Back in the heady days of law school when I still thought legal jokes were funny, I remember the vehemence with which my Civ Pro professor, a salty old stalwart (whose biopic would be entitled “Sit Down, Shut Up, I Wrote That Text Book You Ingrates Are Using” and he would be played by a hangry Gene Hackman), addressed the issue of forum shopping. For those of you who have successfully wiped Civ Pro from your memory bank (tell me your secret, please), forum shopping is a practice employed by litigators to get their cases heard in a particular court or jurisdiction where they think they will have the best chance of securing a favorable judgment. Or just to be a total pain in the ass. My professor said this was definitely the second reason that attorneys decide to forum shop.
Of course, there’s another form of forum shopping, so twisted and annoying that it should be eradicated from the earth along with gym selfies, candy corn, and shareable entrees. This in-house counsel variation on forum shopping will be used by your business partners to lure you into doing their bidding. Resist the urge at all costs. Why? Because if you don’t, every time you fall for this crap, a jurisprudence fairy loses its wings.
The in-house counsel trap goes a little something like this:
Hey Kay,
Wanted to talk to you about the kickoff of Project Dancing Goats on Mountain Top. [I’m making that up, but honestly, why are project names so lame and weirdly long at my company…who the heck wants to mark each draft “Project Dancing Goats on Mountain Top?”] I was surprised to learn that one of your compatriots is working on it instead of you. I don’t feel like she knows our business like you do and I’m not sure she has the chops to handle something that will be in all of our products by year end. I think it’s best that you step in here and take over.
You see it, don’t you? How thick the business partner is laying it on? Appealing to my vanity and legal savior complex? Help me, Obi-Kay-Kenobi, you’re my only hope. Blah, blah, blah. More importantly, look how the little sneak ended it. “I think it’s best that you step in…” Right, so if anyone were to call this weasel on it, he could say it was my call to step in or not. Shameless.
I will admit that when I was young and new at my company and the need to prove myself hung over my head like the shiny law school diplomas on the wall, this email might have sent me scurrying to comply. I wanted to be a good business partner, right? I should be part of the team that got this project done quickly and correctly, didn’t I? If I was the subject matter expert, then why shouldn’t I offer to take this off another attorney’s plate?
Because it’s exactly what the business partner wants you to do. In reality, the average business partner doesn’t care which attorney does his or her work, that partner just wants it done yesterday and with as little headache as possible. So, if there’s a shiny new recruit willing to expedite review and not make too many waves over the deal, it’s a no-brainer.
Worse, if you let a business partner forum shop among your team, you’re sending the message that at best you’re disorganized and out of synch, and at worst, you’re weak and willing to step on a teammate to get ahead. And that is so not the image you want to project. Business partners, like dogs, bees, and people who sell timeshares, can smell your resolve unraveling from a mile away.
So, do yourself and your team a huge favor. Name the beast. That’s right. At last month’s sales meeting, I raised the issue of forum shopping. Several offenders in the room looked away. They knew exactly what I was talking about. And for those who didn’t? I gave the following example to demonstrate why it’s annoying and counterproductive as a business partner to do this:
Business partner: I call Kay at 9:30 to ask her about a rather sticky FCPA question that’s holding up this deal getting signed. She tells me she’s heading into a meeting but will circle back by EOD. At 10:45, I’m feeling puckish, so I call Randy who promises me an answer by COB. His timeline is better than Kay’s, but, I really want to get out of here by 3:30 so I can go home and oil my beard with artisanal oils, so at 2:00, I call Stacy and proceed to harangue our newest attorney into giving me an answer on the fly.
Kay, Randy and Stacy: And this is what we mean by forum shopping.
Once you name the beast, put up a fence around it. Get with your team and decide how you want to address forum shopping. We have a weekly check-in meeting where we touch base on what we’re working on. It’s not 100 percent foolproof, but it does serve to cross-check who is working on what and with whom. Generally, the bigger the deal, the more likely a business partner will try to forum shop.
Finally, wrestle the beast to the ground. Our team has decided that the most effective way to deal with forum shopping is to redirect that partner to the correct attorney, or in Stacy’s case, she forwards the entire email chain to the correct attorney with the forum shopper on copy. Let me tell you that practice has drastically reduced the number of “Kay doesn’t have the chops to work on my stuff” comments. The important part is to be consistent and firm. Caving in to the “but Randy is out for a root canal, can’t you just take a quick pass,” is a sucker’s bet. Don’t be a sucker.
Because no one wants their biopic to be called “The Sucker Who Fell for Everything and Stood for Nothing.”
Kay Thrace (not her real name) is a harried in-house counsel at a well-known company that everyone loves to hate. When not scuffing dirt on the sacrosanct line between business and the law, Kay enjoys pub trivia domination and eradicating incorrect usage of the Oxford comma. You can contact her by email at KayThraceATL@gmail.com or follow her on Twitter @KayThrace.