10 Commandments

I get a lot of visitors to this blog from the key word search "how to manage outside counsel".  Indeed, that seems to be a question at many in house focused CLEs as well.  With the pressure on us in house folks to keep costs down but results up, we have no choice but to figure out how to better manage our outside counsel.  In the process of figuring out how to do that, I've come up with a few universal requirements.  These Commandments apply to any type of matter that I might send to outside counsel and the goal is always to achieve the best results for the best value.  Note that we don't always go with the cheapest hourly rate or the snazziest alternative billing proposal.  But we do consistently look for a partnering with a firm that wants to work with us to get the most value we can for our companies.  So in no particular order (they are equally important):

1. Know my industry.  I don't expect you to fully understand every motive behind every business decision.  That's what we do in house, we don't need you second guessing the decisions our company makes.  However, I do need you to understand the industry in general and who the players are.  For the most part, my firms need to know who my top competitors are and not represent them, or seek to even in non-adverse matters.  Nothing will lose confidence in a firm more than name dropping a competitor to one of my business partners.  They don't trust lawyers as it is - don't give them more reason to be suspicious.
2. Do not over-bill.  I know this seems like it shouldn't be an issue in 2013.  But it is.  Apparently not all in house lawyers scrutinize their invoices, so some outside counsel don't think twice about the amount of time they bill for a matter.  It took that 2nd year associate 6 hours to draft that trademark application so of course they're going to bill for all 6 hours.  However, I know that if a more experienced lawyer had done it, it would have taken 1 hour.  And if I had done it, it would have probably taken me 45 minutes.  So when I see 6 hours on the invoice I get very annoyed.  Where's the value in that for me?  Look at every line item and only charge me what is reasonable even if your team was inefficient about it.
3. Don't double charge me.  I get that firms have to train their new associates and that's how we get good lawyers.  But here's the thing - I don't want to pay the tuition for that education.  I'm already paying hundreds of dollars an hour for a newbie that doesn't know anything, why do I also have to pay for the partners time to correct all of their mistakes?  If you are reviewing a subordinate's work or 'catching' up on the case so you can call me and pretend like you're tuned in, cut your time in half (at a minimum).  If you're involved in a deposition or call because you're supervising your junior attorney to make sure they don't make any glaring mistakes, bill me for your time and write off theirs.
4. Staff appropriately.  This crosses several service industries, but law firms are not immune.  I should not be paying partner rates for fill in the blank forms.  At the same time, I'm more than willing to pay the partner on the case to lead the critical deposition in the bet-the-firm litigation.  Understanding the difference should be intuitive, but if it's not - ask me.  This is one of those things where there won't be forgiveness later.  
5. Be transparent. I hate getting invoices with line items like "Attention to matter 2.5 hours" or "Discussion about...".  With a passion.  I refuse to pay for that - ever.  Giving the benefit of the doubt, it's probably research and drafting or even meeting with the team members to strategize.  But what it sounds like,  "I thought about the matter in the shower and on my commute to work today so I'm going to bill the client for it."  Give me enough detail on the invoice so that I know exactly what was done, who you talked to, and how long each task took.  I hate getting statements that have 30 descriptions on one line item for a total of 7 hours billed.  How the hell am I supposed to know what type of value I'm getting with that jumbled mess?
6. Communicate.  I know that things in the legal system don't resolve themselves overnight.  This is just as true of patent applications as it is of litigation.  But I also know there are a hundred little movements that show progress along the way and give some indication of how things are going.  I don't need you to tell me what the judge had for lunch, but do give me a fairly consistent update on the state of things.  If there hasn't been an update in two or three weeks but you're expecting one next month - tell me that.  It takes less than a tenth of an hour to draft that line in an email or call and leave a voicemail.  And it gives me something to tell my management team that is constantly fretting about it.  It also helps me have a realistic view of what type of invoice I should be expecting at the end of the month.  So if I have to ask for updates more than once you won't be getting my business twice.
7. Budget with me - then stick too.  Generally if I'm hiring you it's because I don't have the skill, expertise and/or time to handle the matter directly.  So I need you to be honest and objective with me when setting out the scope of the matter.  I have to set budget expectations for my company.   Give me a realistic view of what the matter is going to cost.  Then stick to your projections.  If you think you're going to vary by more than a couple of points, you need to tell me first.  Lay out the costs of the current strategy and alternatives (along with the costs of those alternatives and their likely result.)  This gives me what I need to go back to the CFO and get more money if necessary.  When my numbers are wildly off, I look bad.  If I look bad, you look bad.  Don't make us look bad.   
8. Watch the third party costs and pass thru overhead.  When I see an invoice that has a $60 charge for a database or copying while I'm paying a couple hundred for the hour of work that accompanied such charge I start to think that you are bad at negotiating your third party vendor contracts or your algorithm for how you allocate costs is inefficient.  When I see a pass thru cost for a $80 dinner in the office while you worked late to get that motion finished on time I again think you might be inefficient and that it must have been a very nice dinner that I'm not paying for.  When I travel I'm limited by company policy to a reasonable per diem and coach travel arrangements.  Please follow suit.  It's impossible to justify to finance why they need to approve and pay an invoice where our vendors are passing through costs that are much more lavish than those allowed our own employees.  
9. Don't charge me for client development.  I really wish this wasn't a thing.  If you are sending me updates on your area of law, you are showing me that you stay current and are an expert.  If you are alerting me to some movement that one of my competitors is taking that may be adverse to me you are fishing for business.  When you come into town and ask me to have lunch/dinner with you, you are establishing or strengthening a relationship that you hope will lead to more business either directly or by referral.  I understand this is how your business is done and I put up with the incessant updates and invitations and try to play nice in return.  However, do not charge me for that favor.  If I see even one tenth of an hour charged to "updating client" or worse, researching the current state of affairs on my behalf without my asking you to first,  I will blow my top.  You will be fired and every other in house attorney I know will hear about how incompetently you manage your relationships.  
10. Don't go around me.  I know you're trying to get the business.  But going to my boss or one of my business partners directly trying to sell how you're an expert in x area is not doing either one of us any favors.  I have a strategy for how I assign work to my firms.  When I'm having to spend time justifying my strategy or explaining to the CFO that although you've got a great golf game there's someone else who is better fitted to this particular matter, I'm not going to be happy.  And that means you won't get any more work from me.  Because no matter what you do or say with by business partners, legal spend is my responsibility.  And they already trust me, that's why they hired me.  So there won't be much of a fight when I say that we should go with a more economical/more expertise than you have for every new matter.  

