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Controlling Outside Counsel: Micromanage or Hands Off?

By William Vogeler, Esq. on June 14, 2017 | Last updated on March 21, 2019

As the allied forces stormed Normandy on June 6, 1944, Hitler slept.

His generals were afraid to wake him, and they were not allowed to make decisions on their own. Their delay -- and the victory on D-Day -- marked the beginning of the end for the Germans.

General counsel should take a lesson from their history, says attorney and leadership consultant Ken Grady. Rather than follow flawed practices, they should empower outside counsel to win more battles in the courtroom.

Auftragstaktik

Grady says the traditional German leadership system, Auftragstaktik, trained soldiers to think for themselves at all levels. A general would set goals with subordinates, and those leaders would execute their own plans to achieve the goals. Hitler, however, undermined the system.

Writing for Seyfath Shaw, Grady said general counsel should define goals with outside counsel but not micromanage them. By making them accountable for those goals, general counsel can guide attorneys but allow them to adjust to changing circumstances on the litigation battlefield.

"It means that general counsel should hold outside lawyers accountable for achieving the goal on or under budget and at an acceptable quality level," he said. "How outside lawyers do that should be up to them within broad boundaries."

Partnering

Michael J. Morse, writing for the American Bar Association, called a similar approach "partnering with in-house counsel." As a former litigator turned general counsel, he's sensitive to micromanaging cases.

He said that he takes a more "hands-off" approach when outsourcing legal work that is not in his experience wheelhouse. But when litigation is involved, he takes a more active role.

Morse said he reads pleadings and briefs and gives input on litigation strategy. He expects to be involved in any settlement discussions.

"Recognizing that my litigation background may become a burden to the lawyers handling litigation for my employer, I usually invite outside litigation counsel to tell me if I start to micromanage their case," he said. "At least one outside litigation counsel regularly accepts that invitation."

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