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:
It’s difficult to be part of any business and not hear about “risk.” It’s everywhere. If risk were a woman, it would be the Hollywood “It Girl” of 2016. Put another way, risk is the new black. It’s on the lips of every CEO, CFO, and board member, as it should be. And, anything that is important to the board and the C-Suite, is important to the Legal Department. In fact, over the past five or so years, one of the key responsibilities businesses are placing on in-house lawyers is spotting and managing risk. The business wants its in-house lawyers to be the ones who sniff through virtually every situation looking for risk (legal or otherwise). What this means is that, more and more, in-house counsel need to be masters of the company’s business operations and strategy (both short and long term), because you cannot successfully spot and manage risk unless you understand how the company operates and where it wants to go.
Generally, when asked about risk, most in-house lawyers respond retroactively, i.e., they talk about risk in terms of things the company has already experienced – a recent lawsuit, a data breach, an internal investigation, etc. While this is helpful, it is only part of calculus of identifying risk. The harder part (and the more valuable skill) is being able to look forward and see risk. While a more valuable skill, my experience is that there is little to no training around how to “look for risk,” let alone how to evaluate it or report it out. For many in-house lawyers, it is largely a self-taught skill. My goal here is not to write a treatise about risk or risk management. I have read enough of those types of articles to know that they look really impressive, have complicated charts, graphs, and formulas, but most are hard to apply in the everyday, fast-paced in-house world. I want to set out a handful of simple ideas and processes you can use to spot and identify forward-looking risk and to evaluate and manage that risk alongside the business. This edition of “Ten Things” will discuss a few guidelines that will help you be better able to fulfill the demand from the business that you become “Risk Spotter in Chief” or, as I was often called, the “Risk Guy:”
One of the most valuable skills an in-house lawyer brings to a company is the ability to negotiate. In-house lawyers negotiate contracts, M&A transactions, litigation resolution, government/regulator inquiries, internal squabbles, and a host of other issues. While negotiation is an important skill, it is rarely – or poorly – taught in law school (certainly here in the USA). Meaning, unless you were fortunate enough to learn negotiation skills while employed at a law firm (and I’d wager that it is hit and miss whether your law firm truly spend time teaching negotiation skills), your ability to negotiate is largely self-taught. Some of us get by on instinct and natural ability, some of us flounder a good bit, sometimes doing a great job, sometimes not.
I am a self-taught negotiator, picking up bits and pieces of good and bad advice along the way. I have negotiated a large number of contracts and settlements in many different countries and I supervised those that did as well (learning as much from that process as being in the room). One thing I learned for sure was that regardless of where you fall on the continuum of negotiation skills, there is always room for improvement. As usual, there are some core things you need to know and understand in order to develop or improve your skills in this area. This edition of Ten Things will discuss how to negotiate:
It has been about 18 months since I published the first “Ten Things You Need to Know as In-House Counsel” blog post. I have to admit that I continue to be surprised by the popularity of the blog. I have tried hard to consistently write about things that matter to in-house counsel and do so in a way that is practical, informative, and actionable – drawing on my own experience of 20+ years as an in-house lawyer. That fact that you guys find it interesting just blows my mind sometimes. The blog has almost 900 direct followers (and I hope to get that number to over 1,000 sometime this year). There are also thousands of in-direct followers who get the blog via an email blast or through one of the number of legal publications that re-publish many of the posts. What I really appreciate, however, is the many, many emails and Linked-In notes I get from readers all over the world: from Canada, UK, India, Singapore, the Middle East, Central and South America, Asia, Turkey, and of course, the USA. 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 if you have feedback, questions, or ideas.
As you have probably guessed by now, I love to write. You can follow me daily on Twitter at @10ThingsLegal where I post things of interest to in-house counsel daily. I also post more substantive (but short) articles on Linked-In just about every day as well. Check out the posts on my Linked-In publication wall (and feel free to connect with me as well). I write a monthly column for Thomson Reuter’s “Corporate Counsel Connect” e-zine called “The Insider.” And my first book, “The Evolution of Professional Football” (American football that is), is available at www.SterlingMillerBooks.com and on Amazon. Which brings me to some more exciting news – “Ten Things You Need to Know as In-House Counsel” is in the first stages of becoming its own book. Stay tuned for more information about when it will be available to buy (hard copy and e-book). I will also be looking for some people to write short blurbs/forward material to include in the book, so let me know if you’re interested in doing that.
As I noted in my first few posts, I am not the most tech-savvy blogger. But, I have learned a lot over the past 18 months and I am getting better at things. One thing I have not figured out yet is how to create a really useful index of all of the posts. You can search month-by-month on the site, but I am still trying to figure out how to build-out an index by category or by title. Bear with me on that. It will happen! And if you have any ideas, feel free to share them. Until then, it’s a good point in time for a comprehensive index of “Ten Things” posts (all 39 of them), hyper-linked and in chronological order from past to most current:
Over the past six months you have probably been bombarded with data privacy articles, questions, and concerns regarding the European Union (“EU”). Given the sheer volume of material on the topic, it is difficult to figure out what you really need to know about the current state of data privacy and data protection in Europe. We saw the European Court of Justice strike-down the US-EU “Safe Harbor” agreement last October (which will likely be replaced with the new “Privacy Shield” agreement). We know that the EU recently approved a new EU-wide data privacy law. The hard part, however, is figuring out what it all means. This edition of “Ten Things” will try to sum things up in a useful way so when those questions and concerns come across your desk, you have some ready answers and a road map for the next steps you and your company need to take to ensure compliance with all of the changes in EU data privacy law:
I want to continue my effort to post a few articles about basic corporate law issues. Last time I wrote about about corporate governance. This week, I’d like to discuss dealing with the Board of Directors (the “Board”). The members of the Board of Directors are elected by the shareholders of a corporation. Their job is to manage and supervise the company’s officers and management and to look out for the interests of the shareholders. Directors owe the shareholders/company a “duty of care” and a “duty of loyalty” while serving on the Board.
