Monday, July 30, 2012

Out of Office (figuratively, of course)

Since creating this blog, I've tried to consistently post something new twice a week.  I usually come up with the ideas over the weekend so I have a fresh post ready for Monday morning.  I spent this past weekend divided between helping to build a shed in the back yard (yes, I can now add construction to me resume) and being glued to the t.v. watching the Olympics.  The result is that I'm sunburned, tired from lack of sleep and haven't even thought about the blog until this morning.

The reality is, that instead of coming up with brilliant, insightful tips on in house practice, tonight I'm going to go home and watch Men's Gymnastics.  So this is my figurative out of office message.  I'll be back next week with more babble about practicing law in house. In the meantime, if you have a topic you'd like to discuss, please feel free to leave it in the comments or email it to me.

Thursday, July 26, 2012

Lawyer Olympics

Everywhere I turn I’m hearing about the London Olympics, and it’s getting me very excited. Of course I don’t have to face the tourists or the traffic, and it’s all going to be streamed live on the internet so by next week I’ll be fully immersed in the glory with none of the headaches.  I love the Olympics and have nothing but admiration and respect for the athletes who sacrifice so much to be there.  It must be an amazing experience for them, one I’m instantly proud and jealous of.   Anyone who knows me knows that I have zero athletic ability; I’ve actually sent myself to urgent care by tripping over my own two feet.  So I know that the closest I’d ever come to being in the Olympics is if I could convince someone to make me their official water girl – although I’m probably not qualified for that either.  So it got me thinking, what if they had “Lawyer Olympics”?  Now, I don’t claim to be elite amongst lawyers in anyway, but I might be able to train hard enough to get a wildcard seat on the US team – depending on what the “games” looked like. 

There could be the Marathon Contract Review event, one must review, redline and negotiate final drafts of 3 contracts of no less than 70 pages each in less than 4 hours when the project needs to begin. 

Another event could be “Discovery Hurdles”, where one must navigate through eDiscovery rules to narrow down the responsive production with no more than 5 objections all the while keeping under budget.

Or how about “Fencing with the EEOC”, where a participant is expected to ethically and respectfully parry, advance, lunge and engage with the EEOC over unfounded employee complaints.

For in house counsel specifically there could be “Board Room Gymnastics”, where one must gracefully contort, walk the line on a balance beam of competing and sometimes conflicting goals, and perform high flying routines perfectly without the use of a safety net.  The ability to literally bend over backwards my clinch a gold in this event.

What other events might we have in our Lawyer Olympics?

Monday, July 23, 2012

Managing Outside Counsel

Sometimes, one of the most frustrating aspects of in house practice can be managing outside attorneys.  This may be amplified when working for a smaller company that doesn’t have hundreds of millions of dollars in legal spend.  It only makes matters worse when balancing getting the right representation with managing your internal budgetary goals. Inconsistent service from outside counsel not only takes a lot of my time to manage, but it makes me look bad to my executives.  Neither of which is a good thing if you want more of my legal spend or for me to recommend you to my other in house colleagues. 

I’ve recently had to “fire” an outside counsel and have a discussion with another on expected performance.  It’s not fun having these conversations.  I understand that we aren’t a Fortune 500 and that my work alone will not get you that Summer Bonus.  (Although I have a hard time being to sympathetic as we don’t get Summer Bonuses in house…)  But that doesn’t mean that my matters are any less important or that you can slide on the customer service aspect.  I usually pay a higher hourly rate than those big guys because I don’t get the volume discount, so I expect full service.  And really, is it so hard to calendar important dates or actually listen to what’s being discussed instead of jumping ahead to what you think we’re going to ask next?  Ok, enough of my rant – the real question is how do we, as in house counsel, make this process easier?  I’m still fine tuning my approach, but I have found a few things that work and have few more up my sleeve.   

Here’s my short list:

 First, and definitely most important is to set clear expectations.  Is the firm going to be a general fall back for all sorts of matters, or will the representation be limited to a single matter?  What’s the scope of the matter?  What’s the urgency?  Why is there urgency?  What will the rates be?  Perhaps more importantly, what won’t be billable? 

Next, set milestones for review.  For litigation, after the initial analysis I want to review whether the initial case summary/strategy is still right, or if the budget and expectations need to be reset.  For IP issues, I want to know when each step is filed or each office action is sent – and when to expect the next. For transactional matters, I want to touch base after the initial contract review and again after the first round of negotiations.  I don't want a play by play, but I do need an overview so I can keep everything in line with expectations.

Finally, here’s one I’m starting to implement:  get feedback from the internal clients.  At relevant milestones and at the end of the matter solicit feedback from internal clients and rate the lawyers and firms yourself.  This helps to benchmark whether the firm/lawyer met expectations or if they need to work harder to get the next matter.  I will also share the results with some of my in house colleagues to see if my experience is unique or to recommend for or against their use of a particular firm or lawyer.   It’s a good idea to let your outside counsel know that you’re doing this.  People who know they’re being measured tend to try a little harder than ones that are banking on a good result to erase the bad process to get there.

Now you know mine.  I’m curious, what tricks have you found that help manage outside counsel more effectively?

Thursday, July 19, 2012

Crisis Management Lessons from a 5 Year Old

My 3 year old is the king of tantrums.  He is always finding new creative, and destructive, ways of expressing his displeasure with something.  His latest technique is finding an open door and slamming it shut with all his might.  He’s surprisingly strong for a toddler.  Last weekend his ire was raised at the thought of bedtime and my poor 5 year old was caught in the cross fire when the doorway he was standing in became the target for a tantrum.  As a result, the door was slammed on his little finger causing instant hysterics (mostly from the boy, and just a little from daddy). 

My first reaction to the crying was to comfort him and assume he was being overdramatic about it, but after further inspection his finger did look to be seriously injured and the pain very real.  After getting him some Tylenol and ice, we debated for the next 15 minutes on whether to take him to the urgent care or not.   We didn’t know if it was broken or not, or even how to tell when all he could tell us was that it hurt.  We decided to let him stay up and watch cartoons in mommy’s room and watch to see if it became too swollen or changed colors dramatically.  In the end, it was fine by the next day, just a little bruised.  So a trip to the urgent care would have been a waste.

So, why am I reciting this story on a blog about in house practice?  (Other than to have something to blackmail my boys with when they’re teenagers, that is.)  Because this series of events can stand in for any mini crisis you have at work.  A lot of the time when someone comes running into your office with a “sky is falling” scenario, it’s really just drama.  You have to inspect the issue more thoroughly before you know if there is any real reason to go into crisis mode or if wait and see is a better approach.   And sometimes, the initial analysis doesn’t give you a clear answer.  It could be something dreadful, or it could just be a minor issue that doesn’t merit a ton of attention.  You can’t always tell at first glance, so you have to triage the immediate symptoms and do a fuller assessment once more data can be gathered.  A lot of this is outside of your control. 

The important thing for in house counsel to do in these situations is to be the calming influence in the room.  You have to make sure that your business partner knows that you are taking his matter seriously, but don’t feed into the hysterics.  You have to provide the comforting reassurance that you are looking into it, that something is being done.  At the same time, you have to stay steady so that any anxiety you may have about the issue doesn’t fuel the fire further.  If it is troubling, you have to avoid giving the impression that the sky really is falling.  It’s a fine line to walk, and one that I fall off of regularly.  So the next time a crisis shows up on your door, remember Z and get the equivalent of Tylenol, ice and cartoons.   

Monday, July 16, 2012

Click-thru Agreements: Keeping Perspective

Your company has decided it needs a piece of downloadable software or to procure ‘software as a service’ available online.  Your purchasing department says they want to buy it from a website and gives you a 30 page print out of the online terms for review.  They’re just looking for a rubber stamp so they can order what they need.  You want to do your due diligence and read every word, thinking, “Seriously, 30 pages for to build a website?  These guys are morons.”  As expected, you find some things that aren’t in line with what you usually agree to, so you ask for an editable copy.  And that’s where it all starts to go wrong - the vendor says it’s non-negotiable, the procurement guy says they NEED this exact thing yesterday and you stand firm that you are Big Co, and do not agree to unfavorable terms.  EVER. 

What everyone needs is a little perspective.  Think for a minute about the vendor’s business model and where the product fits in with yours.  Is the product going to be a crucial part of developing your revenue stream?  Is it relatively easy to replace if something goes wrong with this vendor?  Is your vendor creating a bunch of custom, unique work just for you?  Does the vendor do the same for other customers? Or, is your order outside their normal business model?  All of this should frame your review of that click thru agreement.

Generally click thru agreements/online terms are appropriate where the product being sold is mostly cookie cutter, and the business model is based on high volume lower margin.  In these situations, it doesn’t make sense for the vendor to negotiate with you, no matter how big you are.   Odds are that even though you represent a multi-million dollar/multi-national corporation, you’re only spending a couple hundred, may a couple thousand dollars with this vendor.  The administrative costs of maintaining different contractual obligations for individual customers can’t be justified.

But, what if the software or services being purchased is critical?  The website may only cost a couple of hundred dollars a month all in, but it enables your company to gain a thousand times that in new business.  If it goes down, you’re out hundreds of dollars each minute.  Surely that’s the time to negotiate a good SLA with strict penalties for failing to meet them, right?  Wrong.  .  If you’re expecting a vendor to indemnify your lost business costs in exchange for $49.95 a month, you’re being unrealistic. If it’s that crucial, do it in house or have external redundancies.  Purely technically speaking, a website can be replicated and published with another service provider within 24 hours.   Most other click thru software or services are similarly easy to replace and/or not critical to the success of your business

None of this is to say that you shouldn’t look out for the best interest of your client.  However, with online agreements, that often means finding a more reliable vendor with terms that are more in line with your risk profile or committing to a higher spend with the vendor to justify the special treatment.   Keep a little perspective when reviewing online agreements; it will make your procurement guys think you’re a business partner and not just ‘the lawyer’.

Wednesday, July 11, 2012

The Art of Triage

My firm friends often think that life in house is shorter hours and less stress.  Sometimes that’s true, but end of quarter, end of year or during the ramp up to a new release there’s a ton of work to do that can easily rival their work hours with work still left to be done.  And all that is with less pay and more pressure to cut cost and boost efficiencies. 

Business, as they say, moves at the speed of light.  And you, in house lawyer, have to keep up or otherwise be forever labeled as a bottleneck, black hole or other derogatory term that discourages your business folks from coming to you timely.  This isn’t so hard if you’re one of many in a large law department.  However if you’re one of a few or the only one in a small department this can be one of the biggest challenges you face.  During these trying times, I take a page from our medical colleagues and spend most of my time in “triage”. 

What does that mean?  That means instant prioritization into one of three categories:  high priority- needs to be addressed if not completed within the next 24 hours, medium priority – needs to be addressed within the week, and low priority – no urgent need, but really should be addressed. 

It takes a good feel of the business overall to be able to quickly prioritize correctly the first time.  Every one bringing you a contract or customer issue will think it should be high priority.  Especially if it needs to be completed for them to reach their own personal goals or bonus objectives.  But you need a larger view of things.  You need to be able to have the global perspective and prioritize based on the company’s goals.  This means that sometimes, that contract that will enable the sales person to reach his quarterly quota is not as important as filing that patent application so you can launch the new product on time. 

The triage system also leaves a lot in the low priority bucket, and that bucket needs to be periodically re-examined.  Something that was low priority in mid-April, may take on a lot more urgency in late June.  Re-examine the buckets every week or so to make sure everything is still prioritized quickly.

