Author: Sterling Miller

Almost 25 years of in-house legal experience as General Counsel, Corporate Secretary, and Chief Compliance officer of Marketo, Inc., Sabre Corporation (NASDAQ: SABR) & Travelocity.com. Prior to going in-house, I was an associate at a large St. Louis-based law firm. I serve on several advisory boards and board of directors, have written several books, and consult with corporations and law firms. I am currently Senior Counsel to the Dallas office of Hilgers Graben PLLC. I am available to in-house lawyers and corporate legal departments for coaching, consulting, and speaking engagements.

Ten Things: Legal Operations – What In-House Lawyers Need to Know

If there is nirvana for in-house lawyers it is the following: delivering high-quality legal services at lower cost and with better results.  The search for this legal “Eldorado” has gone on for decades with mixed results.  Typically, you can solve part of the equation but only at the cost of other parts.  For example, you can get lower costs but not always higher (or even the same) quality as provided by more expensive firms or systems.  Moreover, given their workload and other priorities (i.e., legal work), it’s rare that the search for a solution to this conundrum becomes an imperative for in-house counsel.  Still, the alluring value of solving the puzzle means that there is tremendous value waiting to be unlocked if and when a solution becomes available.  Over the past few years, hope has appeared in the form of legal operations, a discipline that focuses on the “unique” idea of treating in-house legal departments like any other part of the business.  Along with data analytics (which I discussed in my last post) and legal procurement, legal operations helps form part of the “Big Three” best practices utilized by savvy legal departments of any size.  This edition of “Ten Things” walks you through what you need to know about how legal operations can help in-house lawyers increase efficiency, lower costs, and deliver better results:

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Ten Things: Using Data Analytics in an In-House Legal Department

If you have ever run an in-house legal department, or just been part of one, you know that one constant question is “how are we doing?”  While it appears to be a simple question, it is fraught with multiple meanings.  It could mean how are we doing against the budget?  How are we doing with turning contracts for the business?  How are we doing in the litigation? Or, how are we doing with our compliance efforts?  Regardless of the “what” the “how” has troubled legal departments for decades. That’s because historically the legal department lacked the data to measure whatever question was being asked.  Consequently, the legal department was often excused from performing or reporting with the same discipline and reliability as other parts of the business.  Legal was special.  Legal was excused. But, not anymore.  Businesses of all sizes increasingly expect their legal departments to work with – and report out – data the same way as the rest of the company.  That is why the use of data analytics is now a priority for in-house lawyers.  This edition of “Ten Things” will discuss the basics of using data analytics in your legal department:

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Ten Things: Building a Strong Compliance Department

If you work as an in-house lawyer at a large, mature company, odds are good that the company has a well-functioning compliance department.  But, if your company is small or not very mature, there is a good chance that this isn’t the case.  In-house lawyers constantly look for ways to avoid or lessen risk that can damage the company.  While it doesn’t always get the love it deserves, a robust compliance function is an important part of risk-reduction at companies of any size.  As such, in-house lawyers should get behind the creation of a compliance group if there isn’t one or enhancing the existing one whether it sits in the legal department or not.  A strong compliance department moves the company from reactive to proactive in detecting and preventing wrongdoing.  Besides avoiding trouble, this can lead to substantially reduced fines with regulators who, as a first step, usually zero in on whether the company has a robust compliance program or not.  The compliance department also helps establish the right ethical tone at the company, a tone that makes it easier for employees to make the right choices.  While many executives don’t see the value of the compliance function – despite the many proven benefits – the in-house lawyers do.  But, they frequently don’t know what to do next.  This edition of “Ten Things” walks through the basics of setting up or enhancing a compliance department:

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Ten Things: Drafting an Enforceable Non-Compete Agreement

For the last several years, non-compete agreements have been under attack in the U.S. by regulators, legislators, and even the courts.  For example, in October 2018, Massachusetts joined states like California, North Dakota, Montana, Idaho, Utah, and others by enacting a law regulating non-compete agreements, including providing for “garden leave” and making them inapplicable to “non-exempt” employees.  Courts do not favor non-competes and will often look for any reason to limit them or invalidate them completely. But, love them or hate them, non-compete agreements are here to stay, and businesses continue to rely on them as one way to protect customer goodwill along with confidential and proprietary information.  See, for example, the recent battle between Google’s Waymo unit and Uber over Anthony Levandowski and the theft of self-driving car technology and know-how.  Still, it’s clear that the forces fighting against non-competes are stronger than ever.  For example, there is legislation pending in Vermont to ban all non-compete agreements, and at the federal level to ban them for low-wage workers.  Which is why it’s important for in-house counsel to take every step possible to ensure the non-compete agreements used by their companies have the best chance of surviving regulatory and judicial scrutiny.  This edition of “Ten Things” discusses some tips on how to draft an enforceable non-compete agreement:

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Ten Things: Essential Issues for In-House Counsel (2019 Edition)

Hello everyone!  Best wishes for the New Year to all of you.  I am excited about 2019, especially when it comes to this blog – and I’ll have some news to share about me next month.  I have a lot of (hopefully) interesting topics on my list for the coming 12 months.  And I am working on volume two of “Ten Things You Need to Know as In-House Counsel – Practical Advice and Successful Strategies” for the ABA.  Look for it to come out later this year.  As I have for the past several years, I like to begin the year thinking about what issues will be most important for in-house lawyers over the upcoming 12 months.  As you can imagine, there is plenty out there that we all need to be concerned about.  Still, I read a lot over the holidays and jotted down plenty of notes about the most interesting developments.  Obviously, I have no monopoly on setting out what’s important.  As my wife often tells our daughters, “Pay no attention to the man behind the curtain.”  Still, I think the below is a helpful list of topics, some of which everyone will find applicable to their legal department.  This edition of “Ten Things” sets out my 2019 list of essential issues for in-house counsel:

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Ten Things: Best Legal Blogs for In-House Counsel (2018 Edition)

[Don’t forget to vote for “Ten Things” as your favorite legal blog.  To vote, simply click here.]

