Thursday, May 23, 2013

Theory vs. Practice

As law schools all over the country are matriculating a crop of new would be lawyers, I'm struck by the difference between the legal theory we're taught in law school and the realities of legal practice.

An illustration: an artist acquaintance was venting about a deal gone bad.  She had signed a contract for a performance in Europe.  Only after arriving and the day before the show, the promoter informed her that he couldn't afford the original contract price and would only be paying her half.  She had spent almost that much just getting there, so needless to say she was less than pleased.  At this point in the conversation it turned to the all too familiar refrain, "Tanya, you're a lawyer - can't I sue the little bastard?"

And the little law school prick buried in my head (we all have one, go ahead and admit it) started picking out all of the legal theories on which a case could be made.  Like a law school exam question I pulled out all the issues I could spot - clearly there's a breach of contract, maybe some detrimental reliance.  Did performing after the price cutting conversation constitute an amendment to the contract?  Nah, but even if it did she clearly only agreed under duress as she need to recover the cost of getting to Europe.

And then, my better judgement woke up and I stopped myself from going too far.  What did it matter?  Yes, of course she could sue.  But why would she?  The legal fees alone to litigate the matter would eat up any recovery she might be awarded - if the 'little bastard' actually had anything to pay her with.  Even if she went the small court route without an attorney, she was going to waste her time and was unlikely to get anything out of him.  He'd already proven that a written contract didn't mean anything to him, would a judgment mean more?  Did she want to go through the hassle and expense of trying to have a judgment enforced for a couple of grand?  A better solution would be to invoice him for the unpaid contractual amount and after he didn't pay, turn it over to a collections agency on a contingent basis.  Not as emotionally satisfying but realistically it's a much more practical answer, and just as likely to lead to her actually recovering anything of value.

And that, my friends, is what makes lawyers so valuable.  Our American legal systems allows a person to sue for a lot of reasons.  Some of them are even just.  But the real value lies in knowing when to ignore the theory and do the practical - and in the ability to convince your client that just because you can doesn't mean you should.

Monday, May 6, 2013

So You're the First?

Being the first attorney for a company isn't easy.  It isn't easy finding those jobs, and it isn't easy figuring out what to do once you get there.  If you are currently working in houses at a job that you like, you should send a thank you note to the first attorney who ever worked for the company.  Like them or hate them, they fought some battles that you never would even think about so that you can have the position you now have.

I've recently had a few conversations with some colleagues who have shared this experience and we compared battle scars.  The consensus seems to be that the biggest challenge to being the first is the fact that most businesses don't hire in house counsel until about a year after they really needed one.  So that means you spend a lot of time putting out fires while trying to carve your niche and make the role "your own".  We all wished we had some clue as to what the real priorities should have been, so I'm giving you one.  Take this with a grain of salt - this is based on my experience being the first in house lawyer at two firms.  It's a limited sample size and may be shaped by the personalities involved. This also doesn't discuss figuring out whether the organization is looking for counsel because they're growing, or because they're dying - that's a separate post altogether.

For those of you considering taking that first lawyer job, think hard - it's a lot of work that will definitely go unrecognized, but it's also one of the most rewarding things you'll ever do professionally.  Once you do decide, here's a few things you should do immediately.

1.  Clearly define the role.  Most CEOs start wanting to bring legal work in house because they're paying too much to outside counsel or they're getting too involved in the routine contracts and need to off load it on someone.  When they seek out a lawyer, they're really only concentrating on the one pain point.  If you don't clearly define the role prior to starting, you may find yourself relegated to contracts manager instead of legal counsel.  Make sure that you and your CEO are on the same page as to whether you are to be a strategic part of the management team or an operational member.

2.  Clearly define expectations.  Even if you've agreed on being strategic or operational, you should also define the expectations of what you are capable of doing or not.  Most business folk have dealt with attorney's in a limited role on one or two major issues.  The rest of their expectations about what lawyers do is filled in by tv and stereotypes.  You'll need to set the expectation that hiring you won't completely eliminate outside counsel spend.  You'll need your new boss to understand that you can't force competitors to stop being unethical so long as they're doing it legally.  You'll also need your new boss to understand the consequences of the strategic vs operational role.  If you're not involved in strategy then it's unfair for the big boss to expect you to tailor agreements or risk to accommodate for the 5 year plan that you never knew about. Make sure you're both on the same page as to what will be expected of you so that after the first year you aren't questioning your decision to take this role and your boss isn't questioning whether all lawyers are incompetent.

3.  Meet the power players.  Definitely introduce yourself to the company's management team.  You should have one on one meetings with everyone on the leadership team within the first 30 days.  Take them out to lunch and ask them how you can help their team.  But also do some snooping and find out who the real power players are.  Does the CEO's admin control his schedule with an iron fist?  Yes, then become his friend.  Is there a controller who seems to have more sway with the CFO than others?  Take her to lunch.  Is there a sales person who somehow seems to know all of the internal politics?  Do his contracts first.  It goes without saying, in corporate America internal politics matter.  Competent people are sidelined and incompetent people get ahead based on playing the office politics game better.  It sucks, but you have to play the game or at least be aware of who is.

4.  Set yourself up for an early win.  Whether it's an easy litigation matter, a major contract that's been stalled, or a new process that reduces review times dramatically.  Come up with something that proves your value quickly and to the widest audience possible.  You're expensive.  They've never had an attorney before and there are bound to be some members of the team that are skeptical about how much value you actually add.  Show them early and turn your detractors into cheerleaders.

5.  Get used to be on your own.  As the first lawyer you're going to be doing a lot of non-lawyer things.  Filing your own stuff, drafting your own letters and addressing the envelopes, creating your own binders, etc.  Things you may be used to having support staff doing.  But you don't have support staff now.  And the quickest way to make an enemy is to ask the CEO's admin to run out and grab lunch/coffee for you during your first week.  You're own your own now, get used to it.

6.  Don't be too helpful.  This may be more for the female lawyers out there.  We tend to be service oriented people.  We want people to be happy, so we'll make sure that they have water at a meeting or that there are enough chairs in the conference room.  We'll go to their office or rearrange our schedule 3 times to accommodate their schedule.  It seems like we're being helpful, team members and checking our egos at the door.  But what we're really doing is setting ourselves us as secondary.  It gives the impression that we're support staff to the leadership team instead of a part of the leadership team.  Don't be rude or go out of your way to flex your ego, but don't completely lock it away either.  Push a little for meetings to happen on your schedule.  Schedule them in your office.  Make sure that it's clear that your priorities are as important to the company as the priorities of the head of HR.  There's definitely some give and take here, and it's hard to walk the line between being in a service oriented role and being support staff.  But if you allow yourself to be viewed as the latter, you'll never be taken completely seriously in the former.

So there are my top 6 things to do as soon as you start your new gig as a company's first.  Anyone else have battle lessons to share?