Once you’re confident in your priority assessments, you have to communicate it to your business folks.  Nothing is a bigger time sap and waste of energy than having to respond to countless requests for updates on issues you’ve dumped into the low or medium priority buckets.  Give clear guidelines as to what your expected turnaround time is for each item submitted.  Whenever possible, give a heads up the submitter if that expectation changes.  I try to keep response times to a reasonable range, so that I don’t have to update submitters if I don’t finish today but will tomorrow.   If practical, let submitters know where they are in the ‘queue’ even if you can’t tell them what’s ahead of them for confidentiality or privilege issues. 

Finally, if you consistently leave work feeling like you’ve spent your day in a war zone, it may be time to consider hiring some help – or looking for a new job. 

Monday, July 9, 2012

Can Legal Scrum?

Scrum is the latest “it” methodology for developers. According to Wikipedia, Scrum “is an iterative and incremental agile software development method for managing software projects and product or application development.”  It’s a form of project management adapted for short term, fast flowing and quickly changing projects.  I’ve seen its use by technologists across the board from web designers to video game designers. 

Here’s how Scrum works:  Each Scrum team is made up of a product owner (the person responsible for ensuring that the end product is actually valuable to the business), the development team (a team with cross-functional skill sets that do the actual work), and the Scrum Master (the person responsible for herding the cats and keeping everyone focused, this person also has to manage scope creep and other distractions).  The team has short (15 minute or less) meetings to discuss progress, stumbling blocks and immediate plans.  It gives the Scrum Master an opportunity to identify what needs to be done outside of the meeting to keep the project on track.  Projects don’t typically last more than a month before the product is due, so keeping on track is essential.    After it’s all said and done, a post mortem is done to review what worked, what didn’t and how the team or project can be improved upon.  It’s fast paced, very collaborative and it can be extremely effective. 

Watching one of these groups huddle in their latest scrum meeting made me wonder, could the process be applied to the legal department?  There are definitely challenges unique to the legal world – confidentiality and privilege, longer timelines in some cases, very short ones in other cases, etc.  But the fundamentals could be applied.  For example, in a small law department each business unit usually has an attorney or staff member as their primary “legal” contact.  That person would take on the role of the product owner.  The entire department can work as the development team.  In teams where each lawyer/staff member has a specific area of responsibility – contracts, IP, litigation – the cross-functional skill set to advise and assist the product owner.  Imagine the benefit of getting a litigator’s take on that indemnification clause you’re working on or a trademark paralegal’s input on that unfair competition lawsuit you’re about to file against the competitor.  Of course, legal types are talkers, so we’ll need a strong GC to keep it on track.  But the information gained in a short 15 minute daily meeting could very well help each team member have a respect for each other and collaborate in ways that add a tremendous amount of value.  It would also give the GC an opportunity to hear about any external obstacles that are impeding completion of the project and work to remove them.  After that big negotiation is done or the verdict is read, a post mortem with the team can help provide some constructive criticism on what can be done better next time as well as identify the areas that really worked here and should be adapted to other projects.

 You would have to be careful to keep privileged information out of the meetings, and adapt the agenda to meet the shorter and longer timelines appropriately.  But with very little mucking around with the methodology, in house lawyers could gain a lot from using Scrum.  And really, who doesn’t want to add the title of Scrum Master to their resume?  

Thursday, July 5, 2012

Ten signs you’re in house at a tech/start up

I love top 10 lists.  I’m a big ol’ sucker for them.  They’re often informative and entertaining.  Not to mention quick to read and digest – so fits right into my schedule.  One of my latest favorites is one done by Susan Moon over at Above the Law, “You know you work in house when…” .  It was all the more funny because I related to each and every one of them.  I was a pregnant nun for my first Halloween at Volusion, (and still didn’t win the costume contest, my 80’s ‘back to school’ costume was a winner though!)  I have used “that’s a business decision” more than once today alone, and I know for a fact there is no one more evil than our competitors. 

As much as I loved this list, it was a little incomplete for me.  I’ve spent most of my career working for technology companies.  Half of that time I’ve been working for or with internet companies just out of startup mode.  And that’s definitely a different world.  So here’s a supplemental list for those of us who took that chance on a new(ish) tech company.

