Somewhere in my first few months or so of blogs is one I wrote about what to do when your company has been sued. In it, I set out a lot of important things to do when you first get served with a complaint. There’s a lot of useful information in there, but I left out an important part of what to do in those early days of litigation. It was deliberate because I knew then that the topic deserved its own “Ten Things” post. So, I did what I usually do when I have an idea – I jotted it down on a Post-It note and set it aside, with every intention of coming back to it in a few months. Three years later I found that Post-It jammed in a folder with a lot of other blog ideas, staring at me like an abandoned puppy wanting to be taken home. Damn you sad-eyed Post-It note. Get in the car.
And here I am on a Sunday afternoon staring at that Post-It note again, finally willing to give it it’s due. What does it say? It says, “Early Case Assessment” (and “Call Mom”). I am a little saddened to see that in many eyes, Early Case Assessment has become an exercise in e-Discovery. There’s nothing wrong with that other than I think it makes the scope of an ECA much too narrow. Some e-Discovery review should be part of the assessment but it is not the focus. I think of ECA a bit more “old school” in scope and something that’s going to take a lot of elbow grease, detective work, and creative thinking – just what lawyers do best. This edition of “Ten Things” discusses what you need to do to put together a top-notch Early Case Assessment:
This will be my last post of 2017. The year has certainly flown by! Thank you all once again for continuing to read the blog (going on four years now!), for sharing it with your friends and colleagues, and for your great notes and suggestions. I wanted to end the year with a discussion about an issue I think is of critical importance to any in-house Legal Department: getting rid of the perception of Legal as the place where deals go to die. Almost all in-house lawyers have heard this joke and almost all agree that it is generally an unfair label. That said, I have been doing this a long time and I have had many conversations with folks on the business side of the house and sometimes the concerns that they raise about Legal “blocking” deals are valid. Let’s face it, there are times when the Legal Department stumbles on this front. Sometimes we even fall on our faces. I have stumbled, fallen, and crashed to earth too many times to count. And, no matter how hard I try, I will stumble again. But, I always try to learn something from each lesson. Most importantly, I try to remind myself that I and the Legal Department are here to serve the business. As in-house lawyers, we have two goals: value creation (“Yes”) and limiting value destruction (“No”). The hard part is balancing these two goals, especially when it comes to things the business really wants to do or contracts they want to sign. A good friend of mine once told me that the hardest negotiation you will have as an in-house lawyer is usually internal. Over time, however, I have developed some guidelines that help me get to “Yes” far more than I get to “No.” This edition of “Ten Things” will share my list of things you can do to make Legal the Department of Yes.
When I first started writing this blog back in November 2014, I had no idea what I was doing. While some might say I still don’t (thanks, Mom!), I have gotten better at it. This blog now has over 2,400 followers – which still amazes me – and I sometimes pause for a moment to think why that is. I remember that one of the reasons I started writing “Ten Things” was because I was frustrated with many of the blogs and articles I have read as an in-house lawyer. While full of good intentions most of them just weren’t useful or were just poorly disguised marketing pieces. I would read them and when I finished I wasn’t sure what I was supposed to take away from the article in my everyday practice as an in-house lawyer. My goal has always been to try to write about topics that are interesting and to provide practical, useful advice. My guiding principle has always been to imagine myself sitting in a room with someone and trying to explain the issue and the next steps. Then I write that down. Yep, pretty much that simple. I’m not saying it’s easy, but I am not solving world hunger here either. I’m just writing a blog.
Occasionally, I get asked, “what makes a good blog?” Usually, this is a question asked by someone who wants to start writing their own blog. First, I highly encourage any of you to start your own blog if you have any interest in and passion for writing. Second, keep three things in mind:
- Write about what you know and what interests you. Don’t’ try to be a fake expert on anything. If you don’t enjoy it, it will seem like drudge work. And we all have enough of that already;
- Write simply. Yes, you went to law school and paid a lot of money to learn about big words and Latin phrases but – and sorry to break the news – no one wants to read a blog that reads like an AmLaw 50 firm brief to the 7th Circuit. Stick to short sentences, active voice, and a definite lack of legal jargon. Impress people with your ability to write clearly and succinctly vs. breaking the meter on pomposity;
- Always give the reader some practical and usable advice. When I am done reading a blog post I love it when the writer gives me a list of “here’s what you should do next” or “here’s some sample language.” Providing useful tidbits is what keeps readers coming back.
I don’t always succeed with my blog but I do use these three points as my writer’s compass whenever I start to write a post. All of which brings me to the point of this edition of “Ten Things.” For past couple of years, I have posted a blog listing ten legal blogs that I think are worth your time to check out. You can click here to see my 2015 and 2016 editions. I continue to highly recommend all of the blogs listed in these prior posts. But, I am always on the lookout for new ones and, fortunately, there are a lot of great writers out there who have legal blogs that are worth your time and – in my opinion – closely follow my three points for what makes a good blog. But, you can judge for yourself. Even if you only find one of the blogs below to be useful to you, then I have met my goal. So, in no particular order of importance, here are my top ten blog suggestions for 2017:
I was looking back on my past blogs recently and I realized that it has been a while since I discussed issues related to intellectual property (“IP”). This week, I’ll try to remedy that oversight. For just about any company, IP is an important part of its assets be it trademarks, trade secrets, copyrights, or this week’s topic, patents. Most of my in-house career has been spent with technology companies (or working with divisions of those companies focusing on technology). Everything I know about the topic I picked up along the way. I am not a computer science graduate, nor did I study IP issues during law school. And I handled a few minor IP-related issues at my first law firm. It really wasn’t until I became the General Counsel at Travelocity that I had my initial experiences with patents. First, as the victim of the initial wave of “patent troll” cases. Second, when by default I became the leader of our patent harvesting committee. It wasn’t much of a program to start with but I decided to dig in and learn as much I could about patents and why it was important that we, as a company, tried to develop them. It actually turned out to be a lot of fun, especially getting to interact with our software engineers and other super smart people who were developing the next wave of company technology. Our patent program got better and more refined over time and the USPTO issued a number of patents to Travelocity. I was never one of the inventors on any of our patents but I like to think the legal department played a critical role in developing those patents. In my new job, I realize that we have a similar opportunity to build our program and enhance how we develop patents. So, for this edition of “Ten Things,” I am reaching back to my past to lay out the key points in developing an in-house patent program. I am going to assume you don’t know a whole lot about patents and (to keep things simple) I will focus on the US patent system – but the principles below work in just about any country:
[“Ten Things” has been nominated for a “Best Blog” award. You can vote by clicking here.]
Most of my friends know that I really enjoy Halloween. While the free candy part is pretty good, I have always liked a good scare. And this time of the year is full of them. Horror movies are a great example. I especially like that the jolt of adrenalin, increasing heartbeat, and sweaty palms you get when you’re watching some knuckle-head fraternity boy decide that he must go down into the dark basement to see “what’s making those weird noises.” Hey, moron, we know what’s going on down there: It’s a monster that’s going to rip your head off and splatter the walls with what little brains you apparently have! Horror movies are fun because you know it’s not real and nothing bad has really happened. There are some scares I don’t like, however. Driving on Texas highways is one. Some of the others are things I have seen at work. I have been an in-house lawyer for a long time. That means I have seen a lot of things. Some good. Some bad. Some downright scary. As I start to think ahead to 2018 and my “to do” list, I have been thinking back on these scary things. I want to be proactive in 2018 and make sure the Legal Department is taking steps to keep bad things from happening or planning what to do if they do happen. Being proactive (and not reactive) is when in-house lawyers add the most value to the company. In honor of Halloween, this edition of “Ten Things” identifies ten things that should scare the bejesus out of in-house lawyers:
[Ten Things has been nominated for a “Best Blog” award. You can vote by clicking here.]
Fall is my favorite time of the year. The weather’s cooler, the trees change color, and football (American style) permeates the airwaves. If you’re big into Halloween (and I am) you get to decorate the yard with zombies and gravestones and then hand out free candy to the neighborhood kids – and snag a few Twix bars for yourself. However, there’s more going on in the Fall than wearing a Nebraska Cornhuskers sweatshirt, admiring the foliage, and handing out candy. If you are in-house counsel, you know this time of year means one particularly thankless task: preparing an annual Legal Department budget. Adding to the fun is that you must figure out in October what you’ll be spending in August of the next year. But no one in the business is crying any tears for Legal. They are all going through the same process. And as we all know, Finance is telling you to be prepared to cut spending (or at best be flat year-over-year). Somehow, someway, you’re going to have to find a way to come up with a spending plan that tries to account for the knowns and unknowns associated with providing legal services to the company.