The Legal Department interacts with the Board in several ways. Typically, the Corporate Secretary (the person who manages the operational aspects of the Board along with other duties related to maintaining the corporation) sits in Legal. Often the General Counsel is also the Corporate Secretary. The Corporate Secretary works closely with the Chairman of the Board and the Governance & Nominating Committee. The Chief Compliance Officer may also sit in Legal and works closely with the Audit Committee. Similarly, any significant litigation, contract, acquisition, or other material legal event will come to the attention of the Board and may require its input or approval in some instances. The Board will take up these legal matters at regularly scheduled Board or committee meetings, or at a special meeting if the circumstances warrant. When these ad hoc legal events come to the attention of the Board, various members of the Legal Department may be invited to the meeting in order to present the issue to the Board or be a subject matter expert for any questions the members may have. Any in-house lawyer can be intimidated the first time they meet the company’s Board of Directors or prepare materials for them (even if it’s just responding to an email). This edition of “Ten Things” will give you some pointers on how to deal with the Board:
I have not spent much time in this blog on the “corporate” side of the in-house world. Over the next few posts, I will discuss some key issues regarding basic corporate law. If this is an area you focus on already, you have it down, but for many in-house lawyers whose practice focuses on litigation, IP, employment, or other areas it’s not something you see every day. If you hope to sit in the general counsel chair one day, it’s important to have a solid understanding of several basic areas of corporate law.
Underlying most everything in corporate law is what I call “basic corporate governance.” This includes the formation of the corporation, operation of the Board of Directors (the “Board”), delegation of authority, annual compliance issues, and so on. This edition of Ten Things will discuss basic issues regarding corporate governance. While the below is fairly USA-centric — as the details of corporate law vary widely by jurisdiction — I will include some reference material for corporate governance issues outside the USA toward the end:
There are few things as wasteful and painful as litigation. And that’s from someone whose career started as a litigator and, after a long tenure in-house, now works for a litigation boutique! While sometimes it is simply unavoidable and necessary, any in-house lawyer can tell you that litigation is expensive, time-consuming, distracting, frustrating, risky, and very difficult to predict outcomes. As a result, ending litigation is usually a great feeling (sometimes celebrated with bottles of expensive champagne). Still, litigation rarely ends with a jury verdict or bench decision. It usually ends with a settlement, i.e., an agreement by the parties to the litigation to end the matter based on some agreed upon terms. Sounds simple, right? It’s not.
A settlement agreement is an extremely important document and should receive the same level of attention to detail as any other complex contract your company might enter into. There are many ways a settlement can go “wrong” and that is why the agreement is not something to leave solely to the outside lawyers once the “deal has been made.” In-house counsel need to be intimately involved with the documentation and execution of the deal. Simply put, careers can end because of “bad” settlement agreements. You do not want to be on the receiving end of a settlement agreement that turns out NOT to be the deal you (and the CEO or Board) thought you had to end the litigation. Since many in-house lawyers rarely deal with litigation, let alone settlement agreements, this addition of Ten Things will discuss some of the key things you need to keep in mind when settling litigation so you can do your best to make sure it’s really over:
My friends who are outside lawyers are always interested in what is was like to be in-house counsel. Besides being envious of the fact that I did not have to keep track of my time, they would (and still do) ask me “what do in-house lawyers want from outside counsel?” I also keep in touch with a lot of the in-house lawyers I worked with or met over the course of 20+ years on the “inside.” They often share with me the things they like and don’t like about outside counsel. I recently had conversations with both “sides” and it got me thinking about how in-house lawyers are not good at telling their outside counsel what they want, while outside counsel are not good at asking in-house lawyers what they need. So, I decided to try and crack this nut. This edition of “Ten Things” focuses on what in-house lawyers really want from outside counsel. It is written based on my in-house experience and from the point of view of a General Counsel (but I am pretty confident these points resonate with all in-house lawyers regardless of position, here in the USA and globally):
As general counsel I saw a lot of writing. Emails, memos, policies, correspondence, etc. Most of what I saw produced by my team was well written. Some of it was not. Wait, hold on. I take that back. It was well written for a lawyer but it was not well written for what the business needed. Here’s an example: one day I received a very long email from a lawyer on my team discussing some litigation risks in a dispute brewing on the horizon. It was an email we planned to share with our executive team once it was finished. It began with a very detailed discussion of the facts and the law, including case citations and citations to secondary legal treatises. There were plenty of Latin phrases (I had to look some of them up in a Black’s Law Dictionary), lots of “Wheretofore’s” and other legal jargon. There were even a few typos. And, at the very end, was a long summary of everything I had just read along with a squishy conclusion saying essentially, on one hand this but on the other hand that, with no clear recommendation on what to do next, no conclusion about the most likely outcome given the different risks at play, and no mention of next steps. There was so much information to wade through, it was like trying to find the score of the game in a Grantland Rice column. I knew that if we sent this out to the senior management, heads would explode long before they got to the end of the email.
I thought I knew what the problem was immediately. The lawyer who had written it had recently moved in-house from a big law firm. Sure enough, when I walked down to have a chat with them, I saw a treatise on legal writing on their desk, right next to a copy of “The Bluebook.” Ah yes, problem confirmed. I asked him/her to pop down to my conference room to talk about the email. We sat down and I said, “The first thing you need to do is forget everything they taught you about writing in law school and at the firm.” Secondly, “And here are some things you need to know to write successfully as an in-house lawyer.” This edition of Ten Things shares those points with you: