Month: October 2016

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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