1.       At least one department is nicknamed the “cave” or “dungeon” because its employees refuse to turn on the lights, preferring to work by glow of the monitor like they did in their mother’s basement.

2.       Shoes are optional. Shorts and t-shirts are acceptable office wear.

3.       Wearing anything resembling a suit will get you multiple questions of where you’re interviewing that day and if your boss knows.

4.       Contracts?  We don’t need no stinking contracts…

5.       Going to the break room often entails dodging Nerf gun fire.  And the CTO is usually the best shot.

6.       The only way to get guaranteed attendance at a meeting is to provide food AND beer.

7.       The employees refer to you as “mom” or “dad”, regardless of the fact that they’re older or the same age as you.  “Mom’s not going to like that!” “I don’t know if that’s how we should do it, let’s ask Mom”… 

8.       “Do more with less” is not just a motto, it’s a competitive sport.  MacGyver has nothing on these guys.

9.       You get asked about the limits of workman’s comp with regards to “meetings” offsite, where go-cart accidents “may” have injured the new VP. 

10.   You were in college when your founder was in diapers, and he was probably smarter than you then too.  

What would you add?

Monday, July 2, 2012

Let’s get Mischievous

Earlier this week Corporate Counsel wrote about a new study highlighting the top 8 characteristics of a successful GC/CLO.  Of the 8 characteristics listed, most are relatively intuitive; a successful GC/CLO is persuasive, competitive, and decisive.  But my favorite characteristic by far was “Mischievous”. 

By “Mischievous”, the study is refers to informed risk taking.  Any risk taking is rare in legal types, so it’s easy to see how those that master the art of it are most successful with business people who make their millions doing just that.   For many lawyers, risk is what we spend our careers advising our clients to avoid.  We get frustrated when they don’t heed our warnings and end up in hot water.  Every lawyer out there has a story about when a client didn’t listen and it ended up costing.  Most don’t think about it, but they’ve got more stories about when a client didn’t listen and it ended up okay or benefiting the client. 

Let’s be clear, we’re not talking about dumping toxic chemicals in the water or committing securities fraud.  We’re talking about signing that contract without the best language in it or entering into that market that’s high risk, because the likelihood of needing that language or facing a catastrophic claim is so low that the profitability of the deal until then is what really matters.  Sometimes, it’s taking a more liberal interpretation of a regulation because otherwise the cost of compliance is exponentially higher than the cost of non-compliance.  

For lawyers, making the recommendation to do the riskier can be hard.  It’s innate in us to have our first reaction be to advise the path of least risk, even if that is the path of lowest profitability.  I’ve had that gut reaction before too (and still have it some days).  The trick is to lighten up a little.  Before giving your sage, risk adverse advice analyze the real risk from the perceived risk and how material the risk is to the business.  What are the chances that the language you’re fighting to get inserted will come into play in the real world?  What is the real potential for a claim even should things go wrong?  If a claim arises, what’s the practical damage?  What are the potential benefits of doing the deal or entering into the market despite the risks?  Then use those questions to frame your advice.  Inform of the risks, but also of the practically of them really being an issue.  Find creative ways to avoid or minimize them and at the end of the day realize that some risk is necessary and even beneficial.  If it wasn’t at least a little risky, everyone would be doing it and making money at it would be more difficult. 

If this comes really hard for you, practice with small things.  Let your marketing department use a description that stretches the reaches of puffery.  Let you HR team terminate an employee without having the *perfect* documentation.  Let go of the million dollar limitation on liability for the $5,000 vendor contract.  Once you’ve gotten to the point where these things don’t bother you, move on to bigger risks.  As your risk tolerance rises to match that of your management team, you’ll find that you are brought in on more conversations and sought out for your advice more often.  You may also find out that it’s kind of fun being mischievous. 

What are your tips for taking informed risks?

How my autistic son has made me a better lawyer.

I am the proud mama to three very exceptional boys (and that’s a totally unbiased opinion shared by his Nana and Papa and all his aunts).  My middle son, “LG” is on the spectrum, and raising him and interacting with him is really different than it is with his brothers.  While there are definitely challenges, he brings so many good things into our lives.  Because of him I’ve learned patience beyond what I ever thought I’d have, the joy of simplicity and so many of life’s lessons that I would have never considered if it wasn’t for LG.  And, because the other half of my world is work, I’ve applied some of those lessons to my professional life.

1.        You don’t always get good facts.  We learn in law school that “bad facts make bad case law.”  And that sucks.  But in the real world, you’re surrounded by bad facts.  I’ve yet to be involved in a dispute or negotiation where either party was 100% right on all counts.  You’ve got to deal with the hand you’re given and make the best of it.  One thing I’ve learned from LG is that nothing is going to be perfect, and by accepting the flaws you can stop worrying about what isn’t right and focus on how to achieve your goals using what you do have. 

2.       You can’t count on consistency.  With autism, a skill that LG learns today may regress tomorrow.  I can never be sure whether he’s “really” got something until he’s been doing it for a long time.    We may have conquered eating with a fork this week only to have to go back to hand feeding next week.  The same thing can happen in house.  You may think that the business has the process down and you can move on, but then a new employee or vendor comes along and either doesn’t know the process or doesn’t like it.  You may have to start all over to recreate the process and training.  If you get frustrated every time you take half a step backwards you’re going to easily discouraged and won’t be able to recognize when you’ve taken two steps forwards.

3.       Sometimes communication style matters more than substance.  LG has limited understanding of language.  While it’s increasing every day, there are some days where it seems like I have to try every method of I can think of to convey the same message until he finally understands.  When dealing with various business people from different backgrounds and with different personalities, the way you communicate can convey a lot more than the substance of your message.  For example, a younger inexperienced person may not pick up on the nuance of a “general rule of thumb” being something that you follow most of the time but can deviate from without serious consequences.   Whereas a person with a lot of experience may think that you’re explanation of the law makes you a “know it all” because they were just looking for a yes or no answer.  I admit; this is one area where I’ve still got a lot of work to do personally – both with LG and at work.  But knowing that is half the battle (or so they say…)

4.       Change is the hardest thing for anyone to accept.  LG does best when he’s within the world and routines that he knows really well.  Take him out of his comfort zone or change up the routine even slightly and you can be guaranteed a night of melt downs, tantrums and probably a few bruises.  Even the transition from one routine to another that he knows if he’s not properly prepared can result in drama.  His autism highlights this challenge for him, but it’s true for most people.  Change is scary, even if we know what we should be expecting.  Even if we want the result of the change, the process can be terrifying.  For a business leader, the prospect of dramatic failure that results in the loss of jobs can be immobilizing, even if the expected outcome is the exact opposite.  As in house counsel, our job is to advise and guide through the transition.  Help minimize the risk – or even just the perception of risk - and you’ll become the person your management team wants to stand next to them during the scary times.  Over or under react and you’ll end up heightening the fear and making the transition worse than the outcome could ever be.  When you start getting left out of the process, you may want to look at how you handle change.

5.       Life is beautiful.  LG challenges me daily, I’ve spent hours worrying about his future and crying over what he doesn’t have.  But a day hasn’t gone by since he’s born that I have thanked my lucky stars to have him.  His unadulterated joy at the simplest of things, the way he marvels at how his shadow moves across the wall or how the dust floats in the sunlight can stop me dead in my tracks.  He reminds me every day to enjoy the ride.  As lawyers, we have a lot of ups and downs.  It can seem like we only deal with the problems.  But take a minute each day to think about all the beauty in your world.  Isn’t it amazing that your company can service so many people, helping them to obtain the things they want or need?  Can you appreciate how much your life has been enriched by getting to know Amy in accounting or how much you’ve learned by working on that deal with Jay in sales? 

It’s amazing to think about how much I’ve learned from my almost 3 year old autistic toddler.  I can’t wait to see what he’s going to teach me next.  What can you learn from someone like LG?