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.
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).
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:
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:
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:
While in-house lawyers are always concerned about sexual harassment claims, the last year or so has provided a loud wake-up call regarding the highly negative impact of such claims on employees and on the company involved. While women can certainly engage in sexual harassment, the headlines over the last year – and recently with CBS CEO Les Moonves – are littered with deplorable accounts of men using their power to take advantage of female employees. These headlines follow a sea-change event where sexually-abused and harassed woman are refusing to suffer in silence. Instead, beginning with the downfall of movie producer Harvey Weinstein in late 2017, they are coming forward in waves with their stories, bringing with them a glaring hot spotlight on the darkest corners of corporate offices all over the world. This is the #MeToo era.
While the news headlines tend to focus on the misdeeds of the rich and famous, for in-house lawyers the concern is local – but just as important. The #MeToo movement provides added urgency for in-house lawyers to make sure their company is doing the things necessary to prevent disaster and ensure a safe workplace for women and men. As usual, dealing with sexual harassment claims in the #MeToo era comes down to getting the basics right. For many companies, it is easy to trace the devastating impact of a particularly damaging sexual harassment claim to two problems: failure to properly investigate and failure to take appropriate action. This edition of “Ten Things” discusses the key things you should be doing to both prevent sexual harassment from occurring and, if it does, properly investigating and resolving such claims:
A long time ago, most in-house legal departments were based in one location (or, at worst, one country). Over the past twenty years, this dynamic has dramatically changed for many companies. While a majority of smaller company legal departments still operate out of one location, not all do. Moreover, many medium and large companies have their in-house lawyers located in multiple offices, including both domestically and internationally. While definitely different than when I started in-house, I believe it is also better. Much better. Just like diversity in the workplace improves the company’s products and services, a legal department with members located in different places brings together multiple viewpoints, fresh legal analysis, different biases, and new work styles.
While this melting pot of differences makes things better over the long run, there are numerous challenges to managing such a group and bringing all of these differences together a way that functions smoothly. How do you lead across multiple countries and multiple time zones? How do you create unity in a team that rarely – if ever – sees each other in person? How do you ensure everyone feels engaged and that their contributions are valued when they sit several thousand miles away from the home office? All of these are tough things to work through, but all are solvable if you are willing to commit to doing the work necessary to bridge the gaps. In my current role, I have attorneys in four cities in the USA but we are adding attorneys in London and Tokyo this year. So, I will soon be faced dealing with the challenge of managing across countries. Fortunately, I have managed teams like this before. I’m not saying it’s easy, but I know it can be done. This edition of “Ten Things” discusses the things you need to do to manage a dispersed legal department:
More and more employers are affording their employees the ability to work from home or “remotely” as it is sometimes called. Studies show pretty convincingly that not only does the flexibility to work from home increase employee productivity and morale, it also heightens the company’s ability to attract and retain key talent. It can also save the company money in terms of reduced office space needs and other costs such as parking, utilities, etc. While working from home is growing, it is not growing as quickly at in-house legal departments. A lot of that has to do with one primary concern: “If I cannot see them, how do I know they are really working?” There are other issues, such as meetings, client interaction, department interaction, and so forth but the number one reason for not making work-from-home (“WFH”) an option for in-house lawyers boils down to trust.
As a former General Counsel I will be first to raise my hand and say that I was very reluctant when we first started allowing our in-house lawyers to work from home up to two days a week. It just felt “off” to me but I made a decision to put my reservations aside and focus on coming up with a plan that would either work out to the benefit of both the company and the employee, or would prove that WFH wasn’t really for us. I can report that it absolutely worked out fine for us both in terms of enhanced productivity and in terms of having a materially different “benefit” that made working in our legal department even more attractive, especially with respect to keeping existing talent and attracting new talent. That’s not to say that it was without bumps, we had them. And for some folks we needed to alter or revoke the privilege as it just didn’t work out in those cases. This edition of Ten Things tackles the question of whether work from home can work for your legal department and the things you need to do to ensure that any WFH policy works for everyone. While I am focusing on WFH, these same rules apply generally for managers and employees working a remote offices, i.e., offices away from headquarters.
As I mentioned in my last post (January 8), over the next few weeks I will dive deeper into some of the sample department “goals” I set out in that article. Today I will focus on this goal: “Build and retain extraordinary team with exceptional people.” I always put my “people goal” first because I truly believe that nothing gets done in legal unless you have top talent that is motivated and happy in their jobs. How do you keep and reward people so they stick around? The obvious answer is pay them well, have a good performance bonus program in place, and let them share in equity plans. The problem is, for many reasons, it usually is not fully in your control to make any of these three things happen. For purposes of this article, I am going to assume that you are doing what you can for your team around salary, bonuses and equity and, instead, focus on some low cost ways you can reward/recognize employees.
The beginning of any calendar year is always busy with key administrative tasks for an in-house legal department. My next several posts will deal with such items. One of the more daunting tasks (whether you are general counsel or not) is setting useful goals for the upcoming year. Legal departments do not always lend themselves to neatly setting goals like the business units, i.e., it can be difficult to measure “success” in legal vs. measuring profits and sales or setting key performance indicators (“KPI’s”). That said, setting goals for the department or yourself is important and a fresh opportunity to take stock of many things. I always approached yearly goal setting as, among other things, an opportunity to market the department (i.e., all the great stuff we were doing), get a deeper understanding of what was important to the business, and gather feedback on how the department could improve in the upcoming year. Meaning, don’t shirk the opportunity and think of goal setting as some type of pain-in-the-neck HR exercise you have to muddle through. Embrace the process as the more thought and effort you put into goal setting, the bigger the payoff. And, there will be a payoff for you and your team if done properly and with some enthusiasm.
As we head into the holiday season, this is the perfect time to give your anti-bribery program a health check. For those in the U.S., we tend to focus on the Foreign Corrupt Practices Act when thinking about anti-bribery laws. However, if you work for a company that operates globally, you know that many countries have anti-bribery laws and you need to be aware of those requirements as well. Enforcement of the FCPA/anti-bribery laws is not going away. In fact, in my opinion, it will get even more intense over the next few years. Given the level of fines and the reputational risk at stake, it’s important to ensure you are taking the right steps to give your employees the tools they need to stay on the right side of the line. At my prior company, we typically used the advent of the holiday season as the time to take a number of steps relating to FCPA/anti-bribery compliance. Below are ten things you can do now to help ensure compliance with anti-bribery laws. In key spots, I have included links to articles or websites with additional information you might find helpful.