[The previous essays in this series are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.]
At the beginning of the Tom Cruise movie, Jerry Maguire (1996), late-night inspiration strikes an up-and-coming sports agent, who feverishly composes “a mission statement, not a memo. . . a suggestion for the future of our [sports management] company.”
Maguire refers to “how I ended up here after law school,” and recalls the words of his mentor: “The key to this business is personal relationships.” (The leader of Mad Men’s advertising agency of the 1960s similarly insisted that, “Half the time, this business comes down to, ‘I don’t like that guy!’”)
Maguire’s supercharged statement soon scuttled his prospects at Sports Management International (SMI).
But he might have been in better company, so to speak, with Mark H. McCormack (1930-2003), the real-life founder and chairman of sports talent agency International Management Group (now IMG, with a wider range of representations).
McCormack, who had a Yale Law School degree but who did not attend business school, wrote more than a dozen books, the best-known and best-selling of which is What They Don’t Teach You at Harvard Business School: Notes from a Street-Smart Executive (1984).
He addresses that work to “’street smarts’: the ability to make active positive use of your instincts, insights, and perceptions”—and in particular, “how to read people, how to influence their reading of you, and how to apply or customize both to any likely business situation.”
To illustrate his principle of “making it easy on yourself by making it easy on others,” McCormack recounts how “the head of our legal department” resolved an IMG executive’s frustrations about the department’s turnaround time for reviewing contracts.
The lawyer advised the executive, “The next time a contract comes in, review it yourself, and then, before sending it off [to us], attach a covering memo that lists any problems you see and how you might recommend fixing them.”
However, in his The Terrible Truth About Lawyers (1987- subsequently published in paperback as What They Didn’t Teach Me at Yale Law School), McCormack warns potential clients that business lawyers can be–and cautions counsel not to be–interfering, overbilling, underinformed, litigation-inclined, and deal-delaying contract-killers.
Like its more successful sibling, this book “is essentially devoted to. . . the intuitive skills of reading people and devising solutions in order to enhance business and personal opportunities.”
McCormack recommends that attorneys be consulted judiciously, and not necessarily deployed judicially: “If it takes considerable restraint not to call in the lawyers immediately when you are attacked legally, it sometimes takes even greater forbearance not to sue when you know you have been abused.”
Despite his statement that “probably the best way to deal with lawyers is not to deal with them,” and fond recollection of deals “made. . . with no contract or written agreement attached to them—no legalese, no what-ifs, no fine print” (including a career-making “handshake deal that I made with [legendary golfer] Arnold Palmer back in early 1960”), McCormack acknowledges that even informal agreements “eventually take on the baggage of signed documents and memos back and forth.”
That is, “A deal is a living thing, a contract is static. And the purpose of a contract is to support the living, evolving deal, not supplant it.”
His “Axiom of Good Contracts” thus holds that “If a lawyer is serving his client faithfully and well, and if a client is using his lawyer effectively and appropriately, then a legal cont[r]act should allow for the same flexibility and ongoing goodwill as a handshake deal.”
(His fictional counterpart painfully discovered the perils of relying entirely on an unwritten agreement, even—or perhaps especially—with someone who had asserted that, “You know I don’t do contracts, but what you do have is my word, and it’s stronger than oak.”)
Many of McCormack’s reflections, observations, and examples, though now almost four decades old, remain relevant to pre-law and law students, practitioners, and potential or current clients, especially those who seek enduring professional relationships rather than one-shot representations.
Among them:
● On essentials: “[I]t’s not the technical details that are most germane to the practice of law; it’s the human side—the shrewd yet sympathetic understanding of human conflicts and human motivations, the honing of the powers of persuasion, the mastery of the nuances of logic and argument—that is the meat of what a lawyer needs to know. . . . It is the human skills that get practical results.”
● On settling, even when a client is in the right: “[O]ften the choice comes down to paying the plaintiff or paying [your] lawyers. . . . By settling, [his firm] put a cap on our losses. By not settling, we would have remained vulnerable both to the running up of huge legal fees and to the possibility of an off-the-wall judgment.”
● On the Socratic method: “Law school has taught [lawyers] to hide uncertainty at any cost.”
● On delays attributed to “scheduling conflicts”: “[A] client should always insist on knowing the reasons. . . [D]emand to know what those conflicts are.”
In particular, McCormack suggests that the “professional courtesies” that lawyers extend to each other (or alternatively, the personal grudges that they hold against each other) can undermine their professional obligations to effectively represent clients.
(A case could be made that a lawyer who consistently refuses to accommodate requests from any opposing counsel might thereby alienate her entire legal (sub)community, and thus undermine her future ability to represent any client).
● On furnishings: “No client should overlook the role played by [a law firm’s] operating expenses in determining what his legal costs will be. No client should kid himself about who pays for the signed prints on the wall, the teak desks, the creamy stationery,” or consider those accoutrements necessary indicators of a firm’s legal expertise.
● On billing: “A client should always demand a complete and detailed bill from his attorney, and should review the document carefully.”
● On choosing individual lawyers: The right attorney might not be someone “you want to be best friends with”; but she should be someone whom you wouldn’t be embarrassed to have others believe is your friend.
● On staffing: “Clients should not feel shy about asking to meet and interview [all personnel] who will play a part in their case,” and in requesting, and expecting, to be informed if the original staffing arrangements change.
● On flexibility: “[I]n many if not most contracts, there are certain things which, by their very nature, have to be left and should be left to trust, goodwill and common sense.”
Especially in the second half of the book, McCormack’s attacks on law schools, the legal profession, and the legal system can seem excessive, although presented as the brutal truth.
Yet the author’s numerous examples involving International Management Group as a client, and his stories about his own days of legal practice (at Cleveland’s oldest (but now-defunct) law firm, Arter & Hadden), immunize him from lawyers’ potential arguments that—as Jerry Maguire declared to his sole client (emphasizing every single word)—“I am out here for you. You don’t know what it’s like to be me, out here for you. It is an up-at-dawn, pride-swallowing siege that I will never fully tell you about, ok?”
The concluding chapter’s practical pointers on “interviewing” (clients and adversaries), counseling, negotiating, and drafting could by themselves well be worth the cost of the book.
Its final words resonate even more strongly today than in 1987:
“[W]hat allows skilled lawyers—and can allow all of us—to function well under great duress is the ability to strike a balance between commitment and detachment.
“The effective professional—lawyer, executive, salesman—should be wholly concentrated on and committed to the fulfilment of his professional role.
“All the while, however, he should be aware that he has a self beyond that role. . . .
“The balance between commitment and detachment is what allows for the quality we call poise. . . .
“A lawyer who has achieved true poise will never want for clients.
“And business people who attain true poise will deal effectively with lawyers when they need to; better still, they will be able to minimize those occasions when they have to. . . .
“Dignity is what poise grows into when it becomes second nature. And dignity—an effective dignity that lets us get things done not just with flair but with peace of mind—is really the ultimate object of the exercise.”
