Hi everyone! I hope you are either knee-deep in or getting ready for a wonderful holiday season. I know that I promised that my next post would be the annual best legal blogs edition but I decided to take a short detour (which I get to do because it’s my blog). I promise that before 2020 is over, I will post the best blogs edition. For today, however, I wanted to take up a question I have gotten repeatedly over the past six years or so of writing this blog: which posts are my personal favorites? So far, I have been able to nimbly dodge the question, like a Mike Pence press conference. It’s not that I don’t have favorites (I do) – I’ve just been too lazy to go back through all 128 blogs and pick which ones I like best. Today, however, I have been waxing a bit nostalgic about the blog and have re-read a number of the older ones and, while doing so, started putting a list together in my head about which ones I would most highly recommend to an in-house lawyer new to the blog. Rather than keep them in my head (where, trust me, there is plenty of room), I decided to write them down. It’s not an easy task (making the list that is, the writing down part is pretty easy). I think they are all interesting and useful, but – like in Animal Farm – some are more interesting and useful than others (and if you have never read Animal Farm – time for you to remedy that oversight pronto). So, in no particular order, here are my top ten favorite “Ten Things You Need to Know as In-House Counsel” blog posts:
Trials are rare. Like wins for the Dallas Cowboys or finding gold on Oak Island (seriously, guys give it up!). If you have been practicing law long enough you know that most commercial litigation never goes to trial (at least here in the USA). Disputes typically get settled either through mediation or on the eve of trial. Unfortunately, everyone spends a lot of money and time before that eventuality occurs. This is why it is important for in-house lawyers to properly explain the litigation process to the business, especially to senior management. If they know what’s likely to happen, odds are good you won’t get yelled at (well, not yelled at as much). As I have noted before – litigation is a fool’s game. But, it is a game that every in-house lawyer will likely have to play at least once. And, despite the cost, the risk, the smell, and the general messiness of it all, every once in a while, cases go to trial.
Pre-Coronavirus, this meant everyone heading down to the courthouse for a good old-fashioned battle royal (that’s American for “melee”). In-house lawyers tagged along, even though they really didn’t have much to do in terms of actually putting on/defending the case. Still, they do have a role. A very important one. And when the “Great Pandemic” passes, and the courts reopen, trials will pick back up and in-house lawyers everywhere will need to be prepared in case their company is actually part of an honest to goodness trial. If you have never been part of the process before, it can be intimidating and a bit scary – and you will likely be unsure just what the hell you should be doing other than staying out of the way. I have been part of many trials as an in-house lawyer and this edition of “Ten Things” will set out some of the things in-house lawyers should be doing at trial:
I am sure that by the title alone you realize there will not be a lot of the usual jokes and funny comments in this edition of the blog. That’s because there is simply nothing humorous about having to fire someone, probably among the most difficult tasks faced by any in-house lawyer who manages people. After questions about how to show value, the most frequent question I get from readers is “how do I fire someone?” Actually, it is usually phrased as “should I fire [someone]?” My initial thought is that if you have gotten to the point where you, as a manager, are asking these questions, it is not really a matter of “if,” it is a matter of “when.” But, if you want to advance in the legal department, and if you want to become general counsel, it is almost inevitable that at some point in your career you will have to fire someone. Is it ever fun? No. Is it stressful? Yes. Is it ever easy? Usually not (unless someone does something so awful that immediate termination on the spot is the only appropriate response). I have had these difficult conversations numerous times over the course of a long in-house career. Fortunately, not many. But, I remember each of them very well along with what went into coming to the decision and preparing for the conversation. This edition of “Ten Things” will set out some of the things you need to know to properly fire someone in the legal department:
Antitrust law and Big Tech is hot right now. BTS/Blackpink K-Pop hot. Here in the USA at least, where the Department of Justice is on the verge of suing Google for (alleged) competition law violations, the DOJ and the FTC are waist-deep into investigating Big Tech generally, and a panel of the House of Representatives just issued a report calling for the break-up of Big Tech. In Europe, regulators are looking at specific laws to dampen the influence of Big Tech by limiting certain tactics – and where Amazon is about to take its turn in the dock. Most of the behavior in question is what is known as single-firm conduct, i.e., companies acting alone but in ways that draw scrutiny from competition regulators and private litigants. I wrote about this a while back in a post titled “Sherman Act Section 2 – The Monopoly Man Cometh.” Clever title aside, it is a fairly detailed look into single-firm conduct and where problems typically arise. But, these investigations are also looking at Big Tech contracts and agreements. So, now is a good time to take a look at Section 1 of the Sherman Act, i.e., agreements between one or more parties that may violate antitrust law. As you will see, it can be just as murky and confusing as Section 2 (and that’s saying something). Unlike Section 2, however, it is typically easier to counsel the business on how to stay out of trouble when it comes to improper agreements vs. single-firm conduct. And, no matter where you practice, most of the concepts below apply as competition law globally is similar when it comes to this issue. This edition of “Ten Things” provides an overview of Section 1 and lays out some things you should be counseling your business colleagues on to help them avoid tripping up on anticompetitive agreements:
This may explain many things about my personality but I have always gone to work feeling like I could get fired any day and at any time. I am not sure why that is the case (and I am not particularly interested in lying on a couch and talking it out). I just accept that it’s how I am. The fear of getting fired has always driven me to find ways to not get fired. Ultimately, I settled on always trying to be the most valuable member of any legal team I was part of. I figured that the last person to get fired (short of bringing a handgun to the office and taking some potshots at the boss) is the most valuable person on the team, i.e., the “indispensable” MVP. And that mentality generally served me well over the past 30 years or so (though there is a fine line between making yourself valuable and being a sap – and Mrs. Ten Things thinks I may have drifted over the line on occasion). As I look around this never-ending pandemic, Covid-y world, I can imagine that many in-house lawyers may be feeling the same type of anxiety, especially if your company is not exactly thriving in the current economic climate. But, even if that is not the case, I have spent a good part of the past six months or so writing about how legal departments can show their value to the organization. How individual members of the department can do the same is a natural extension of that theme and a worthy goal. This edition of “Ten Things” sets out some ways you can work to make yourself “indispensable” to the legal team and the company:
I was recently interviewed by Mel Scott for her awesome the “Counsel” podcast. I had a lot of fun talking with her and we chatted a good bit offline before she hit “record.” Part of that discussion was about how the Ten Things blog got started. If you bought the first Ten Things book, you know the story from the introduction section. If you haven’t gotten around to shelling out your hard-earned dough (or better yet, expensing it to the company), the short story is that I was speaking at a legal event in late 2014 and afterward some young in-house lawyers came up to me and started asking me questions about things they should be doing to advance their careers. Never being one to shy away from handing out some pearls of wisdom, I mentioned several things that came to mind. All of which they proceeded to write down. Hmmm, I thought. If anyone should be writing this stuff down, it should be me! And that, my friends, is how it all started. What I don’t talk as much about is that many of the posts come from presentations I made to my various in-house teams, at off-sites, team meetings, small groups, etc. If there was a projector or a whiteboard, it was time to break things down!
Last week I was cleaning out a bunch of old files on my computer (because that’s how I roll). I had the television on in the background and one of my favorite movies was playing, Zombieland. If you have never seen it, please correct that oversight at your first opportunity. If you have seen it, you know that Jesse Eisenberg’s character, “Columbus,” has a list of rules that he relies on to survive the post-apocalyptic wasteland that is Zombieland. The rules are all tried and true common sense things that will help keep you safe. Just as Columbus was discussing the merits of “cardio” and the “double-tap,” I came across a document in my files from 2012 – my rules for surviving as an in-house lawyer. Wow! Coincidence? Fate? Divine inspiration? I’m not sure. But, it doesn’t matter – I had found my next blog post! I remember writing these “Rules” down one night and presenting them to my team at an off-site and looking through them brought back a lot of great memories of all of those fantastic people who I miss every day (some of whom even read this blog on occasion). Moreover, as I read through the rules I realized a) they are still 100% valid, b) you can see a lot of what became Ten Things posts in these rules, and c) if there is a zombie attack, these are pretty worthless (except maybe for “eat lunch” – if you’re a zombie).
Regardless, this edition of Ten Things will be a little different. I am simply going to republish my rules as written. No embellishment, no snarky commentary, no cut off at “10.” Just a list of rules all in-house counsel can take to heart to survive the apocalyptic wasteland that is the Covid-ridden, murder-hornet-ed, wildfired, election year hell we call 2020. Ready? Here we go: (more…)
Okay, let’s just admit it – 2020 has kind of sucked. Like an episode of [Not] Finding Bigfoot on Animal Planet (and, hopefully, ten seasons of not finding him will sate everyone’s Bigfoot lust). I read on Facebook that 2020 is proof that time-travel has been invented because someone keeps going back to February 2020 to try and “fix things” but only ends up making everything worse (“killer hornets” for crying out loud…). It’s also an election year here in the USA which means the stupid factor needle is buried deep in the red. Oh, the humanity. But, there is some good news I can share. It’s August. And August means it’s hot here in Texas. Crazy hot. August also means it’s time for my annual “Cool Tech” blog! Something I look forward to writing every year, i.e., my top ten list of cool technology I think all in-house lawyers should check out. This is the sixth edition and you can check out past editions here: 2015, 2016, 2017, 2018, and 2019. As always, I get nothing for listing these items. It’s just my opinion that these are worthy of your checking out. And with no further ado (or footage of Bigfoot), this edition of “Ten Things” sets out my “Cool Tech” picks for 2020:
I want to pivot away from the “value” discussions that have dominated the last several “Ten Things” posts to get back to some tactical, nuts and bolts problems facing in-house lawyers from the corporate governance-side of things. I have written about basic corporate governance as well as how to protect your board of directors, but one question I have gotten several times over the past few months is how to prepare proper board of directors meeting minutes. Preparing board meeting minutes is another one of those tasks that no one really teaches you how to do, you just kind of figure it out. Or, at least, that’s how I learned. My learning method was pretty simple, when I first stepped into the role of corporate secretary I looked at the minutes of the last year of board meetings prepared by my predecessor and kept what I liked and discarded what I didn’t like – guided mostly by common sense. I also found a few publications on proper board meeting minutes and read those (some of which are noted later in this post). That’s it. Over the years, I learned a lot about drafting board meeting minutes, mostly on what not to do because you could fill a file cabinet with all of the different advice on what to do when drafting minutes (and who needs another file cabinet full of crap?). Anyway, since you all asked so nicely, this edition of “Ten Things” discusses my thoughts on how to prepare proper board of directors minutes:
Greetings from hot, humid Dallas, Texas where I am “sweltering in place” as the COVID-19 pandemic continues to wear out its welcome. It’s so hot and icky here that apparently Satan – on a vacation visit – said, “Screw it, I’m heading back to Hell where it’s cooler!” Those may not actually be his exact words, but you get the point.
For those of you who have been along for the ride since late 2014, you know that we are coming up on six-years of “Ten Things.” Along with longevity, we’ve picked up almost 4,200 subscriber “followers” along with hundreds more who get the blog directly through other means. Many of the posts have been republished in legal newsletters, magazines, law school classroom materials, seminar materials, and other forums. As I’ve said many times in the past, that all just absolutely, positively blows my mind. A huge “thank you” to all the loyal readers out there, especially to those who pass along the blogs to friends, colleagues, and on LinkedIn!
As I was working on some new blog posts this past week, I realized that I have not posted an index to all the posts in over three-years. That’s a long time (and I am first to recognize that it can be clunky to try to work your way to past blogs that might be relevant to what you’re looking for – I guess you get what you pay for with a free WordPress site…). So, I decided to put the new blogs off to the side for a bit (don’t worry, they’ll be posted soon enough), and put together an updated index to all the posts, going back to November 2014. I was a little shocked to see that we’re up to number 119! That’s a big pile of …, well, a big pile of something. Hopefully, of things you want to read.
Anyway, just in case you needed something more to read while you’re working remotely, or maybe you’re a new follower and had no idea there were so many posts, this edition of “Ten Things” sets out – in chronological order – all of the “Ten Things You Need to Know as In-House Counsel” blogs, from the November 2014 introduction to last month’s post on improving your 1:1 meetings. Have fun (and don’t laugh too much at the early ones – I got better!):
In my last post, I dealt with the importance and effectiveness of 1:1 meetings from the viewpoint of the employee. As promised, I will now discuss 1:1 meetings from the viewpoint of the manager. The first thing you should do is go back and re-read the last post because pretty much everything on that list applies to the manager side of the equation as well, either in terms of understanding where your employee is coming from or common sense tactics that make for better 1:1 meetings regardless of which side of the table you sit. Second, if you have never had any training on how to conduct 1:1 employee meetings do not feel bad. You are not alone! Coming up through the ranks of in-house lawyers, my only experience with 1:1 meetings were the ones I attended as an employee. Some managers were really good at it and some were pretty bad. Since most companies don’t spend a lot of time training people (especially in-house lawyers) on how to manage people, when I became a manager and started holding my own 1:1 meetings the key, for me, was to mimic the things I thought prior managers did well and not do the things I thought sucked. Over time, and with a little research on the side, I like to think I developed a process for pretty effective 1:1 meetings (though if you worked for me in the past you may disagree!). Regardless, since it is my blog, I get to at least pretend those 1:1’s were awesome. And now it’s time to share that big bag of awesomeness with you. This edition of “Ten Things” shares my tips on how to host effective 1:1 meetings with your direct reports: