I was working my way through a contract recently and, like I always do, I flipped to the last several pages. This is where you find the real action in any commercial agreement. That’s right, the “boilerplate” clauses are where I like to spend a lot my time. Why? Because if you get it wrong it can lead to big problems down the road. Trust me, I’ve seen it. Like many in-house lawyers, I did not begin my legal career focusing on contracts. I started in litigation where I got see up close and personal the results of well-drafted contract clauses and poorly-drafted contract clauses. When I went in-house, I taught myself a lot about drafting contracts, stumbling along with the help of some great mentors, a couple of books on contract drafting, and, most importantly, by reading a boatload of contracts – trying to figure out how all the pieces worked together. My realization was that contracts simply tell the story about an agreement between two parties. How the story turns out depends in large part on who is doing the writing.
I remember very clearly one of the first commercial agreements assigned to me when I started working in-house. The attorney who asked me to work on it told me not to worry too much about all the boilerplate, saying, “it’s all pretty standard stuff.” Since the boilerplate clauses took up almost half the agreement, that didn’t feel like the right way to go. So, contrarian that I am, I spent a lot of time on the boilerplate. And I am glad I did because I found a lot of little twists and turns that were anything but standard, fair, or balanced. The lesson was if you ignore or skip lightly through the boilerplate, you are begging for problems or surprises down the road. Since all in-house counsel should have a working knowledge of contracts, this edition of “Ten Things” describes some of the key boilerplate clauses you will find in most commercial agreements along with a few words of advice from someone who still likes to get his hands dirty reading every sub-paragraph of every clause “stuck in the back” of most contracts. Hey, I know it’s only boilerplate… but I like it:
I have been on the road good bit lately. I spoke on Artificial Intelligence and ethics at the South Carolina Law Review 2018 Symposium a couple of weeks ago. Last week, I presented at the Winston & Strawn 2018 VISION Conference in Dallas on how to be more productive. Down the road, I will be speaking at the ACC Legal Operations Conference in Chicago in June on practical uses of Artificial Intelligence for in-house legal departments and I will be back at the annual Texas Bar Association Advanced In-House Counsel Course in Dallas in August. The interesting thing to me is that all these opportunities came about because of this blog. Which means I continue to be very humbled by the fact that so many people find it worth their time to read it. We’re up to almost 2,600 direct subscribers and aiming for 3,000. I remember when I thought 100 would be amazing. Now I’m just thunderstruck (okay, I could have used a different word but when would I ever get to use “thunderstruck” in a sentence again?)
If you’re new to the blog, one thing I do every so often is put together an index of all of the blog posts, going all the way back to the beginning, November 2014. I do this because I know it’s very difficult to go back and search through the monthly archives to see what’s there (and because I am too lazy to create an index on the website). As I put this index edition together, I see that I am almost to 80 posts (and it is fun for me to go back and read the older ones). By the time I do another index I may be over 100. I keep thinking that at some point either I or the people that read it will get bored with “Ten Things.” But, we’re not there yet (at least not on my end). The good news is that I am still learning and going back in-house has shown me that there are so many things I am curious about regarding the law. There are many new and exciting developments for in-house counsel and I am excited to be part of it. Put another way: I still have a lot to write about (and maybe “time management” will be on the list)! Thanks for taking the journey with me:
I have always been impressed by those who seem to come to “leadership” effortlessly. For some, it’s charisma and likeability. For others, it’s the aura of gravitas that emanates from them. Many become leaders because they survive the crucible of a crisis and their leadership skills simply emerge. Whatever it is, I think most in-house lawyers wonder how people become good leaders because, ideally, in-house lawyers want to be good leaders themselves (of people, projects, etc.). Sometimes, I look at myself and ponder how did I get to be the leader of three different legal departments? I can tell you for sure that it wasn’t something I was born with. Luck played a part. But I think most of my leadership abilities derive from having tremendous mentors over many years who were not only excellent role models but were generous with their time and feedback on things I did well and things I could work on (usually more of the latter). But, not everyone is so lucky. Sometimes, you have to teach yourself what it takes. For example, I learned a lot from watching people who I thought were not good leaders, and promising myself to never be like them. As I have come off the bench to take on my third general counsel position, I know that leadership matters. It is expected from the Board, your boss, and your team. Without it, you’re probably doomed in long run to hold onto the role. Over the past few months, I have been looking back on the things that worked or didn’t work during my first two tours and am trying to be a better leader every day. As I have thought it over, I have prioritized the qualities that I think make for the best leaders for legal departments (or anywhere for that matter). This edition of “Ten Things” shares what I think are the key traits for legal department leadership:
“One is the loneliest number that you’ll ever do.
Two can be as bad as one, it’s the loneliest number since the number one.”
“One” Three Dog Night
I appreciate everyone who writes to me about the blog. In particular, I enjoy your suggestions for future blog posts and I always add them to my list of ideas. Today, I am writing on a topic that several readers have asked me about – how to deal with being the only lawyer in the department, a/k/a the “loneliest number.” First, I think being an in-house lawyer is the best job in the legal profession. I say that having always been part of a good-sized legal department: at American Airlines, at Sabre Corporation, and now here at Marketo. The smallest department I have been associated with was my first year at Travelocity when there were five of us (one year prior to acquiring another online travel company in London which added several more to the team). I have never been a solo general counsel or member of a really small team. So, I have been a little hesitant to write about something where my experience is somewhat lacking. Having thought about it, however, I think I have enough general experience to share some thoughts on what I would be looking for – or doing – if I were to ever become a legal department of one. I think the ideas below also work well for someone who is part of a relatively small department.
I start with thinking about what drives someone to accept a position as a solo general counsel. I imagine that it is probably a combination of wanting to build something from scratch, of wanting to do it your way, and the potential for a substantial economic payoff down the road when the small or start-up company gets “big.” Additionally, I suspect someone wanting the “Lone Ranger” role enjoys the rocket-like pace and the challenge of being the only lawyer at a company. Regardless of your reasons, this edition of “Ten Things” discusses what you need to do and watch out for if you want to succeed as a legal department of one:
Somewhere in my first few months or so of blogs is one I wrote about what to do when your company has been sued. In it, I set out a lot of important things to do when you first get served with a complaint. There’s a lot of useful information in there, but I left out an important part of what to do in those early days of litigation. It was deliberate because I knew then that the topic deserved its own “Ten Things” post. So, I did what I usually do when I have an idea – I jotted it down on a Post-It note and set it aside, with every intention of coming back to it in a few months. Three years later I found that Post-It jammed in a folder with a lot of other blog ideas, staring at me like an abandoned puppy wanting to be taken home. Damn you sad-eyed Post-It note. Get in the car.
And here I am on a Sunday afternoon staring at that Post-It note again, finally willing to give it it’s due. What does it say? It says, “Early Case Assessment” (and “Call Mom”). I am a little saddened to see that in many eyes, Early Case Assessment has become an exercise in e-Discovery. There’s nothing wrong with that other than I think it makes the scope of an ECA much too narrow. Some e-Discovery review should be part of the assessment but it is not the focus. I think of ECA a bit more “old school” in scope and something that’s going to take a lot of elbow grease, detective work, and creative thinking – just what lawyers do best. This edition of “Ten Things” discusses what you need to do to put together a top-notch Early Case Assessment:
This will be my last post of 2017. The year has certainly flown by! Thank you all once again for continuing to read the blog (going on four years now!), for sharing it with your friends and colleagues, and for your great notes and suggestions. I wanted to end the year with a discussion about an issue I think is of critical importance to any in-house Legal Department: getting rid of the perception of Legal as the place where deals go to die. Almost all in-house lawyers have heard this joke and almost all agree that it is generally an unfair label. That said, I have been doing this a long time and I have had many conversations with folks on the business side of the house and sometimes the concerns that they raise about Legal “blocking” deals are valid. Let’s face it, there are times when the Legal Department stumbles on this front. Sometimes we even fall on our faces. I have stumbled, fallen, and crashed to earth too many times to count. And, no matter how hard I try, I will stumble again. But, I always try to learn something from each lesson. Most importantly, I try to remind myself that I and the Legal Department are here to serve the business. As in-house lawyers, we have two goals: value creation (“Yes”) and limiting value destruction (“No”). The hard part is balancing these two goals, especially when it comes to things the business really wants to do or contracts they want to sign. A good friend of mine once told me that the hardest negotiation you will have as an in-house lawyer is usually internal. Over time, however, I have developed some guidelines that help me get to “Yes” far more than I get to “No.” This edition of “Ten Things” will share my list of things you can do to make Legal the Department of Yes.
When I first started writing this blog back in November 2014, I had no idea what I was doing. While some might say I still don’t (thanks, Mom!), I have gotten better at it. This blog now has over 2,400 followers – which still amazes me – and I sometimes pause for a moment to think why that is. I remember that one of the reasons I started writing “Ten Things” was because I was frustrated with many of the blogs and articles I have read as an in-house lawyer. While full of good intentions most of them just weren’t useful or were just poorly disguised marketing pieces. I would read them and when I finished I wasn’t sure what I was supposed to take away from the article in my everyday practice as an in-house lawyer. My goal has always been to try to write about topics that are interesting and to provide practical, useful advice. My guiding principle has always been to imagine myself sitting in a room with someone and trying to explain the issue and the next steps. Then I write that down. Yep, pretty much that simple. I’m not saying it’s easy, but I am not solving world hunger here either. I’m just writing a blog.
Occasionally, I get asked, “what makes a good blog?” Usually, this is a question asked by someone who wants to start writing their own blog. First, I highly encourage any of you to start your own blog if you have any interest in and passion for writing. Second, keep three things in mind:
- Write about what you know and what interests you. Don’t’ try to be a fake expert on anything. If you don’t enjoy it, it will seem like drudge work. And we all have enough of that already;
- Write simply. Yes, you went to law school and paid a lot of money to learn about big words and Latin phrases but – and sorry to break the news – no one wants to read a blog that reads like an AmLaw 50 firm brief to the 7th Circuit. Stick to short sentences, active voice, and a definite lack of legal jargon. Impress people with your ability to write clearly and succinctly vs. breaking the meter on pomposity;
- Always give the reader some practical and usable advice. When I am done reading a blog post I love it when the writer gives me a list of “here’s what you should do next” or “here’s some sample language.” Providing useful tidbits is what keeps readers coming back.
I don’t always succeed with my blog but I do use these three points as my writer’s compass whenever I start to write a post. All of which brings me to the point of this edition of “Ten Things.” For past couple of years, I have posted a blog listing ten legal blogs that I think are worth your time to check out. You can click here to see my 2015 and 2016 editions. I continue to highly recommend all of the blogs listed in these prior posts. But, I am always on the lookout for new ones and, fortunately, there are a lot of great writers out there who have legal blogs that are worth your time and – in my opinion – closely follow my three points for what makes a good blog. But, you can judge for yourself. Even if you only find one of the blogs below to be useful to you, then I have met my goal. So, in no particular order of importance, here are my top ten blog suggestions for 2017:
I was looking back on my past blogs recently and I realized that it has been a while since I discussed issues related to intellectual property (“IP”). This week, I’ll try to remedy that oversight. For just about any company, IP is an important part of its assets be it trademarks, trade secrets, copyrights, or this week’s topic, patents. Most of my in-house career has been spent with technology companies (or working with divisions of those companies focusing on technology). Everything I know about the topic I picked up along the way. I am not a computer science graduate, nor did I study IP issues during law school. And I handled a few minor IP-related issues at my first law firm. It really wasn’t until I became the General Counsel at Travelocity that I had my initial experiences with patents. First, as the victim of the initial wave of “patent troll” cases. Second, when by default I became the leader of our patent harvesting committee. It wasn’t much of a program to start with but I decided to dig in and learn as much I could about patents and why it was important that we, as a company, tried to develop them. It actually turned out to be a lot of fun, especially getting to interact with our software engineers and other super smart people who were developing the next wave of company technology. Our patent program got better and more refined over time and the USPTO issued a number of patents to Travelocity. I was never one of the inventors on any of our patents but I like to think the legal department played a critical role in developing those patents. In my new job, I realize that we have a similar opportunity to build our program and enhance how we develop patents. So, for this edition of “Ten Things,” I am reaching back to my past to lay out the key points in developing an in-house patent program. I am going to assume you don’t know a whole lot about patents and (to keep things simple) I will focus on the US patent system – but the principles below work in just about any country:
[“Ten Things” has been nominated for a “Best Blog” award. You can vote by clicking here.]
Most of my friends know that I really enjoy Halloween. While the free candy part is pretty good, I have always liked a good scare. And this time of the year is full of them. Horror movies are a great example. I especially like that the jolt of adrenalin, increasing heartbeat, and sweaty palms you get when you’re watching some knuckle-head fraternity boy decide that he must go down into the dark basement to see “what’s making those weird noises.” Hey, moron, we know what’s going on down there: It’s a monster that’s going to rip your head off and splatter the walls with what little brains you apparently have! Horror movies are fun because you know it’s not real and nothing bad has really happened. There are some scares I don’t like, however. Driving on Texas highways is one. Some of the others are things I have seen at work. I have been an in-house lawyer for a long time. That means I have seen a lot of things. Some good. Some bad. Some downright scary. As I start to think ahead to 2018 and my “to do” list, I have been thinking back on these scary things. I want to be proactive in 2018 and make sure the Legal Department is taking steps to keep bad things from happening or planning what to do if they do happen. Being proactive (and not reactive) is when in-house lawyers add the most value to the company. In honor of Halloween, this edition of “Ten Things” identifies ten things that should scare the bejesus out of in-house lawyers:
[Ten Things has been nominated for a “Best Blog” award. You can vote by clicking here.]
Fall is my favorite time of the year. The weather’s cooler, the trees change color, and football (American style) permeates the airwaves. If you’re big into Halloween (and I am) you get to decorate the yard with zombies and gravestones and then hand out free candy to the neighborhood kids – and snag a few Twix bars for yourself. However, there’s more going on in the Fall than wearing a Nebraska Cornhuskers sweatshirt, admiring the foliage, and handing out candy. If you are in-house counsel, you know this time of year means one particularly thankless task: preparing an annual Legal Department budget. Adding to the fun is that you must figure out in October what you’ll be spending in August of the next year. But no one in the business is crying any tears for Legal. They are all going through the same process. And as we all know, Finance is telling you to be prepared to cut spending (or at best be flat year-over-year). Somehow, someway, you’re going to have to find a way to come up with a spending plan that tries to account for the knowns and unknowns associated with providing legal services to the company.
I recently got back in the in-house game and took on the General Counsel role for Marketo. Which means after two+ years of not having to worry about legal budgets, here I am with my dry-erase markers and my big white board of numbers planning for 2018 legal spend. And as I sit staring at this mess of numbers, I figure that there might be in-house lawyers out there who have never prepared an annual budget, are going through it for the first time, or are just interested in learning how others do it. While there is a lot written about budgeting for specific legal matters, I found very little written about preparing an annual budget. So, this edition of “Ten Things” will walk you through the process I am going through right now as I prepare our annual Legal Department budget: