Ten Things: Preparing Outside Counsel Guidelines – The Keys

Managing your relationship with outside counsel can be challenging.  The good ones work hard to make it easy but, even so, there are times when you and your outside lawyers are not on the same page.  One of the areas where this is most common is billing.  In short, what should you expect to pay for and what should you not expect to see on a bill?  Moreover, there is the issue of logistics, i.e., when do you need to get the bills, what information needs to be included, etc.  There are many facets of your relationship with outside counsel that you need to think about and constantly manage.  One way to do this is through an engagement letter.  While this is a good device to manage some aspects of a particular project, the better path is to create and maintain a set of “Outside Counsel Guidelines” — a standing set of rules for how you and your outside counsel will interact on key issues, especially on billing.

Most in-house legal departments have such guidelines ranging from a few pages to over 50 pages or more.  Some newer or smaller legal departments may not have any guidelines at all.  Regardless of where you find yourself on the continuum of “got them” to “don’t got them,” as we near the end of the year this is the perfect time to either plan on creating guidelines in 2017 or updating the guidelines you already have on the shelf.  If you’re in the latter position, it might be time to think about a wholesale review of your guidelines and whether or not you have a set that matches up with how the department operates today or whether you are living with something created 10 to 15 years ago that doesn’t work well in today’s environment.  This edition of “Ten Things” will set out some of the basic things you need to consider when preparing or updating your Outside Counsel Guidelines:

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Ten Things: An Index to All the Posts – November 2014 to November 2016

I published the first “Ten Things You Need to Know as In-House Counsel” blog about two years ago this month.  It all began after my talking with a group of young in-house lawyers who asked me “What do I need to know to be General Counsel some day?”  Hmmm, I thought.  I should start writing this stuff down.  So I have and it’s been a surprising success.  Very surprising.  The blog has over 1,400 followers and keeps growing by leaps and bounds.  It was nominated for “Best Blog of 2016” by the Expert Institute and the American Bar Association will be publishing a “Best of” collection of posts in book form in early 2017.   I have been asked to speak to a number of different groups of in-house lawyers and legal departments based on “something they read in the blog.” And – what I consider the neatest part –  I have heard directly from readers all over the world via email, LinkedIn, and even on the phone.  I enjoy hearing from all of you (good or bad), especially if you find the blog helpful or, even better, if you have ideas for future posts.  Always feel free to contact me with your feedback, questions, or ideas.

I still haven’t figured out how to create a good index to all the posts on the blog site (the book will have updated posts set out by category).  So, please bear with me for at least one more “Index” post.  I will eventually figure it out (or upgrade my site).  Until then, and since there are at least 500 new followers since I last did this, it’s a good point in time for an updated index of “Ten Things” posts (all 50 of them), hyper-linked and in chronological order from past to most current:

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Ten Things: How to Plan a Legal Department Offsite

A common tool used by businesses to develop strategy, refine plans, set goals, energize the team, enhance teamwork and cooperation is the offsite, i.e., where a group in the business goes “off site” to meet as a team for one or several days in remote location.  Some offsites can be elaborate affairs involving hundreds of people at a 5-star resort with “name” guest speakers and entertainment.  Others are small – just a conference room at a local hotel with a handful of executives and some white boards.  Successful offsites of any size have one thing in common: they require a lot of planning to pull off.

While the business side of the house uses the “offsite” tool frequently, many legal departments do not.  This might be because of budget constraints, logistical issues (i.e., all the lawyers are gone?!), or just lack of a good reason to host one.  None of these are a good excuse for not hosting a legal department offsite on a regular basis, i.e., every year or every other year.  A legal department offsite is a valuable tool and if utilized correctly can bring big benefits to the department and the company.  I have planned several legal department offsites and, for the most part, they were very successful – though there were things I would “do differently” at the next opportunity.  The edition of “Ten Things” discusses how to plan and host a successful legal department offsite:

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Ten Things: The Search for the Perfect Arbitration Clause (or at Least a Really Damn Good One)

If you have ever been involved in civil litigation in the USA as an in-house lawyer you know that it is expensive, intrusive, slow, and often leads to unsatisfactory results, including lack of confidentiality and, sometimes, punitive damages.  If that’s not enough, the U.S. system also provides for class-action litigation which can turn “small” claims into “big” claims.  While some of this is unique to the U.S. system, these same issues are creeping into the litigation process in other parts of the world, including Europe and parts of Asia.

For the past 15 years or so, many practitioners and commentators have touted arbitration as the remedy to the many ills of litigation.  Unfortunately, the arbitration process is steadily becoming just as bloated, slow, expensive, and unsatisfying as litigation, leading you to ask “why arbitrate at all?”  My experience is that the arbitration process is not really the problem.  Rather, it is the fact that those preparing arbitration clauses are not spending enough time digging into what they really want their arbitration process to look like if it ever becomes needed.  Instead, I see contracts with a one sentence “arbitration clause” stating simply that all disputes under the agreement are subject to arbitration under the rules of [insert name arbitral body here].  If this is all there is to your arbitration agreement, you will let others control your arbitration process.  Those “others” tend to be outside counsel (for both sides) who, unless directed otherwise, will fall back to their traditional litigation comfort zone.  Consequently, unless you set out a detailed arbitration process, you will end up with just another version of traditional civil litigation.

In this edition of “Ten Things,” I search for the perfect arbitration clause.  Alas, much like Moby Dick, El Dorado, Sasquatch, and honesty in politicians, the search comes up dry.  Frankly, there is no such thing as a “perfect” arbitration clause because every situation is different.  But, with a little work you can come up with a “really damn good” arbitration clause, one that will better suit your company’s interests and goals.  It requires time and effort on your part, such as taking a long look at the clauses you are using now and asking yourself some tough questions about what you really want to get out of an arbitration process.[1]  If you’re ready to roll up your sleeves, here are some things you need to consider and think through when drafting an arbitration provision:

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Ten Things: How to Create a Great Legal Department Website

In my last post I discussed how to “market” the Legal Department to the business.  One of the items I mentioned was the need to have a really good Legal Department website available to your internal clients (i.e., behind any company firewalls and available on the company intranet only – and not to the public).  I received several notes back from readers asking me to elaborate on what makes a Legal Department website “good.”  After sending a few responses I realized that this might be a question other readers have and the answer would make a good topic for “Ten Things” (and it seems like others are starting to ask the same question about websites).

The goal of a Legal Department website is threefold: 1) it markets the Legal Department to the business by providing business colleagues with easy access to useful information and materials that make their day-to-day work easier (e.g., form agreements); 2) it frees up time for the members of the Legal Department by allowing them to post useful information and materials and provide a place for “self-service” (i.e., company employees can find answers and documents on their own without having to directly utilize the time of the in-house legal team); and 3) it provides a private place for the Legal Department to store materials and can provide a single point of access to tools utilized by the lawyers (i.e., a Legal Department “desk top”).  If you can develop a website that meets these three goals you can significantly improve the delivery of legal services, lower costs, and improve efficiency.  You can also provide an opportunity for newer lawyers to “own” a piece of a project and show their leadership and problem solving skills.  This edition of “Ten Things” discusses some practical things you can do to create (or improve) your Legal Department website:

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Ten Things: How to Market the Legal Department to the Business

It sucks being a cost center.  While a good General Counsel can argue all day long about how much value the legal department is adding to the company, at the end of the day her legal department is still a cost center to the business.  And if the business only sees you as just a cost center, then you will line up with the rest of the cost centers when the budget axe comes falling or the layoff machine gets cranked up.  This means all in-house lawyers should be focused on how to constantly market the department to the business.  This is important because while Legal is a cost center, it is – hopefully- an extremely valuable cost center and one the business believes delivers high value to the company (especially when compared to the cost of engaging outside counsel).  Moreover, if the legal department can show that it is responsible for money coming into the company or significant savings vs. forecast, then you have an even better story to tell.  Legal departments with a good story to tell occasionally get additional resources (as rare as that may be).

Unfortunately, the only experience most in-house lawyers have with the marketing of legal services are the “pitch” materials from Law Firm A or Law Firm B.  Those materials don’t really work for in-house lawyers trying to show the importance and value added by the legal department.  This edition of “Ten Things” will discuss some basic and straight-forward ways you can “market” the legal department to the business in order to help them understand what the department does, the value it brings to the company, along with developing friends and allies throughout the entire company – never a bad thing for a “cost center” to have in its pocket:

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Ten Things: How to Delegate – The Essentials

It’s 5:30 a.m. morning and no one is up.  You figure if you get up early you can get ahead of the emails and do some productive work.  It’s lunch time.  You figure if you eat at your desk you can get ahead of the emails and do some productive work.  It’s 6:30 p.m. and you just got home from the office.  You figure if you fire up your laptop for an hour you can get ahead of the emails and do some productive work.  It’s 10:30 p.m., the kids are asleep, your spouse is watching “Game of Thrones” and you figure it’s the perfect time to get ahead of the emails and do some productive work before you go to sleep.  It’s the weekend, you… Okay, I’ll stop.  I know you get it.  Just about any in-house lawyer worth their salt has been/is locked in this cycle.  The problem is you never get ahead of the emails and you never have enough time to do productive work.  If you could delegate some of your work, you might be able to break free of this vicious pattern.  That sounds nice but a big part of the problem is that most lawyers suck at delegating.  Why is that?  It’s primarily because no one ever taught us how to delegate.  They just told us to delegate, which is about as helpful as telling us to “invent rocket fuel.”

