for work, it would really resonate with the hiring in-house counsel to hear from outside counsel, “If we get this work, we’d want to come in and really learn about your business, at our expense.” That tells me that they’re really trying to develop a relationship and offer value-added services focused on my company.
- How do lawyers get in the door to receive work from in-house counsel?
I have been a GC and AGC at two different places. Often, several lawyers in the department may have authority to hire outside, so it is not always necessary to get to the general counsel. Getting in the door is a combination of knowledge, relevance, and luck with timing – or at least the ability to stay top of mind.
The most effective way to get in the door is to know what types of services my company needs rather than blasting me with all of the firm’s literature on every subject. A wealth of information is available that will let outside counsel know what my issues are, whether my company is public or private. So, if you ask for a meeting, tell me what you can offer that is specifically relevant to my company. Understand that I likely already have counsel for my needs, so I may not need you now, and please don’t try to displace current counsel.
Demonstrate that you are paying attention to what is happening in my industry that may be of specific interest to me. By way of example, we once received a post card from a law firm that had represented another California company against a plaintiff who had a history of filing certain claims against similar parties. The post card described their recent win over this plaintiff. A few days later, coincidentally, that very same plaintiff sued us for the very same thing. Our first call was to that firm – which was successful, by the way, in defending us. We had never met with them, but they demonstrated specific knowledge of what would be useful to us – and had a bit of luck on their side.
Another way is through personal introductions or references. But again, there should be a reason why your firm can be helpful. The introduction is just a way to get my attention, but won’t necessarily get you in the door.
To get my attention, do enough research to be able to call me or send me a note that says you’ve done this kind of legal work. Then ask for a meeting to describe who you are. If you get the meeting, don’t call me every three weeks asking do we have some work. Wait a while before you call back again; otherwise it starts to get annoying. On the other hand, you do want to make sure that that you stay on top of the minds of in-house legal. It’s a fine line. Don’t make a contact to say only “Hey, we’re still here.” I would say the best thing to do is to try to have something meaningful in your contact.
- What is the key question perhaps they should ask so that they know they’re not bothering you?
The key here is letting me know that they are available to help me, not that they are looking for work. It’s a fine distinction. We’ve met and they’ve actually shown that they can provide some valuable service for me, that they know what my business is, and that they actually targeted me because of some special expertise I actually can use. If we’ve had a successful meeting, I think it’s easy to ask the question “How do you want us to stay in contact with you?” I think one of the easiest ways to stay in contact is to find some article of interest or a case that they have had that is specifically targeted to what we talked about, that they send along to me, which helps keep them at the top of my mind. If you haven’t asked the question of how you can stay in touch during the meeting, then do an immediate follow-up and ask at that time.
- What are your expectations with respect to diversity and inclusion with the pitch? Do you require it?
Yes. From a diversity and inclusive perspective, we wanted firms that had a commitment to it. We would start by looking at their websites, seeing what they did, finding out whether they really had a commitment before we’d let them come in. The worst thing that can happen in a pitch is that they bring in the diverse partner or associate and then you never see them again. Don’t bring in anybody that you’re never going to use on my file. Even if it’s not a diversity issue, just bring the people that are going to be on the team. And don’t do anything ridiculous. Somebody actually called one of my lawyers one time and said “I’m going to bring so and so because she knows Jesse Jackson,” I assume because they knew I was African American. Isn’t that just crazy?
- How can you tell if the firm has a commitment to diversity by looking at the website? Couldn’t it just be a good marketing campaign?
You can tell the firms that really are committed. You can look at the pictures of people and see who they are, their titles, and in what areas they practice. Do they have 5 out of 100 or 25 out of 100? And of those, are they partners or are they all first-year associates? You look to see how long they have been with the firm and whether there are diverse attorneys in a wide range of legal disciplines. You see diversity at the management level. If we have contacted or have been contacted by somebody who is a diverse associate or partner about doing work, whether or not they’re the billing partner, our first contact is there. And actually, this works for anyone we worked with. We want to make sure that they will get the credit for that work. I see it as supporting development of the attorneys who worked for us.
- Sometimes it is difficult to develop a more personal relationship with in-house counsel particularly when it is with the opposite gender. What have you found to be effective to get around these issues?
Expect to invest extra time and energy in developing the relationship, and recognize it may never happen on a personal level. But that doesn’t mean the professional relationship can’t be one of quality. What you have to try to do is figure out what kinds of things you have in common, and try to work them into the conversation. Don’t try to force it. When you are working closely with somebody on a project and spending a lot of hours with a person, you do tend to let your guard down a little bit. Doing quality work and knowing how to deliver advice will go far in developing trust. Once the professional trust is there, it is much easier to develop a more personal connection.
With respect to gender, there is still some uncertainty and awkwardness around business development between different genders. Some relationship building activities may be foreclosed, at least for a while, with opposite genders; for example, evening sporting events. Such events often entail inviting spouses/significant others, which can create another whole dynamic. The etiquette of whom to invite can be problematic. Some types of activities usually have to wait until you’ve already developed the relationship. It’s always easier to have lunch, coffee, or breakfast. Sometimes it just doesn’t work; you’re just going to be the lawyer and that’s it.
- What are the fatal mistakes that outside counsel make so they don’t end up on your list?
First, ignoring or not paying attention to instructions and then running off course because they think they know better. This goes to the point of them not understanding your business, not being a business partner and failing to recognize that there may be business considerations dictating why you want to handle a matter a certain way versus just purely legal considerations.
We had a case once where our outside counsel was so focused on getting us the win that they kind of missed the fact that they were spending hundreds of thousands of dollars on something that we could have settled. When we did settle it, we settled it for less money than what we spent on legal fees. Along the way, we had several conversations with this law firm about how we were not happy with some of the things they were doing, and the way they were looking at the case, but we were too far in for us to fire them and start over again. When this happens, I tend to think, “I’m not going to use this law firm again because they don’t listen to me.”
We had another law firm that settled a case for us. Instead of giving us a realistic view of how much they thought it was going to cost, they gave us sort of an aggressive estimate of what we probably would pay based on trying to impress us with what a good result they could get. And when our auditors asked for backup, they retreated and gave us a higher, less-favorable number. Note, you have to get past the privilege issues first. We had to make adjustments in our internal earnings calculations because of the law firm’s mistake. We stopped using them. So, fatal mistakes would include not being truthful, not listening to your client, and failing to understand that there is something besides just the legal issues going on.
- What about going over budget?
Absolutely. We don’t like surprises on our bill. That doesn’t mean that you’ve already done the work and then call me up and tell me the bill is coming. You call me before you do the work.
- What is your best piece of professional advice?
I would say don’t make assumptions. You know, you go into a new situation and it’s hard not to make assumptions and you don’t even realize you’re making them. So you just have to be open-minded and understand that things may not be as you expected. I’ve tried to learn not to make assumptions. If I have made an assumption that turns out to be wrong, I try to just own it and allow myself to learn something from the situation.
About the Author
Interviewed by Jeanne R. Lee.