Ten Things: The “Strategic” In-House Lawyer

As we come to the end of 2019, I wanted to write about an issue I hear a lot about.  In fact, in many of my conversations with in-house counsel, this is the number one topic, i.e., “how do I become a strategic in-house lawyer?”  While sometimes this is a self-generated concern, it arises mostly because someone (the CEO, the General Counsel, or whomever) told the lawyer during an annual review or another setting that they need to be more “strategic” with their thinking.  Sadly, that is typically about the extent of it, that is, “be more strategic.  Now go forth and sin no more.” From personal experience, I can tell you that receiving such a command from your boss without more is about as useful as a mud fence in a rainstorm.  But, as many in-house lawyers are learning, it is not enough to be an excellent lawyer with deep legal skills and institutional knowledge.  That just gets you to the table.  The business wants more out of its in-house legal department, especially from the general counsel and other senior members of the legal team.  They want you to be “part of the business” and they want you to be “strategic.”  Unfortunately, no one teaches you how to be strategic in law school – at least not when I was there.  For most, you just sort of figure it out as you go along.  That was my method.  I cannot tell you that I figured out the magical incantation that makes you a strategic thinker, but I have learned many relevant lessons over the years.  This edition of “Ten Things” shares my thoughts on how to become a strategic in-house lawyer:

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Ten Things: Looking for a New In-House Job

I do a lot of coaching of in-house lawyers and one question I am often asked is “should I look for a new job?”  From experience, I understand that deciding to look for a new position is one of the hardest decisions an in-house lawyer has to make.  There are many articles discussing moving from law firms to in-house and vice versa, but few – if any – on the decision that most frequently faces in-house lawyers, i.e., when is it time to move on to another in-house position?  Followed closely by “if so, how do I go about it?”  In the past, in-house lawyers pretty much stuck with one company for their entire career (e.g., I spent 20+ years with my first company).  Today, that type of longevity is often the exception.  It is far more common (maybe even expected) for in-house lawyers to move around on their own volition to several different companies.  There are many reasons why such a move may – or may not – make sense.  Ultimately, you do not want to be in a new job for three months only to regret your decision with a bitterness only found on Johnny Cash albums.  Avoiding such a sad state of affairs means the decision to move on is not something you make on a whim.  A lot of work and thinking must go into your decision-making process.  This edition of “Ten Things” walks you through some of the things to consider when thinking about moving to a new in-house job:

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Ten Things: Software Audits – Scary Stuff!

It’s a nice, cool late October morning, the time of year when the shadows grow darker and longer and “spooky” stuff lurks around every corner.  You’re at your desk sipping some coffee and checking emails when a new one comes in from Sarah, the CIO, marked “Urgent.”  She says that she received a letter from some outfit called the Business Software Alliance asking the company to conduct an audit of its use of “Company X” software and threatening legal action and potential damages if the company fails to cooperate.  She attached a copy, so you open it up and read through it for yourself.  Your first thought is WFT? and that this is some kind of scam and you should just toss the letter in the trash and move on.  That would be a mistake.  A very big mistake. Like a going down into the basement alone in the dark to check out odd noises and scratching sounds type of mistake.

Congratulations, you just received your first software audit letter and if you’re like most in-house lawyers what’s ahead for you and the company is going to come as a big, painful surprise.  Much like that opening scene in Night of the Living Dead when someone says “They’re coming to get you, Barbra…”  Yes, indeed, they are.  The software companies that is, not a ghoulish horde of brain-eating zombies (though you may prefer that to the audit).  The good news is that you will likely only see a handful of these letters over the course of your career at any one company.  The bad news is whatever you had planned for the next few days is now on hold as you will need to immediately start to work on how to respond to the letter and preparing for the audit.  I have dealt with a few software audit letters over the course of my in-house career and there are some tried and true things you should do when faced with one.  This edition of “Ten Things” lays out some of the lessons I have learned regarding software audits:

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Ten Things: Escaping Meeting Hell

If you’ve been an in-house lawyer long enough you know that one thing as inevitable as taxes, death, and another Fast and the Furious movie is meetings.  Lots and lots of meetings.  Meetings you set, meetings you’re invited to, meetings with the boss, meetings as the boss, status meetings, “kick-off” meetings, post-mortem meetings, meetings with law firms, meetings about all the damn meetings you’re having, meetings… well, you get the point.  Some days you look at your calendar and it’s back-to-back-to-back-to-back meetings.  There is barely time to go to the bathroom, let alone get something to eat or just catch your breath (or Heaven forbid do some work).  Worst of all, sometimes you’re sitting in a meeting asking yourself “why the hell am I here?” or “what’s the point of this meeting?”  If you’ve had enough of the Alcatraz I call “Meeting Hell,” then read on.  Time for a jailbreak.

I’ve been around for a while and I’ve hosted a lot of meetings and I’ve attended a lot of meetings.  I’ve also found ways to get out of meetings or, if not, make them more productive and less painful.   This edition of “Ten Thing” discusses my tips for escaping Meeting Hell.  So, step into my cell and let’s have a chat.  And keep it down, the warden has ears everywhere:

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Ten Things – How to Read a Contract

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.

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Ten Things: Cool Tech for In-House Counsel (2019 Edition)

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).[1]

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:

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Ten Things: Ten KPIs All In-House Legal Departments Should Track

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”[1] 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.”

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Ten Things: Running a Legal RFP Process the Right Way

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:

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Ten Things: A Primer on the Work Product Privilege

[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:[1]

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Ten Things: Attracting, Training, and Retaining In-House Legal Talent

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:

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