A recent webinar from the IBA, part of its Litigation in Latin America series and entitled ‘Advice from in-house counsel to outside counsel’, raised key issues relating to skills, fees, diversity, communication and work/life balance. This In-House Perspective article provides an abridged transcript of the webinar.

The panellists taking part in the webinar were:

• Carlene Borges, litigation corporate counsel, Amazon Brazil, São Paulo
• Eugenia Picasso Achaval, Head of Legal and Compliance for Latin America, McCain, Buenos Aires
• Gabriel Aguilar, Vice President, Litigation, Santander, Mexico City
• Ianda Lopez, Head of Legal at Uber in Brazil, São Paulo
• Juan Carlos Menció, Vice President of Legal Affairs and Compliance for LATAM Airlines Group, Santiago

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What do you value more in outside counsel – hard or soft skills?

Ianda Lopez: Hard skills are a given, right? There is no way we would go for an outside counsel if they are not proven to be somebody with expertise in a specific area of law.

However, soft skills are what differentiates a good outside counsel from one that we are probably not going to hire again. If an outside counsel, besides having good technical skills, also knows how to communicate, to manage a crisis, is capable of engaging with the team and stakeholders, this is what differentiates them.

Communication is one of the biggest soft skills an outside counsel needs. I’ve seen lawyers that are great from a technical standpoint but who simply can’t convey the message they are trying to. We also need lawyers that can think outside the box. If I hire outside counsel to tell me things we already know, then we would never move ahead; if we were not creative enough, we wouldn’t have a business like Uber.

Eugenia Picasso Achaval: I would not take hard skills for granted; I don't know if it’s a given. We all have the experience of having run into partners at law firms that are supposed to be experts in a certain field, and you find that is not the case. I would first go for hard skills because that is what I need most. I also look for good ethics in a lawyer, especially for litigation; I need to trust the person I’m working with, particularly if it’s sensitive litigation.

Juan Carlos Menció: We expect lawyers to be responsive, available and proactive. We live in a dynamic society and each of our businesses requires quick responses to crises or contingencies. I know that often answers are not immediately available, but we do expect outside counsel to be responsive and understanding, to put themselves in our shoes where we are dealing with a time-sensitive matter. We may need guidance quickly and we require the law firm to have the adequate team to deal with calls and consultations. That there is a backup plan within the firm for clients that are a bit demanding, like us, is important.

On creativity, I might have a lawyer say ‘under the law, you’re not allowed to do that’. Clearly, I’m calling because I know it’s a challenge; what I need you to tell me is that we have these laws, but if you do it this way, you can get closer than if you do it that way. There has to be a ‘but’ after a ‘no’.

Carlene Borges: Empathetic communication is important, especially for litigators, because it’s crucial for them to know their audience, to adjust their speech and their brief, to be concise, to simplify, to be creative, and to use visual law if it makes the arguments clear for the court. The worst-case scenario is when we have the perfect brief with very technical arguments, but it can hardly be understood by [those] that are going to rule on the case. The kind of empathetic communication that requires this analysis of the audience is crucial.

Gabriel Aguilar: When we hire an external lawyer, we are looking for results, so hard skills are the most important thing. We do need the soft skills as well though, because we have to have communication inside the company and outside the company with the law firm. A balance, therefore, has to be achieved.

What is the most appropriate way for a litigator to give you bad news about a lawsuit? Do you prefer to receive the bad news immediately, or later with a reaction plan?

Aguilar: Whether it’s good news or bad news, it’s better to receive it as soon as possible. You have to communicate the news inside the company as well, but for this you only need to say the result, but not the issues stemming from that result. And sometimes news comes from the media – it’s worse for lawyers to receive the result via the media rather than from outside counsel.

Achaval: I prefer to have the news immediately, especially when we are talking about sensitive litigation that may appear in the media before one gets to hear of it. I don’t want solutions brought to me as I like to participate in the discussions and the strategy. I used to be a litigator and I like to be a part of the team. I don’t want pre-cooked solutions; I want the news right away, so I can start immediately brainstorming with the team.

Lopez: Now we have social media and everybody is on the internet, the news is going to come out, so it’s better that outside counsel gives it to us immediately. They don’t need to have a full prep plan and a detailed analysis to come to us, but I would expect some kind of outline of what is next. They need to be prepared for both scenarios, win or lose. If they call with bad news, I expect them to tell me: ‘this is the decision and we are exploring A, B, and C possibilities for going forward. I need time to explore these possibilities, and I’ll get back to you in a couple of days.’ These are the questions I’m going to be asked by my internal clients when I pass on the news, so I need some kind of answers.  

Are you open to communication with less senior staff at a firm, or do you prefer to concentrate on communication with the partners, even if the partners are sometimes a little less available?

Lopez: The type of communication needed will differ according to the issue we’re dealing with. I have no problem with working with less senior staff as long as they are prepared to handle the issue. I keep learning from younger or less senior professionals the same way I learn from my kids; it’s a completely different way of thinking, and to me very enriching. That said, when it’s a sensitive case or we’re making a definitive or strategical decision, I want a partner at the table.

Aguilar: It depends on what kind of cases we are dealing with. Most of the time the senior lawyers have more knowledge of the case than the partners, but if there’s a sensitive case, I need the partner at the table.

In certain jurisdictions, success fees are not common, but in Latin America clients often like to pair regular fees with some sort of success fee. What are your thoughts on this?

Aguilar: In Santander we prefer to deal with a success fee, where if you win, everybody is happy.

