Almost all in-house lawyers have dealt with mediation at some point. If you haven’t to date, you will. Mediation is a process to resolve disputes between parties where a neutral third party helps facilitate the discussions, negotiation, and (hopefully) ultimate settlement of the dispute. Unlike arbitration, mediation is generally voluntary and non-binding. Meaning, in addition to picking their mediator, the parties get to decide whether and how they will resolve their dispute. There are times when mediation is mandated, i.e., the parties must go through the process such as, for example, when their contract requires it as part of a dispute escalation process. Likewise, there are times when a court will require mediation with the judge (or magistrate judge) acting as mediator (sometimes called a “settlement conference”). Mediation is often your best opportunity to settle a dispute before undergoing the expensive process of all-out litigation and trial. Unfortunately, many in-house lawyers — or their clients – treat mediation like a poor cousin to arbitration and waste the opportunity. This is usually because of either indifference or the idea that you can “just show up” and mediate. Wrong! There are many things you need to know about mediation in order to have the best chance at a successful outcome. This edition of “Ten Things” discusses the key points in-house counsel need to know about mediation.
I realized the other day that it has been a while since I posted an index to all of the blog posts – November 2016 to be exact. Since the last time I did this the blog has grown to well over 2,000 direct subscribers and the American Bar Association has published my book (based on the blog) entitled “Ten Things You Need to Know as In-House Counsel: Practical Advice and Successful Strategies.” Speaking of which, last week I received the highest compliment I could imagine about the book: my Dad read it and said it was “pretty good!” All heady stuff for a guy who started out just wanting to jot down some of the things he learned over the course of a 20+ year career as an in-house lawyer.
I know there are a lot of great blogs and websites out there for you to read (and I’ll be writing about those later this year). So, I am very appreciative of the fact that you make time to read my posts. Based on the comments, the emails, and from talking with many of you directly, I hope I can continue to write about things that interest you and do so in a way that is practical and useful. If not, then I have missed my mark. I know I have missed my mark with being able to prepare a proper index on the actual blog site. I am still a bit wary about messing with the technical aspects of WordPress because I think I’ll delete everything. I know that’s not really likely, but that’s my biggest fear. Anyway, I promise I’ll keep working on it but in the meanwhile, by popular demand(?), here is an index of all of the posts from the beginning back in November 2014 through today:
’Twas brillig, and the slithy toves
Did gyre and gimble in the wabe:
All mimsy were the borogoves,
And the mome raths outgrabe.
“Jabberwocky” – Lewis Carroll
I am a fan of Monty Python’s Flying Circus. So, instead of titling my article slaying the email “beast”- which would be the more conventional path – I am taking a slightly different road and reaching back to a movie from the 1970’s entitled “Jabberwocky” based on the poem by Lewis Carroll and featuring members of the Monty Python troupe. If you have not seen the movie nor read the poem, do not fear. No knowledge of either is required to understand this article (though you are missing out on some good laughs). All you need to know is that the Jabberwocky monster is a terrifying beast that truly needs a serious butt-kicking. Just like email.
My love/hate relationship with email goes way back. Like many, once I had a taste of the email-crack, it became the main way I communicated at the office. And like an invasive species, it quickly replaced written memos, letters, phone calls, and old fashion face-to-face chats. I realize now this was all a big mistake as, over time, I found myself in a horror movie of my own making. Like “The Blob,” email soon oozed into every part of my day along with many of my evenings and weekends. Smart phones only increased its deadly, hypnotic power. I knew I needed to get email under control and through a lot of trial and error I came across several great ideas and discovered a few of my own – all designed to take back the work day from email. If you woke up today interested in getting out from under the tyranny of email, you’re in luck. Grab a cup of coffee and settle in. This edition of “Ten Things” shares some simple but highly effective ways you can control the amount of email you deal with on a daily basis:
One of the great benefits of being an in-house lawyer is that you do not have to spend time chasing clients and developing business. All the work you will ever need is typically right in front of you – 24/7. And you don’t have to worry about collections, your client always pays on time. One the downsides of being an in-house lawyer is that you only have one client – the company – and you need to keep them happy – 24/7. Actually, while the company is your official client, the reality is you have many in-house masters. Practically every employee of the company may need to come to you and the Legal Department for assistance and it is your job to help them. The more challenging task is keeping them happy. Just like clients of outside law firms, in-house clients present many challenges beyond simply expecting you to do good legal work. Having sat on both sides of the in-house/outside counsel table, I feel in-house clients can be more challenging to manage because they usually expect more from you than just legal advice, i.e., they want you to be “part of the business” as well. And the meaning of being “part of the business” varies by individual. Learning how to manage all of these expectations and demands is a key part of being a successful in-house lawyer.
I have had my share of in-house clients who thought I walked on water, as well as those who wanted to tie a boulder to my neck so I sunk into the water – all the way to the bottom. Fortunately, I had more of the former than the latter. But, it did not come out that way without some work on my part. Over the 20+ years I spent in-house I learned a lot about managing clients and things to do (and not do) to keep them happy. While a lot of this is fairly basic, even the basic stuff is not always readily apparent. With that in mind, this edition of “Ten Things” will discuss things you can do to get your in-house clients to love you and the Legal Department.
Unless you’ve been living under a rock (and that may not be such a bad idea these days), you know that “social media” is everywhere. President Trump has certainly underscored this fact through his near daily use of Twitter. It seems like almost everyone has a personal Twitter, Snapchat, or Facebook account. In addition, most professionals have a LinkedIn account. They might also have an Instagram account and a blog or two as well. I personally am guilty as charged on all of these counts. Likewise, most companies have multiple social media accounts and they are used by the CEO, CFO, Marketing, Corporate Communications/Public Relations, HR, Investor Relations, and for crisis communications. Lastly, many companies are now using collaboration tools like “Slack” and “Huddle” to connect their employees (and their employees with their customers). These tools are, in many ways, simply private social media sites.
While there are many positives to social media, there are also a lot of negatives. Or at least the potential for negatives. As in-house counsel you need to be aware of the problem areas, especially as to your own use of social media. This edition of “Ten Things” discusses some of the basic things you need to think about when using social media or advising your business colleagues about the same. The answer isn’t to stop using social media, but to always be thinking about the implications of what you post. You need to amplify your self-awareness skills whenever you go online. And always keep in mind that while your social media account may be “personal” it reflects on you and will (good or bad) impact your relationship with the company. Here are some things to think about:
There are an amazing number of issues, trends, and headaches to keep track of as in-house counsel. So much, that it can be difficult to know what to focus on. When I was General Counsel I made time each year to step back and try to take a look at the big picture, i.e., given everything going on in the world, what should I and my department be spending time on right now? Certainly, I wanted to make sure things that were important to the goals of business where high on our list. But I also wanted to “benchmark” my team and make sure we were aware of what other legal departments were doing. I would gather information from many different sources and then come up with my own list of current essential “issues/best practices” that I thought we needed to focus on. Generally, my list contained items dealing with risk reduction, technology needs, management practices, key analytics, and ways to enhance the value of the department to the business.
Though I have not been GC for a little while, I keep my eyes and ears open to what’s going on in the world and how might it affect in-house lawyers. I thought I would highlight some of the important things I see out there right now — things that should be on every in-house lawyer’s “watch list.” This edition of “Ten Things” discusses the essential items I would be focused on right now if I were running a legal department in 2017:
I know I took an Accounting 101 class in college. But, I remember very little about it other than I somehow managed to pull a “B” in it and something about the “accounting equation.” When I got to law school, there was no math (unless you count student loans). Even when I began working at a law firm, there was some need for basic accounting and finance but certainly nothing I worried about on a day-to-day basis. Then I went in-house and things changed. Accounting and finance are the language of business and if you don’t speak the language then you’re just another tourist in ill-fitting shorts, t-shirt, and [insert sports team name] baseball cap. By “tourist” I mean that you’re not likely to stay very long if you don’t speak the language and the language of business is numbers. After a few meetings where “EBITDA” and “CAGR” flew over my head, I knew I needed to buckle down and start figuring out what all this number stuff was about. Over time, I got to the point where I could at least follow along at meetings when the Finance folks pulled out the spreadsheets.