Well, it’s near the end of 2018 and time for my annual list of the best legal blogs for in-house counsel.  This is my fourth list, a tradition starting in 2015.  In case you’re curious, here are my past lists for 2015, 2016, and 2017.  I still highly recommend the legal blogs listed in those posts, but since I like to keep finding new blogs there will once again be no repeat “winners.”  Before we get to it, I did want to take a moment to say thank you to all of you readers of this legal blog.  I have been writing “Ten Things” for over four years and we are now at over 3,100 subscribers.  I know I have said this before, but never in my wildest dreams did I think this blog would be that popular.  And most of all, I really appreciate it when any of you take the time to drop me a note or post a comment!  So, thanks for reading and for passing the blog along to others.  Also, as always, I am tremendously impressed by the number of bloggers out there and the great content they generate (the ABA released its best blogs list for 2018 last week).  If I can help shine a spotlight on the talented writers below, that’s pretty neat too.  Alright, enough gabbing, let’s get to the blogs.  Here are my choices for the ten best legal blogs for in-house lawyers for 2018:

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Ten Things: What to do When Your Company is the Subject of a Government Investigation

[Vote for “Ten Things” as your favorite legal blog.  To vote, click here.]

I’ve been around a while and I know from first-hand experience that there is little more disconcerting to an in-house lawyer than being contacted by the government when it starts investigating your company.  It makes your stomach feel like The Hulk has reached down your throat to give your intestines a good squeeze.  What happens in such an investigation, in large part, depends on what’s being investigated and on how you respond. You will know the seriousness of the circumstances fairly quickly, depending on what tools the government uses for its initial contact with your company. Regardless of how it starts, there are many things common to any company’s response to a government investigation. There are several initial questions to ask when a government investigation into your company is launched.  This edition of “Ten Things” explores what to do when the government comes knocking on your door:

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Ten Things: Minimizing Risk in Commercial Contracts

After “will I go to jail for that?” the most common question asked of in-house counsel typically involves commercial contracts and whether “it’s okay for us to sign this?”  There are multiple parts to this seemingly simple ask, but the core of the question has to do with risk.  More specifically, if we sign this contract are we taking on an unacceptable level of risk?  Risk too is subject to multiple meanings.  Are we talking about commercial risk, legal risk, financial risk, reputational risk, or what?  Regarding the many facets of the question, it’s typically the in-house lawyer’s job to come up with the answer.  Unfair or not, because lawyers are trained issue-spotters, the analysis of risk in commercial agreements and the process of minimizing that risk usually falls in the lap of the in-house legal department.  Unfortunately, the process of spotting and analyzing risk is rarely black and white.  It’s generally highly subjective and it’s not always right.  Over the course of many years, I have learned about – or come up with – a number of ways to minimize risk in commercial agreements.  This edition of “Ten Things” will walk you through some of the best ways to do so:

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Ten Things: Legal Procurement – The Next Big Thing for In-House Lawyers

I know that artificial intelligence is the hot topic of the moment for in-house legal departments.  And it should be.  It promises tremendous cost savings and productivity enhancements for in-house lawyers.  While everyone is very excited about the new kid in town, there is something brewing out there that is equally exciting but which rests on some pretty mundane financial principles: procurement.  Or, more specifically, legal procurement.  Now, before you go running into the hallway screaming that it will be a very, very cold day in hell before you let anyone from procurement get involved with your law firms, hear me out.  There’s something here that’s worth exploring.  This edition of “Ten Things” will provide a primer on the legal procurement process:

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Ten Things: “Cool Tech” 2018 Edition

I am a little bit late with my “Cool Tech” post for 2018.  Not surprisingly, I have found it much harder to write my blog on a regular basis once I became general counsel again.  I’m not complaining though – I think being an in-house lawyer is the best legal job on the planet (other than Federal appeals court judge).  If you’re attending the Annual ACC meeting in Austin, Texas in October be sure to check out my panel on contract risks on Monday, October 22 at 2:30 pm.  Stop by for the session and afterward come up and say “hello!”  Also, I just heard from the American Bar Association and they want to publish the second volume of my “Ten Things” book.  That will come out sometime in 2019.  And, when I publish this blog, I should have over 3,000 followers (which just blows my mind).  Okay, enough digression, let’s get on with this edition of “Ten Things.”  Long-time readers know that every summer I write about some of the “cool tech” I have come across and that I think in-house lawyers might find interesting too.  You can catch up on the prior years here: 20152016, and 2017.  Everything I mentioned in these past posts is still worth reading.  But, there is always more good stuff out there to talk about!  And, as always, I receive nothing to mention the products in my blog.  I just think in-house lawyers will find this tech interesting.  Finally, I tend to skip big, expensive tech purchases as “Cool Tech” and look to discuss technology that is immediate, affordable, and useful.  Here we go:

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