I recently got back in the in-house game and took on the General Counsel role for Marketo. Which means after two+ years of not having to worry about legal budgets, here I am with my dry-erase markers and my big white board of numbers planning for 2018 legal spend. And as I sit staring at this mess of numbers, I figure that there might be in-house lawyers out there who have never prepared an annual budget, are going through it for the first time, or are just interested in learning how others do it. While there is a lot written about budgeting for specific legal matters, I found very little written about preparing an annual budget. So, this edition of “Ten Things” will walk you through the process I am going through right now as I prepare our annual Legal Department budget:
This past week I was honored to be the keynote speaker at the 2017 ACC Alberta Annual Conference in Calgary. First, let me say that Calgary is a wonderful city and a great place to visit (and the people are awesome too). Second, a big “thank you” to ACC Alberta for inviting me and hosting a tremendous event. One of the topics I spoke on was what to do when you are faced with a data breach. It was a very interactive session with lots of great questions and feedback from the lawyers in the audience. In particular, we spent some time discussing the recent Equifax data breach and the very negative fallout that company is experiencing – mostly because it seems Equifax was very unprepared to deal with a breach. This is very surprising given the nature and the amount of sensitive data in its possession. We also talked a lot about things in-house counsel should be doing before there is a breach. Some of those things were in my presentation, others were brought forward by members of the audience. And as I stood on stage listening to the discussion I knew I had my next blog forming right before my eyes. As important as it is to know what to do if you have a breach, there are a number of things that all in-house lawyers should focus on before there is a breach and by doing so, you can substantially limit the potential damage caused by a breach. So, with big thanks to my friends from Canada, this edition of “Ten Things” will discuss ten things to do to get your house in order before you are faced with a data breach:
I have been an in-house lawyer for almost 25 years, with a large chunk of that time spent as the general counsel. During my time, I have seen my peers and people who worked for me do some really great things and some really foolish things. I certainly did my share of both. As a manager and as general counsel, I often had lawyers ask me, “What are the things I need to do to get ahead here in the legal department?” This is an excellent question and one every manager hopes/expects to hear from their employees, especially those who show the skills and drive necessary to move up the chain. A good manager or more experienced colleague, however, also consider the flip side of that same question and is ready to proactively, or in response to a specific question, counsel in-house lawyers on the things they need to avoid doing to succeed in the in-house world. To cut to the chase, being an in-house lawyer is much harder today than it was 10 years ago, and the wrong move can be your first-class ticket to Unemploymentville. I know that over the long term, I was able to claim the general counsel chair because, among other things, I asked a lot of questions about what I should be doing, but I also listened hard when people told me what not to do or, if I did mess up, I learned the lesson then and there and did not repeat the mistake. That can be easier said than done, especially when the day is jammed with work that needs to get done vs. spending time thinking about what you did – or might do – wrong. I thought this edition of Ten Things should share my list of 10 things that can kill your in-house career:
I was a panelist at the 16th Annual Advanced In-House Counsel Course in San Antonio, Texas on August 18, 2017. I was joined once again by Jason Smith of Apttus and Jane McBride of Optimus Legal to discuss ways lawyers can work smarter and not harder – a worthy goal if ever there was one! Of course, one of the main ways to accomplish this is through the use of technology which we all touched on at some point during the discussion. If you follow this blog regularly, you know that I have recently written on the impact of artificial intelligence on in-house legal departments as well as ways to slay the “Email Jabberwocky.” Both highlight ways technology (and common sense) can help you do more in the same or less time. You also know that I enjoy writing about the use of technology generally by in-house lawyers. And now that I have gotten back in the General Counsel game after two years of private practice, I am focusing even more intently on ways technology can make my and my team’s lives easier. What all of this means is that it is time for my annual “Cool Tech” blog post. You can read my past posts for Cool Tech 2015 and Cool Tech 2016 (and I still recommend all of the technology mentioned there), but this edition of “Ten Things” will discuss an all-new list of cool tech for in-house lawyers. As always, I do not receive any compensation or anything to endorse these products, it’s just my opinion about technology I think in-house lawyers might find useful:
[Note: this is a summary version of a four-part series I wrote for Thomson Reuters earlier this year with some key updates and new sections. You can find the full series by clicking here]
Some of the best scenes in the television show Star Trek (the original version) involve the crew members asking the computer a question and the computer spitting out the answer in the form of a conversation. I was utterly amazed by this and, of course, wanted my own computer that would “answer” my questions. Alas, I was ahead of my time. But, I was recently reading an article comparing the Google Home with the Amazon Echo, two devices that allow you to ask questions and get an answer. From a computer. Just like Star Trek! This brought back two important memories from the TV show: 1) intelligent computers that can talk and answer questions; and 2) never be the crewman in the red shirt. I always lived by the latter and now, it dawned on me, I could start to live by the former too.