Over the years I kept a notebook of key financial terms, formulas, resources, and other information I think are key to being a successful (and valuable) in-house attorney. None of this will make you an expert but, hopefully, I can give you some basics to focus on and help you navigate the most common issues. This edition of “Ten Things” focuses on ten things you need to know about basic finance:
At the end of every blog, I always ask my readers to please let me know if they have any topics they would like me to write about. While I don’t get a huge number of “requests,” I do get some – though I am still trying to figure out what to do with “My boss is an a$%#^le, what do I do?” I did, however, recently get a reader request that I thought would be a good topic to cover this week. If you work for a company of any material size, there is likely a Board of Directors. For smaller, family-run companies, this usually means a Board comprised of several family members with very little risk of problems from outsiders. But, as the company gets bigger, and especially if the company is publicly traded, the risk of problems grows quickly. As in-house counsel one of your main tasks is to protect the Board of Directors from going down the wrong path or setting themselves up for potential exposure from lawsuits or regulatory sanctions. This edition of “Ten Things” discusses some of the basic things you should be doing to help protect the Board, regardless of whether the company is public or private:
There are a number of unpleasant tasks that in-house counsel must perform on occasion. Probably near the top of the list is participating in/leading an internal investigation. The reason it’s such a crummy deal it because it means that the company’s own employees or management have potentially engaged in some type of wrong doing. That wrong doing can range from breaking the company’s business ethics policy to engaging in some type of criminal behavior. Whatever the case may be, it’s going to take time that could otherwise be spent on more productive matters and it may mean the end of someone’s employment with the company – or worse, someone you know may get to wear an orange jumpsuit when it’s all over.
While unpleasant, when the circumstances arise, in-house lawyers owe a duty to their client – the company – to ensure that any internal investigation is performed properly and done in a manner that is defensible and as bullet-proof from attack as possible. That is not an easy task. There are many ways an internal investigation can go sideways. A poorly conducted investigation can lead to more problems and cause more damage than the behavior under investigation in the first place. This is why it’s so important for in-house counsel to “get it right” from the get go. I was part of a number of such investigations in my career and hindsight gives me the ability to look back and realize there were, of course, many things we could have done differently. Those “lesson’s learned” form the basis for this edition of “Ten Things” where we take on the fundamentals of a proper internal investigation:
One of the most exciting events for an in-house lawyer is when their company becomes involved in a merger/acquisition, joint venture, or other strategic transaction. It becomes even more challenging when the transaction is international in nature. And it really becomes fun when it involves multiple companies in multiple countries. While such transactions are rare for most companies, many in-house counsel will need to deal with a trans-border transaction at some point in their careers, either as a prime member of the deal team or as a subject matter expect who participates in a specific part of the deal. Regardless, there are a number of things you need to be aware of in order to help facilitate a smooth landing of the deal. A while back, I participated on a panel at Baker McKenzie’s annual “Doing Business Globally” event in Dallas, Texas. My panel discussed winning strategies in cross-border deals. Joining me were Michael E. Santa Maria, a partner in the Dallas office of Baker McKenzie, and Matt Haltom, the General Counsel for Sally Beauty Supply. This edition of “Ten Things” will borrow from the presentation we gave at that event (and thank you to the good folks at Baker McKenzie for permission to do so), along with some recent updates and links to resources. Here are ten things you need to know for a successful trans-border transaction: