I recently heard from someone I worked with when I was General Counsel of Travelocity. She was on the business side and worked on a lot of contracts. She reached out because she remembered an article I had written and posted on the legal department intranet site about “how to read contracts.” It was something I wrote for the business so they would be better prepared to work with my team on contracts. Apparently, she still used it over ten years later! But, she had lost her only copy and wanted to share it with some of her team at her new company so she could coach them up. She reached out to ask me if I still had a copy that I could share with her. I did and sent it over to her. Now she is teaching a new generation of her sales team how to read contracts. Reading back through it, however, got me thinking about the fact that not all in-house lawyers have a good understanding of how to read a contract – though we would all hate to admit it. It is not a skill they teach in law school (or least didn’t when I was there, i.e., I never saw an actual contract until I started working at a law firm). Instead, law schools focus more on contract theory and stuff like that. Which is all well and good until you’re faced with your first 50-page agreement and realize all that theory isn’t going to help you much as you start to wade through something that reads like a map written in ancient Greek.
Well, it’s that time of year again. Every August for the last several years I have devoted a “Ten Things” blog post to talking about super useful technology for in-house lawyers. Fortunately, there is always more cool tech to talk about and this year is no different. That said, if you want to go back and revisit some of the past cool tech blogs click here (2016, 2017, 2018). The ground rules are the same as always: (1) I receive no compensation for these recommendations, they’re just things I think in-house lawyers (any lawyers really) will find useful and helpful; (2) I try to focus mostly on free or low-cost technology – no breaking the bank for the most part; and (3) generally, everything I discuss should work for in-house lawyers anywhere in the world, not just the USA (if there is an exception, I’ll note it).
With that in mind, this edition of “Ten Things” discusses some of the coolest technology out there for in-house lawyers, things that will make your life a little easier and, hopefully, more productive:
I have been struggling to write this post about KPIs. It’s taken way longer than it should have – with several starts and stops. First, should it be KPI or KPIs? Just like the debate over RBI and RBIs in baseball, passions run hot on this point. I think KPIs sounds better so I’m going with that. Second – and slightly more important than the KPI/KPIs controversy – KPIs don’t work particularly well for in-house legal departments. Actually, I had this eureka moment a long time ago when I was first asked as General Counsel to provide “SMART” objectives for the legal department for an upcoming calendar year. I literally had no clue what they (HR) were talking about. And when I asked them for some examples, it was clear they had no clue either – at least when it came to developing SMART objectives for the legal department. For other parts of the business, SMART objectives seemed obvious and worked great. For legal, not so much. But, I (and my team) eventually figured it out and designed goals that were a little squishy – “SMART-ish” – but to which no one objected. You can see some examples of this in an older post titled “Setting Goals for the Legal Department.”
It used to be that companies selected outside counsel based on things like relationships, reputation, and tickets to sporting events/fancy dinners. Those days are fading fast, especially beginning around 2008 and the resulting aftermath of the “Great Recession.” That’s not to say that the above are no longer important (who doesn’t like front row NBA tickets?), but more and more the selection of outside counsel is based on the same principles and processes the company uses generally to select any vendor. This includes the use of RFPs (Requests for Proposals) to search out and find the best firm for the problem at hand. Like many things involving the business part of the law, in-house lawyers aren’t particularly good at this process – for now. I remember utilizing the RFP process while in-house on a number of occasions. We were okay at it, but not great. We got better over time as we learned a lot of lessons during the process – especially from dealing with the results of our process (which is a big clue that we did not always get a gold star for our efforts). Regardless, more in-house departments are starting to use the RFP process – either on their own initiative or because they were “persuaded” to by senior management or other circumstances. If you do it right, the RFP process can deliver tremendous value to the legal department and the company. This edition of “Ten Things” walks you through how to run a legal services RFP process the right way:
[I realized too late after my last post that I have surpassed 100 blogs. Wow. No celebration but, to be honest, I never imagined I’d write that many when I started “Ten Things” back in November 2014. But, here we are, all dressed up and lots of places still to go. So, thanks for reading and keep those emails and suggestions coming!]
As an in-house lawyer, I was always interested in any legitimate way I could keep information generated by the company or the legal department confidential. Or, more importantly, out of the hands of our adversaries. All of which meant I needed to stay on top of many things, from trade secret protection to teaching the business to write smart. But, as a lawyer, I had a particular interest in how privilege might apply to the materials I – or my team – was working on. The most obvious was the attorney-client privilege, something I have written about in a past blog and which ranks first on my list in terms of protecting information. Somewhat less obvious, and not as sexy as its cool, buff older brother, is the work product privilege. While more limited in the circumstances in which it applies, it is pretty powerful and can save the day when something happens to make the attorney-client privilege fall away. Kind of how Batman can curb-stomp some villains when Superman’s having an off day. I think it’s time we gave the work product privilege some love and this edition of “Ten Things” discusses what in-house lawyers need to know about our new, best buddy:
While general counsel and senior members of a legal department usually spend a significant amount of their time focused on the legal issues facing the company, they rarely give the proper amount of attention to the core feature of the department: the talent. Without talented individuals, none of the legal work gets done or gets done well. And the cost of replacing someone who leaves can be dramatic in terms of time-to-hire, expense, and impact on the ability to get work done. Consequently, all general counsel and department managers need to understand the importance of how to attract, train, and retain top-level legal talent in their organization. Here are some interesting statistics: in 1980, about 26% of licensed attorneys in the US were under the age of 35. In 2018, only 4% are under the age of 30, with an expected 15% decrease in the number of 35 to 44-year olds in the marketplace! The pool of in-house candidates is shrinking and as our population ages and lawyers leave, finding and retaining legal talent will – if not already – become a big part of the general counsel’s job (which means it will also become part of the job of everyone reporting to her). This edition of “Ten Things” discusses how to attract, train, and retain in-house legal talent:
If there is nirvana for in-house lawyers it is the following: delivering high-quality legal services at lower cost and with better results. The search for this legal “Eldorado” has gone on for decades with mixed results. Typically, you can solve part of the equation but only at the cost of other parts. For example, you can get lower costs but not always higher (or even the same) quality as provided by more expensive firms or systems. Moreover, given their workload and other priorities (i.e., legal work), it’s rare that the search for a solution to this conundrum becomes an imperative for in-house counsel. Still, the alluring value of solving the puzzle means that there is tremendous value waiting to be unlocked if and when a solution becomes available. Over the past few years, hope has appeared in the form of legal operations, a discipline that focuses on the “unique” idea of treating in-house legal departments like any other part of the business. Along with data analytics (which I discussed in my last post) and legal procurement, legal operations helps form part of the “Big Three” best practices utilized by savvy legal departments of any size. This edition of “Ten Things” walks you through what you need to know about how legal operations can help in-house lawyers increase efficiency, lower costs, and deliver better results:
If you have ever run an in-house legal department, or just been part of one, you know that one constant question is “how are we doing?” While it appears to be a simple question, it is fraught with multiple meanings. It could mean how are we doing against the budget? How are we doing with turning contracts for the business? How are we doing in the litigation? Or, how are we doing with our compliance efforts? Regardless of the “what” the “how” has troubled legal departments for decades. That’s because historically the legal department lacked the data to measure whatever question was being asked. Consequently, the legal department was often excused from performing or reporting with the same discipline and reliability as other parts of the business. Legal was special. Legal was excused. But, not anymore. Businesses of all sizes increasingly expect their legal departments to work with – and report out – data the same way as the rest of the company. That is why the use of data analytics is now a priority for in-house lawyers. This edition of “Ten Things” will discuss the basics of using data analytics in your legal department:
If you work as an in-house lawyer at a large, mature company, odds are good that the company has a well-functioning compliance department. But, if your company is small or not very mature, there is a good chance that this isn’t the case. In-house lawyers constantly look for ways to avoid or lessen risk that can damage the company. While it doesn’t always get the love it deserves, a robust compliance function is an important part of risk-reduction at companies of any size. As such, in-house lawyers should get behind the creation of a compliance group if there isn’t one or enhancing the existing one whether it sits in the legal department or not. A strong compliance department moves the company from reactive to proactive in detecting and preventing wrongdoing. Besides avoiding trouble, this can lead to substantially reduced fines with regulators who, as a first step, usually zero in on whether the company has a robust compliance program or not. The compliance department also helps establish the right ethical tone at the company, a tone that makes it easier for employees to make the right choices. While many executives don’t see the value of the compliance function – despite the many proven benefits – the in-house lawyers do. But, they frequently don’t know what to do next. This edition of “Ten Things” walks through the basics of setting up or enhancing a compliance department:
For the last several years, non-compete agreements have been under attack in the U.S. by regulators, legislators, and even the courts. For example, in October 2018, Massachusetts joined states like California, North Dakota, Montana, Idaho, Utah, and others by enacting a law regulating non-compete agreements, including providing for “garden leave” and making them inapplicable to “non-exempt” employees. Courts do not favor non-competes and will often look for any reason to limit them or invalidate them completely. But, love them or hate them, non-compete agreements are here to stay, and businesses continue to rely on them as one way to protect customer goodwill along with confidential and proprietary information. See, for example, the recent battle between Google’s Waymo unit and Uber over Anthony Levandowski and the theft of self-driving car technology and know-how. Still, it’s clear that the forces fighting against non-competes are stronger than ever. For example, there is legislation pending in Vermont to ban all non-compete agreements, and at the federal level to ban them for low-wage workers. Which is why it’s important for in-house counsel to take every step possible to ensure the non-compete agreements used by their companies have the best chance of surviving regulatory and judicial scrutiny. This edition of “Ten Things” discusses some tips on how to draft an enforceable non-compete agreement: