For Premium Subscribers
Former Avantax GC Tabitha Bailey discusses the factors she uses in hiring outside counsel and specific items outside lawyers need to know about her. But she also talks about her hero in life, her great-grandmother, who impacted her life in so many ways.
Texas Lawbook: What are the factors you consider when deciding about hiring outside counsel?
Tabitha Bailey: I consider the following factors when hiring outside counsel (in no specific order):
- Results and experience in similar situations. As general counsel, I seek to obtain the best outcomes in the shortest timeframes. Outside counsel that has repeatedly had impressive results in similar situations provides in-house counsel, management teams and boards with the highest level of confidence that (1) the best potential solutions have been identified and considered, (2) risks and consequences of actions have been identified and appropriately managed and considered, and (3) relationships with and knowledge of opposing parties and counsel can be leveraged.
- Communication skills. Communication skills are critically important for outside counsel. Often, I expect outside counsel to not only engage with other lawyers but also members of boards and management teams. Outside counsel should be able to synthesize legal analysis — orally or in writing — into a concise, understandable, plain-English communication.
- Timeliness and responsiveness. Almost as important as the quality of legal analysis is the timeliness and responsiveness of the provision of legal services. When hiring outside counsel, I consider whether the firm has the resources to properly staff a matter to ensure the ability to meet tight timelines and to provide multiple points of contact if a lawyer on the team is unavailable.
- Judgment. Lawyers and businesses rarely operate in a world where answers are black or white. It is critical that outside counsel provide advice in the context of balancing risks and benefits. Additionally, while it is ultimately the client’s decision as to how to proceed, outside counsel should be willing to provide an informed opinion based on the facts as presented.
- Reputation. When considering working with outside counsel that I have not worked with previously, I often reach out to other lawyers for references and recommendations.
- Cost. When considering costs, I am rarely concerned with hourly rates; I am focused on total costs. I am willing to hire a lawyer with a higher rate that has the expertise that allows the lawyer to work effectively and efficiently leading to overall lower costs. Additionally, I expect outside counsel to be able to provide an estimated budget. Businesses require in-house lawyers to operate within a budget; therefore, it is imperative that outside counsel be able to provide estimated budgets.
- Diversity. For complex legal matters, innovation and creativity are often critical to achieving the optimal outcome. A diverse team offers you a broader pool of knowledge, skills and backgrounds, which leads to more potential solutions, more questions raised and less group think. As a result, the team makes smarter decisions and solves problems more effectively.
- Data security. Outside counsel often handles confidential and sensitive personal and business information. Privacy and security laws are strict, and the consequences of a data breach can be disastrous. Therefore, outside counsel must have sufficient technology to safeguard company and employee data and a plan for immediate remedial action if a threat occurs.
- Full-service capability. While not required, it is often more efficient to hire a lawyer that works for a law firm with full-service capabilities as issues may arise that require advice outside of the lawyer’s expertise. Working within a firm should be more efficient than engaging an outside lawyer to assist.
Lawbook: What does outside counsel need to know about you?
Bailey: Outside counsel should know that I value direct, truthful communication above all else.
If a mistake happens, please do not try to cover it up. Instead, quickly inform me about what happened, why it happened, what the plan is to fix the mistake and how we can avoid similar mistakes in the future. It is critical that I answer these questions for my CEO and my board.
Provide balanced assessments. If we have a weak position in a case, inform me as part of the initial assessment — please do not wait until a month prior to trial to inform me that we should pursue a quick settlement because our position is weak. If the business is pursuing a negotiating position that is off-market, please tell me at the outset — it may not change the initial negotiating position, but it will provide credibility when opposing counsel raises the point and allow us to prepare arguments as to why this situation is distinguishable and warrants bespoke treatment.
Be honest about the strength and expertise of your team and your partners. Every associate is not a rockstar, and every partner is not the top expert in his or her area — and that is absolutely fine. An honest assessment of your firm’s strengths and weakness gives you credibility. I would much prefer a lawyer note that his or her firm is not best suited for a particular matter than recommend a partner with whom I have a bad experience.
Lawbook: How important is diversity when looking to hire outside counsel?
Bailey: Diversity is an important factor that I consider when hiring outside counsel. For complex legal matters, innovation and creativity are often critical to achieving the optimal outcome. A diverse team offers you a broader pool of knowledge, skills and backgrounds, which leads to more potential solutions, more questions raised and less group-think. As a result, the team makes smarter decisions and solves problems more effectively.
Lawbook: Who is your hero in life and why?
Bailey: My hero is my great-grandmother, Clara Brockwell. When I become overwhelmed with life’s challenges, I reflect upon the responsibilities that my great-grandmother skillfully managed on a daily basis. She worked full time in a factory in a time when few women ventured into the workforce. She raised six children for whom she handmade all their clothes, prepared every meal and attended every sporting event and extracurricular pursuit. She navigated grief and loss following the death of her teenage son with poise and grace. She was loving, funny, selfless, strong, tenacious and resilient. The time spent with my great-grandmother instilled me with the confidence that it is possible to successfully balance the demands of work, family and friendships.
My great grandmother was born on Dec. 30, 1917. She spent her entire life near the Kentucky-Tennessee border near Fulton, Kentucky. She married my great-grandfather at the age of 18 and had her first of six kids at age 19. She worked full time at the Henry I. Siegel clothing factory sewing clothes in addition to taking care of her family: hand making their clothes, preparing meals from scratch and taking care of her home and the household chores with no electricity and no indoor plumbing during the period when her kids were young.
I was incredibly fortunate to get to spend time with my great-grandmother during my childhood. Although my immediate family moved quite a bit, we visited Fulton multiple times each year because my grandparents and great-grandparents on both sides of my family resided in the area. My great-grandmother was the most positive and energetic woman you would ever meet. Even well into her 80s, I am amazed at the amount that she could accomplish in a day and always with a smile on her face.
She died when she was 85 in December of 2003, right after I graduated from high school.
Click here for the full profile of Tabitha Bailey.