Welcome back, everyone! I hope your holidays were joyful and restful (and COVID-free). I was able to make a bit of a dent in the next book, so the ABA goons are leaving me alone… for now. I did have some time to squeeze in the first “Ten Things” blog of 2021. As usual, and like I did when I was general counsel, I like to start the year by sitting back and just thinking about all the crazy shit going on out there in the world and how it might impact my company and the legal team. When I was in-house, I would use this exercise to help me plan out the year, set goals, and – most importantly – set some tripwires for starting to measure and balance risks to the organization. So, I have been reading a lot, talking with in-house lawyers, and generally trying to figure out what’s hot and what’s not. No surprise but it looks like a lot of last year’s list is still pretty relevant (click here to read the 2020 list). But, there are definitely some new players on the field. And, the idea here isn’t to figure out every possible thing that can cause problems or provide opportunity – that’s impossible (See COVID-19 for more details). Rather, it is about doing your best to find a lens to help you anticipate the problems you can anticipate so that the issues that inevitably come out of nowhere are easier to deal with or do not hurt as much. In other words, looking ahead to maximize value creation and minimize value destruction. Also, you should know that my New Year’s resolution for 2021 is to be a bit more pithy with the blog. We’ll see how long that lasts (maybe not even to the end of this one). Anyway, let’s start the car and hit the road! This edition of “Ten Things” takes a look at my predictions of the essential issues for in-house lawyers in 2021:
I remember back in law school making fun of our fellow students who had business degrees. We called it the “study of the obvious” and mocked them relentlessly. Of course, I had to run away and hide when they pushed back and asked what my major was – it’s hard to stand tall and claim “political science” as a worthier endeavor. Still, as always, it’s better to be the mocker than the mock-ee! Once I went in-house, however, I began to have a much greater and sincere appreciation for all those business majors. They were paying the bills! They also had a very analytical and numbers-oriented way of looking at things. Something that fit nicely with my approach as a lawyer. Regardless, the first time I heard someone in the business say, “we need to do a SWOT analysis on that,” I thought they were talking about S.W.A.T., a kick-ass police drama from the mid-1970s. Why we needed to do a special weapons and tactics review of a new product launch escaped me, but I was excited to see how they would pull it off. Sadly, no hippies or domestic terrorists needed a beating that warm and muggy afternoon in Texas. Instead, someone started creating a “SWOT” two-by-two box on the whiteboard. Damn (queue-up glorious choir music). I quickly saw the beauty in what they were doing. It was (and is) an elegantly simple way to look at a problem and think through the Strengths, Weaknesses, Opportunities, and Threats – SWOT. I knew immediately that I had to steal this SWOT box thing for the legal department as it could easily apply to many things we were doing there. While some of you likely have experience with SWOT analysis, I am betting that a lot of you have not. It’s a great tool that I used frequently as general counsel, mostly as a way to strategically look at the legal department as a whole and how best to plan to add value to the business. This edition of “Ten Things” takes you through how to use a SWOT analysis to analyze the 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:
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:
One of the most frequent questions I get from in-house lawyers is how to deal with difficult bosses. I have been very fortunate because – while practicing law for almost 30 years – I can count on a couple of fingers the times I was stuck with a boss who was a real asshole. After talking with a lot of other lawyers (at firms and in-house) I realize how lucky I have been in my career. While rare, I definitely remember how miserable I was the few times I did draw the short straw. Practicing law is tough enough without having to dread coming into the office because of a boss that just makes your life miserable. Still, I survived and got through it. But it wasn’t always easy and some days it really took a toll. I think my revenge was getting to the General Counsel chair a few times and swearing a blood oath to myself that I would never, ever be a jerk boss – something I remind myself of every day. Unfortunately, the problem of crummy bosses in legal departments will never go away. They are out there and they always will be. So, if you want to be a successful in-house lawyer you’re going to need to learn how to deal with them whether they are legal department lawyers or executives in the company (lawyers have no monopoly on being buttheads). This edition of “Ten Things” will set out some of my tips on how to deal with troublesome bosses:
One goal set out in my sample legal department goals for 2015 was to increase efficiency (and reduce costs) in the legal department. One of the easiest ways to do this is through the use of technology. This can mean anything from apps for your smartphone to sophisticated software programs running on servers at your company. For some, using technology can be daunting and frustrating. For others, it is as easy as falling off of a log. But, to be a successful in-house lawyer or general counsel you need to embrace technology and make sure your team does as well. So, if you are afraid of technology, you need to get past that.
One issue with using technology is that the choices are almost endless and it can be difficult to distill things down into a useful list. This edition of “Ten Things” takes on the task of listing some key technology that can help you increase your own efficiency as well as the efficiency of your team or the department overall. I am going to assume you know how to use Microsoft Office products (free and pay) and Google products (free), so those tools — certainly very useful — are not included. That said, if someone asked me to list my ten key technology tools for an in-house lawyer, here they are:
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 to 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.
A common complaint you will hear as in-house counsel is “Why does it take so long for you guys to review my contract?” (Second only to “Why are our contracts so long?”) The answer, as you know, is complicated. Legal is a limited resource, typically a small team that reviews hundreds and possibly thousands of contracts in any given year. While a lot of contracts are fairly routine, many involve complicated provisions or transactions with millions of dollars on the line. Sometimes you have to create a contract from scratch, meaning you do not have a form or something to easily model from. Frequently, things like litigation or large M&A deals take up substantial amounts of lawyer time — time that cannot be spent on contracts. Finally, legal will generally prioritize contracts based on the strategic objectives of the business. Deals that better support the strategy/objectives get more attention more quickly.
It’s hard to recall a more disconcerting feeling than getting a copy of a lawsuit filed against your company. If you have no experience with litigation, this can be a panic-inducing moment. And no matter how experienced you are handling litigation, your stomach will start to flutter as you read through the allegations.
I was a litigator in private practice and I definitely saw my share of litigation, big and small as in-house counsel. Over the course of that time, I developed a standard list of “things to do” when a lawsuit came across my desk. I did this because it’s easy to forget some basic things you need to do up-front to put yourself in the best position to defend the claim. Below are ten things to do when your company gets sued (I have added links to additional resources in key spots).