I have been struggling to write this post about KPIs. It’s taken way longer than it should have – with several starts and stops. First, should it be KPI or KPIs? Just like the debate over RBI and RBIs in baseball, passions run hot on this point. I think “KPIs” sounds better so I’m going with that. Second – and slightly more important than the KPI/KPIs controversy – KPIs don’t work particularly well for in-house legal departments. Actually, I had this eureka moment a long time ago when I was first asked as General Counsel to provide “SMART” objectives for the legal department for an upcoming calendar year. I literally had no clue what they (HR) were talking about. And when I asked them for some examples, it was clear they had no clue either – at least when it came to developing SMART objectives for the legal department. For other parts of the business, SMART objectives seemed obvious and worked great. For legal, not so much. But, I (and my team) eventually figured it out and designed goals that were a little squishy – “SMART-ish” – but to which no one objected. You can see some examples of this in an older post titled “Setting Goals for the Legal 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:
I realized the other day that it has been a while since I posted an index to all of the blog posts – November 2016 to be exact. Since the last time I did this the blog has grown to well over 2,000 direct subscribers and the American Bar Association has published my book (based on the blog) entitled “Ten Things You Need to Know as In-House Counsel: Practical Advice and Successful Strategies.” Speaking of which, last week I received the highest compliment I could imagine about the book: my Dad read it and said it was “pretty good!” All heady stuff for a guy who started out just wanting to jot down some of the things he learned over the course of a 20+ year career as an in-house lawyer.
I know there are a lot of great blogs and websites out there for you to read (and I’ll be writing about those later this year). So, I am very appreciative of the fact that you make time to read my posts. Based on the comments, the emails, and from talking with many of you directly, I hope I can continue to write about things that interest you and do so in a way that is practical and useful. If not, then I have missed my mark. I know I have missed my mark with being able to prepare a proper index on the actual blog site. I am still a bit wary about messing with the technical aspects of WordPress because I think I’ll delete everything. I know that’s not really likely, but that’s my biggest fear. Anyway, I promise I’ll keep working on it but in the meanwhile, by popular demand(?), here is an index of all of the posts from the beginning back in November 2014 through today:
It has been about 18 months since I published the first “Ten Things You Need to Know as In-House Counsel” blog post. I have to admit that I continue to be surprised by the popularity of the blog. I have tried hard to consistently write about things that matter to in-house counsel and do so in a way that is practical, informative, and actionable – drawing on my own experience of 20+ years as an in-house lawyer. That fact that you guys find it interesting just blows my mind sometimes. The blog has almost 900 direct followers (and I hope to get that number to over 1,000 sometime this year). There are also thousands of in-direct followers who get the blog via an email blast or through one of the number of legal publications that re-publish many of the posts. What I really appreciate, however, is the many, many emails and Linked-In notes I get from readers all over the world: from Canada, UK, India, Singapore, the Middle East, Central and South America, Asia, Turkey, and of course, the USA. I enjoy hearing from all of you (good or bad), especially if you find the blog helpful or, even better, if you have ideas for future posts. Always feel free to contact me if you have feedback, questions, or ideas.
As you have probably guessed by now, I love to write. You can follow me daily on Twitter at @10ThingsLegal where I post things of interest to in-house counsel daily. I also post more substantive (but short) articles on Linked-In just about every day as well. Check out the posts on my Linked-In publication wall (and feel free to connect with me as well). I write a monthly column for Thomson Reuter’s “Corporate Counsel Connect” e-zine called “The Insider.” And my first book, “The Evolution of Professional Football” (American football that is), is available at www.SterlingMillerBooks.com and on Amazon. Which brings me to some more exciting news – “Ten Things You Need to Know as In-House Counsel” is in the first stages of becoming its own book. Stay tuned for more information about when it will be available to buy (hard copy and e-book). I will also be looking for some people to write short blurbs/forward material to include in the book, so let me know if you’re interested in doing that.
As I noted in my first few posts, I am not the most tech-savvy blogger. But, I have learned a lot over the past 18 months and I am getting better at things. One thing I have not figured out yet is how to create a really useful index of all of the posts. You can search month-by-month on the site, but I am still trying to figure out how to build-out an index by category or by title. Bear with me on that. It will happen! And if you have any ideas, feel free to share them. Until then, it’s a good point in time for a comprehensive index of “Ten Things” posts (all 39 of them), hyper-linked and in chronological order from past to most current:
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).
As in-house counsel, you already know that poorly drafted documents, especially emails, can hurt your company, e.g., M&A deals can get derailed or litigation extended. You can find examples every day of “bad” emails being read in court. Labels like “confidential,” “company private,” “restricted,” and “proprietary” will not protect documents from being obtained through proper legal process.
Document requests in litigation or government investigations are broad, typically calling for correspondence, hand-written notes, agreements, drafts, email (email back-up tapes), sent files, deleted emails, calendars, spreadsheets, documents on tablets and smartphones, graphs, expense reports, voice mail, meeting agenda, calendar entries, copies of media articles, etc. Consequently, it’s important that your business colleagues understand the importance of properly prepared documents and emails (and the potential harm from not doing so).
Below are ten things you can use in your daily dealings and conversations with the business to help limit problems that can arise from poorly prepared documents. I have included some links to other resources as well. A lot is focused on emails, but the rules apply to pretty much any written communication (including instant messages and recorded voicemails). Feel free to cut and paste these into your own check-list or email (or however you best can get the word out at your company).
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.