I was an “okay” delegator as an in-house lawyer.  I got better over time because I slowly figured out the “how” of delegation.  Even now, as I look back, I realize I committed most of the classic errors and there was a lot more I could have done to better delegate work (and doing so would have made my team/department stronger and me less stressed).  Simply put, becoming good at delegation will allow you to be more productive and get your work done within a reasonable set of hours every day.  Since I know you also want to watch “Game of Thrones” now and then, this edition of “Ten Things” will discuss “how” to delegate:

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Ten Things: Litigation Financing – A Primer for In-House Counsel

It is a common refrain in legal departments all around the globe: how do we get enough money to do the things we need to do to protect the company?  There are always more matters clamoring for money than there is money available.  This is especially true with litigation.  If your company is being sued, you have little choice other than to spend the money needed to defend your interests (unless you feel a quick settlement is a better call).  If the company has meritorious claims, then it often faces the difficult choice of whether to spend the money needed to proceed.  If not, valuable claims may be lost.  If yes, then money that could be spent on other parts of the business is re-routed to legal fees – and, unfortunately, under accounting rules money “invested” in a litigation claim is not treated the same as money invested in the business generally.  To deal with this, in-house legal departments try a variety of measures to reduce legal expenses, from reduced hourly rates or fixed fees to contingency fees and blended rates or less expensive counsel.  See my blog post on effectively managing legal spend.

Over the past four or five years another potential solution has emerged.  Depending on which side of the table you are sitting, the solution is either a blessing or the manifestation of supreme evil.  The solution is called “litigation financing” and it is something every in-house counsel should be aware of and thinking about.  This edition of “Ten Things” will give you an outline of the basics around litigation financing:  (more…)

Ten Things: ‘Cool Tech’ for In-House Lawyers (2016)

On August 12, 2016, I will be one of the lunch-time speakers at the State Bar of Texas 15th Annual Advanced In-House Counsel Course in beautiful San Antonio, Texas.  I will be joining Jason Smith of Apttus and Jane McBride of Optimus Legal to discuss ways to “Work Smarter, Not Harder.”  A lot of what we’ll be talking about will involve the use of technology (along with some good old-fashion “non-technical” ideas).  If you know me, you know I love gadgets and technology.  Give me some neat technology to play with and I am off to the races, trying to think of all the ways I can use it in my work and personal life.  And there is always something new to try.  Last year, I wrote a post about using technology to increase efficiency in the Legal Department.  I focused a lot on some of the bigger technology efforts most in-house Legal Departments now require, e.g., matter management, e-discovery, along with some of my favorites like Practical Law and Getting the Deal Through, etc.   Everything I wrote about in that post is still relevant and it’s worth taking a look back at that one.  But, since time does not stand still and there are plenty of new programs, apps, and other tech bits for me to write about, this edition of “Ten Things” will discuss 2016’s “cool tech” for in-house lawyers.  I should point out that I do not receive anything to endorse the technology below, it’s just my opinion on what I think in-house lawyers, located just about anywhere in the world, might find useful:

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Ten Things: Ten Habits of Highly Effective In-House Lawyers

If you are a regular reader of this blog, you know that I have written posts on the keys to being a successful in-house lawyer and the steps to take if you are interested in becoming the General Counsel, the latter being one of the most popular pieces I have written to date. A couple of weeks ago I came across an old, dog-eared copy of Stephen Covey’s 1989 business self-help masterpiece, “The 7 Habits of Highly Effective People.”  If you haven’t read it, it’s worth picking up a copy.  As I flipped through the pages of the book I realized that most, if not all, of it is still relevant almost 30 years later.  And it got me thinking about some of the things I learned as I advanced in my career as an in-house lawyer.  Through luck, hard work, trial and error, excellent mentors, and other things, I stumbled upon a number of “habits” that I think make for highly effective and successful in-house lawyers.  This edition of “Ten Things” will discuss what I think those habits are:

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