Howdy, everyone! Greetings again from Texas. It’s been a while since I last did an index to all of the posts in the “Ten Things” blog. Since the last one (July 2020), we’ve added over 1,300 new subscribers and we are now over 5,400! And we are well into year eight of the blog. All of which 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. That said, I know it can be a pain in the ass to wade through all of the blogs and try to find what you’re looking for. So, for all of you new kids and for you crusty veterans, this index post is long overdue. I may get around to putting an index on the site, but if you saw my desk, you’d realize just how much of a pipe dream that is. I do have a new blog ready to go, but have decided to publish it next month and we’ll put the “act” back into “practical” (man, that sounded way better in my head).
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 building your executive presence in-house. It was fun for me to look back through these. I found a few surprises that made me go “when did I write that?” and “why do I have so much free time?” The first ones are a little rough, but I got better – I think. You be the judge:
Hello everyone and hello 2022! If you are a long-time reader of the blog, you know that I like to start off January with a list of issues I believe in-house lawyers should pay attention to over the coming year. This is something I did every year as general counsel at several different companies. Basically, I kept tabs on developments, trends, issues (or whatever) that I thought would have the most impact on the legal department over the next 12 months or so. I did this by speaking with in-house lawyers and outside counsel, reading newspapers, blogs, reports, attending conferences, sitting in on meetings within the business, asking business leaders at the company, asking my team what they were seeing, and just generally paying attention to what was going on around me. Once I spotted a potential issue, I looked at it and asked one simple question: How might this affect the company and the legal department? Answering this question meant I had to understand the company’s goals and strategy so I could spot and manage risks (and hone my ability to be a more strategic partner to the business). Of course, it helps to be naturally curious about what is going on around you and be thirsty for information. Information is gold to in-house lawyers (see my post Ten Things In-House Lawyers Should Read Every Day). From there, I made a list of issues and worked them into the goals and activities of the legal department.
In my new book, Showing the Value of the Legal Department, I set out a checklist to help in-house lawyers quickly analyze potential risks (risks being potentially both negative and positive, e.g., taking risks can lead to positive results). Here is a version of that checklist, and it’s a helpful filter when you look at things coming across your desk day in and day out:
- Is this a risk that can create or destroy value?
- Could this be a game-changer and how so?
- Is this something a regulator might care about/criminal?
- Could this make customers or vendors happy or upset/litigation?
- If it becomes public or goes “badly,” will it damage our reputation?
- Is this covered by a specific law or regulations/does it comply? What’s the downside?
- What will our competitors do? How should we respond?
- Have others had problems or success with this before/lessons already learned?
- Could this hurt someone (e.g., physical, safety, environmental mishap, reputation)?
- Is this an opportunity for the company and, if so, who needs to know?
It’s not perfect, but it works. You are welcome to use it, create something similar, or laugh at it. Your call. All I know is that it helped me quickly sort through what mattered and what did not. I still use it. But enough background. Time to get on with the show and another year of Ten Things You Need to Know as In-House Counsel (pause for very mild applause…). Here is my list of critical issues in-house lawyers should pay attention to and plan against for 2022:
Back in January, I gave my list of essential issues for in-house counsel to pay attention to in 2021. One of the items I listed was “phishing.” Unfortunately, I was right to highlight it. Phishing has been a hot topic in 2021. More alarming, however, is that phishing’s good buddy ransomware has become an even bigger issue for in-house lawyers. In the first half of 2021, ransomware attacks are up over 148% (with more attacks than the last ten years combined!). The average ransom is now $200,000-$300,000 (with demands now exceeding $10,000,000.00) and businesses are down an average of 21 days whether they pay the ransom or not! I don’t know about you, but being down for three weeks and getting stuck with a $300,000 bill to access my data would be a real problem for most companies. To make matters worse, bad actors are getting more and more sophisticated, looking for new ways to gain access to corporate information systems. The good news is that there are things you can do now as in-house counsel to help your company prepare for and limit, or even prevent, a ransomware attack. Proactive in-house counsel is valuable in-house counsel, so taking steps now is an excellent way to demonstrate the value of the legal department. This edition of “Ten Things” walks you through some of the steps you can take to mitigate the damage of a ransomware attack:
English philosopher Thomas Hobbes famously wrote in his poem Leviathan that, “Life is solitary, poor, nasty, brutish, and short.” That is a startling clear sentiment, both powerful and scary… Um, sorry. This has absolutely nothing to do with today’s “Ten Things” post. Just got off on a tangent here. Let me start over…
I have always been able to get a lot of things done in a day. I never really thought much about it. I just assumed everyone was the same. Over time I realized that was not the case. Everyone has a different ability or capacity to get things done in a day or a week or a month. I just happened to be really good at it. I was never really sure why. I certainly wasn’t the smartest person in the room – though I know now that being smart has little to do with it. It isn’t because my concentration abilities surpass those of mere mortals. I get as distracted by things as the next person. Nope, I could never put my finger on it. Then a few years back I came upon an interview with time-management author Laura Vanderkam. She led off with this statement, “Small things done consistently add up to big things.” It was literally as though someone had turned on the lights in the room. I had not been bitten by a radioactive spider. I had no secret superpower. I had simply stumbled upon the productive power of “little things!” This edition of “Ten Things” discusses what this is and how in-house counsel can harness it to get things done:
[I realized too late after my last post that I have surpassed 100 blogs. Wow. No celebration but, to be honest, I never imagined I’d write that many when I started “Ten Things” back in November 2014. But, here we are, all dressed up and lots of places still to go. So, thanks for reading and keep those emails and suggestions coming!]
As an in-house lawyer, I was always interested in any legitimate way I could keep information generated by the company or the legal department confidential. Or, more importantly, out of the hands of our adversaries. All of which meant I needed to stay on top of many things, from trade secret protection to teaching the business to write smart. But, as a lawyer, I had a particular interest in how privilege might apply to the materials I – or my team – was working on. The most obvious was the attorney-client privilege, something I have written about in a past blog and which ranks first on my list in terms of protecting information. Somewhat less obvious, and not as sexy as its cool, buff older brother, is the work product privilege. While more limited in the circumstances in which it applies, it is pretty powerful and can save the day when something happens to make the attorney-client privilege fall away. Kind of how Batman can curb-stomp some villains when Superman’s having an off day. I think it’s time we gave the work product privilege some love and this edition of “Ten Things” discusses what in-house lawyers need to know about our new, best buddy:
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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:
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:
You’re sitting at your desk, slurping down a big mug of coffee, when the CEO stops by your door. “Guess what,” she says. “We’re going to do a joint venture with Mega Corp! I need you and your team to get right on it.” You say, “You’re [messing] with me, right? Joint ventures are where good business ideas go to die.” Well, you don’t say it, but you sure are thinking it because you know that most joint ventures never perform as expected, many severely underperform, and most terminate early because the parties cannot agree on some issue. Regardless, joint ventures are not going away – CEO’s just seem to love them. And when the business wants to move forward with a perfectly legal idea, in-house counsel fall in line and do their utmost to make the deal happen (and draft documents that help minimize problems down the road). While it is impossible to consider every possible problem that might arise over the course of the joint venture, you can set up a process that will allow the parties to minimize potential issues. How? By spending a lot of time upfront thinking about the key considerations of putting the venture together. This edition of “Ten Things” walks you through the basics of setting up a joint venture:
Managing a legal project is not an easy task. Not for in-house counsel or for outside counsel. There are simply too many ways for a project to “come off the rails” and turn into a disaster. Usually, the disaster has to do with cost/budget. While blowing the budget is definitely not good, a worse scenario is when the disaster results in the project failing, be it a contract, and merger or acquisition, or a piece of litigation where the stakes are high. A project “fail” can mean big problems for in-house lawyers, all the way up to being shown the door. This is why it’s so important for in-house counsel and outside counsel to be on the same page any time there is a project of material size or risk. The key for in-house counsel is understanding that you cannot simply turn the project over to outside counsel and “hope for the best.” Successful legal projects require the involvement and input of in-house lawyers every step of the way.
Over the past decade or so, “Legal Project Management” has grown into an accepted (and in-demand) way to manage legal work sent to outside counsel. However, it can be a rather involved process and while I am a big believer that it does pay off not all in-house lawyers are ready to step up to the level of commitment required to really do “LPM” right. That’s okay. I think any in-house lawyer can apply the basic concepts of LPM and even a cursory application of the basics will lead to better project management and better results. This edition of “Ten Things” discusses the basics of Legal Project Management and how you can utilize them as a “beginner” to the process:
One of the most valuable skills an in-house lawyer brings to a company is the ability to negotiate. In-house lawyers negotiate contracts, M&A transactions, litigation resolution, government/regulator inquiries, internal squabbles, and a host of other issues. While negotiation is an important skill, it is rarely – or poorly – taught in law school (certainly here in the USA). Meaning, unless you were fortunate enough to learn negotiation skills while employed at a law firm (and I’d wager that it is hit and miss whether your law firm truly spend time teaching negotiation skills), your ability to negotiate is largely self-taught. Some of us get by on instinct and natural ability, some of us flounder a good bit, sometimes doing a great job, sometimes not.
I am a self-taught negotiator, picking up bits and pieces of good and bad advice along the way. I have negotiated a large number of contracts and settlements in many different countries and I supervised those that did as well (learning as much from that process as being in the room). One thing I learned for sure was that regardless of where you fall on the continuum of negotiation skills, there is always room for improvement. As usual, there are some core things you need to know and understand in order to develop or improve your skills in this area. This edition of “Ten Things” will discuss how to negotiate: