When I was a kid there was a Saturday morning cartoon show called Sealab 2020. I remember thinking that was a long, long way off and wondering how old I would be when 2020 rolled around – – and whether by then there would really be a giant lab on the bottom of the sea with 250 oceanauts fighting sea monsters and battling pollution. But, here we are; it’s 2020! I am officially old(ish) and, sadly, sea monsters go un-battled under the ocean (unless you count Wicked Tuna), but pollution on (and in) the high seas runs rampant. Triple bummer. What does this have to do with “Ten Things” you ask? Nothing other than a little nostalgia and the “2020” reference as this is my first post of the New Year. As usual, we’ll start the year with my list of essential issues for in-house lawyers to pay attention to over the coming months. When I was general counsel, I started every year thinking about the “big picture” and what risks (good or bad) might be coming down the pike that I needed to be aware of as an in-house lawyer. It’s not an easy task as there is so much “out there” that can have an impact on your company and legal department. Still, it’s better to try to anticipate some than to ignore all. So, once again, I have sat down, read a lot, and thought hard about different issues that will likely have some substantial impact – positive or negative – on in-house lawyers and for which a little bit of preparation or pro-active attention can make you a hero vs. someone caught flat-footed. With the usual caveat that I have no crystal ball showing me what’s important, here my “Ten Things” 2020 edition of essential issues for in-house counsel:
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:
Almost all in-house lawyers have dealt with mediation at some point. If you haven’t to date, you will. Mediation is a process to resolve disputes between parties where a neutral third party helps facilitate the discussions, negotiation, and (hopefully) ultimate settlement of the dispute. Unlike arbitration, mediation is generally voluntary and non-binding. Meaning, in addition to picking their mediator, the parties get to decide whether and how they will resolve their dispute. There are times when mediation is mandated, i.e., the parties must go through the process such as, for example, when their contract requires it as part of a dispute escalation process. Likewise, there are times when a court will require mediation with the judge (or magistrate judge) acting as mediator (sometimes called a “settlement conference”). Mediation is often your best opportunity to settle a dispute before undergoing the expensive process of all-out litigation and trial. Unfortunately, many in-house lawyers — or their clients – treat mediation like a poor cousin to arbitration and waste the opportunity. This is usually because of either indifference or the idea that you can “just show up” and mediate. Wrong! There are many things you need to know about mediation in order to have the best chance at a successful outcome. This edition of “Ten Things” discusses the key points in-house counsel need to know about mediation.
As most of you know by now, I retired from Sabre Corporation in November 2014 as General Counsel, Corporate Secretary, and Chief Compliance Officer. Shortly after that, I began the “Ten Things You Need to Know as In-House Counsel” blog, even though I had never blogged before or thought anyone would be that interested in what I had say. My goal at the time was to write down a lot of the hard (and easy) lessons I learned over 20+ years as an in-house lawyer and share them with you. Today, that’s still the goal and, as of November 28, I am celebrating one year of posts – 28 in all! My plan is to keep going until someone tells me to stop (most likely that little voice in the back of your head that says “enough is enough”). We’re not there yet, so lots more planned for Year Two!
As always, thank you for reading the blog and for sending me your comments and ideas for future posts. I do read them all and I have used a number of them already (and will continue to, so keep sending them). Thanks to all of you who have taken the time to click on “follow”, regularly read the email updates I send out, and forward the blog to your friends and colleagues. I also want to thank the good folks at Westlaw, LexisNexis, and Texas Lawbook for republishing a number of the posts in their publications for in-house counsel.
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).