The Texas Lawbook: What are the critical factors you consider when deciding about hiring outside counsel, and what are the biggest mistakes that outside counsel make in their relationship with in-house counsel?
Jonathan Ellis: Price. Knowledge of Stakeholder’s particular facts (or willingness to familiarize with them). How many questions does the outside counsel ask? If it is few, then are they assuming my client’s situation is very similar to another? And if they are making that assumption, will that assumption potentially give rise to a miscommunication between me and my client and our outside counsel? How quickly do they respond when I or my client call?
Probably the three biggest mistakes I have seen: One, my client is very collaborative and frequently on calls will make a one-off ask of outside counsel, and perhaps outside counsel thinks my client will forget, but inevitably, a few days later, my client comes to me asking where it is.
Two, during a major transaction my client wants to be able to pick up the phone and get someone on the other end or hear back by the end of the day. During normal day-to-day operations, delays are fine, but during a major M&A deal, my client wants to know that if they pick up the phone, they’ll hear from outside counsel immediately or within the next few hours.
Three, overcommunication is better than under. We were involved in litigation for two to three years on an issue, and the week before trial, we had our strategy set — I thought — for every eventuality. And then the other side made an offer for settlement, and for the first time, I was informed of a potential risk if we didn’t accept. That was not a good time to hear about a new thing for the first time.
Lawbook: What does outside counsel need to know about you?
Ellis: Surprises are about the worst thing I can imagine. If you must err, then err on the side of overcommunication.
Lawbook: How has being a lawyer helped you and a pastor and vice versa?
Ellis: In the practice of law, one is taught certain drafting and interpretation rules: “construe the contract as a whole,” “don’t render clauses meaningless,” “specific terms prevail over general terms,” etc. These are adopted in order to achieve the primary concern of ascertaining the true intentions of the parties as expressed in a written instrument. The validity of these rules, in my opinion, relies on an underlying assumption, which is that despite the instrument in question being complex and seemingly difficult, there is an objective intent which is expressed by the author and that it can be discovered.
What I have found in my study of Scripture is likewise there is a unified message throughout, even though God used many different individuals over centuries to pen it. There is one ultimate author — see 2 Timothy 3:16 — and one ultimate line of reasoning throughout the whole of Scripture — see Luke 24:27. And Jesus was so confident in the unity and clarity of this message and exactness of the words written in Scripture that he appealed to something as simple as the past verb tense in order to prove the reality of something as substantial as resurrection from the dead — see Matthew 22:23-33.
So, it took me practicing law before I truly appreciated the much greater level of exactness and precision that Jesus expected when He read the Scriptures. Once I saw His perspective towards Scripture, it aided and formed my own.”
Click here to read The Lawbook profile of Jonathan Ellis.