Borges: Success fees are sometimes the only alternative for challenging cases where the cost benefit of litigating is not that clear. The problem is when we have a potential conflict of interest; when you want, for example, to settle and the outside counsel thinks it’s not the right moment. To mitigate that risk, it’s important to discuss the possible scenarios and have everything aligned in the agreement before you reach that point of conflict.

How do you feel when outside counsel approach you and ask for renegotiation of fees?

Menció: That is not a popular topic between outside and in-house counsel, but it is a reality. The approach the outside counsel uses to bring up fees is important. There has to be an explanation for the increase. They can’t just say ‘I’m increasing it because the cost of living is higher’. We need to understand because we have a budget. I’ve had situations where I’ve had to stop working with lawyers because their fees became so high, so there are limits to fee increases. One solution is finding a way to structure the work so you have associates or junior lawyers doing some of it. We’ve had agreements where we actually divide up the work, to ensure we keep the fees reasonable.

Borges: We all know that litigation is unpredictable. We believe it’s going to play one way, and then things happen in between, so we know we may get to a point that we need that conversation about renegotiation. That’s not really a problem. The problem is when, especially in Latin America, it’s not easy to predict. It’s problematic when the outside counsel underestimates the work, [when they] just jump in too quickly to take the case and present a fee proposal without doing that important deep dive. In those circumstances it’s uncomfortable because as in-house counsel we also need to justify the fees or renegotiation. Outside counsel should study the case and present justifiable fees at the beginning.

Lopez: It’s important for outside counsel to understand that in most cases, we receive three different proposals from different law firms, and compare fees. It wouldn’t be fair to be renegotiating in the middle, especially where we feel that outside counsel were not careful enough doing the initial estimations. The lesson here is, don’t underestimate your fees to get the work, and then ask for renegotiations. There should be good justification for it, both from outside counsel and from in-house counsel to the board.

Is it acceptable for outside counsel to approach in-house counsel they are close to about potential work opportunities when you’re enjoying leisure time?

Achaval: I’d rather not have a lawyer friend or acquaintance approaching me to discuss possibilities to work together during leisure time. I would prefer them to say ‘maybe we could schedule a meeting to discuss this and see if there’s a way our law firm can help you, or for you to get to know some of the partners or the work we do’.

Borges: Leisure time is for pleasure not for discussing business, especially if you see the person is just interested in getting hired. It’s best to be honest and say ‘I want you to get to know our firm better with a view to potentially hiring us in the future, can we schedule a separate meeting for that?’ If we schedule a meeting, it’s important the law firm comes prepared, knowing our business and ready to discuss real possibilities of how we can work together – not just to do introductions, which is often pointless and embarrassing.

How important is diversity among outside counsel team members on your decision-making process for a potential engagement?

Aguilar: For Santander it is very important. We care about the law firms that have diversity but it is not a motivation to engage the law firm.

Lopez: We at Uber value diversity a lot. We ask firms that work with us to respond to a questionnaire so we can map where they are in terms of diversity. It is not that we are not going to hire a law firm because of a lack of diversity on their side, but we are going to strongly recommend that they increase diversity in their firm’s numbers over time.

Borges: Diversity can really be a factor when Amazon chooses a new law firm to work for us. This is an invitation for us to think about our decisions and the secondary effects of our decisions. We are very attentive and very insightful about diversity equity within our partners, especially our outside counsel firms.

Menció: When the organisation has an initiative which focuses on this particular issue, there’s not much room for our third-party providers not to also be aligned. We understand smaller providers have more limited resources for this, but we do require that our third parties have the same way of analysing this issue. When we have bids from law firms and there is one that has a proactive programme on diversity, clearly that is a point to their advantage. There is no tolerance for a law firm that discriminates in any way.

Achaval: At McCain we work hard on diversity, equity and inclusion. We would not tolerate discrimination. I’ve been always attentive when forming my teams in paying attention to gender balance. But when I pick a law firm, I’m not sure I pay a lot of attention to their diversity or diverse structure. When I work with law firms and I find there is a female team, it’s like serendipity and I enjoy that. But I don’t take a deep look before hiring a law firm to see how much they work on diversity. This is homework I’m taking with me.

We know how important family is in Latin America. How do you balance your successful careers in the corporate world with your family needs and activities?

Borges: There will never be balance. Accept that reality. Don’t try to be perfect. Don’t try to do it all. Simplify, delegate and acknowledge your mistakes. Be honest and fair with your family, friends and colleagues, that your career matters, it is part of you. When you have made this clear to everyone then you have their support. This is what makes me believe it’s possible to have a career and take care of my family as well.

Achaval: There’s no balance; you have to be ready to accept ambivalence, frustration and exhaustion and just move one day at a time, with no magic; with all the humility in the world.

Aguilar: You have to prioritise. Which are your opportunities? Which are your goals in life? You need to be open to receive aid from others. Once you can learn to plan your life, and try to balance between friends, amusements and work, you are going to be a better person.

Lopez: Accept that it’s not going to be linear. Sometimes, our career is going to need more of our attention, perhaps because you move to another job; sometimes our family is going to need more of our attention, and then we probably need, not to stop completely, but to take a break from focusing on the career and pay attention to our kid that is not feeling well or is struggling with an issue.

Menció: We have all had to leave vacations, soccer games, etc, to take calls from our clients and outside counsel. That’s part of the process. I agree it’s important have a supportive family who accepts what we do. When you have a business like ours where our aircraft are flying 24 hours a day, you’re basically on call 24 hours a day. That’s just part of our work, and the challenges we face.

A recording of the full webinar is available at https://www.ibanet.org/conference-details/CONF2565