So those are the sins that will get you kicked off of my firm list.  Have any more to add?

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.

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?  

Start Ups Need Lawyers: Part III Marketing and IP

As April is Autism Awareness month, I've slacked on posting new content and instead directed readers to this old post - How My Autistic Son Made Me a Better Lawyer.  It's a good post, if you haven't read it yet, go read it.  Then visit LightItUpBlue.org to see how you can help.  In the meantime, I'll admit that I've recently been solicited by a few loyal readers to get on with the next post in our Start Up series. So I'll stop being lazy and get to it.

After employment questions, the next questions my start up peeps ask about the most are marketing and intellectual property (IP) related.  For something that can make or break your company, understanding how IP works and what you need to do to protect it is critical.  But IP lawyers are notoriously expensive and most corporate lawyer types don't have a good understanding of how marketing and branding tie into IP other than in the textbook ways.  And most startups don't bring on in house lawyers until a year or two after they really should have.

To start with, it helps to know what type of IP you have.  Most recognized is going to be trademarks.  Registered or not, the company name, logo, tag lines, product names, etc. are all part of your branding and may consist of valuable IP.  IP that needs to be properly selected and maintained in order to keep control over that value.  The most common mistake for start ups (or marketing types anywhere) is in the selection.  They tend to use images or names that are too descriptive and generic.  They want the consumer to know what they are getting, so they'll call car washing services, "ultimate car wash" and then wonder why they can't trademark it or stop competitors from using the name.  For a trademark to be enforceable, and thus valuable, it has to tell the consumer where the goods or services are from, not what the goods or services are.  It has to differentiate your car wash from your competitors, so that when they hear or see the mark they know immediately that it's your car wash. The more arbitrary the mark, the better - and the harder it is for a new company to gain that recognition in the consumer.  It's a fine line to walk, but remember at one time Apple had to introduce people to the concept that computers could be named after fruit and Google had to introduce not only a relatively new concept of searching the web but then tie it to a made up word.  Now they're both holders of some of the most valuable trademarks on the plant.   For this reason I always recommend that any branding strategy sessions include your in house lawyer.  If you don't have one, then you should at least have someone in the room who is thinking big picture on the trademarks and not just on the current campaign.  Once you've got a good trademark, make sure you speak with a trademark lawyer for an hour to get a good understanding of how you have to use your trademark in order to keep your rights to it.  The game isn't all over just because you've got a registration, that's where it actually starts.

The second most recognized IP right is patents.  Everybody thinks they know what a patent is in these days of patent trolls making headlines daily.  However, few entrepreneurs in early stages of business development think about patenting their technology.  Some are confused as to what is or is not patentable, some disagree with the whole patent concept and some are just too busy trying to get off the ground to think about getting formal legal protection for their innovations.  I honestly think ignoring your patent options early on is one of the biggest mistakes new start ups can make.  Getting a patent is expensive.  No doubt. And even most in house lawyers are not remotely qualified to have more than a cursory discussion about patents.  So you will need specialists.  But if you have something truly innovative, something that is revolutionizing the industry - then you need to protect it before an industry insider who has the money and systems in place to quickly and cheaply duplicate what you're doing will push you out before you get started.  Not to mention, that unlike trademarks that have to be used properly in order to get and maintain your IP rights, your ability to patent an idea will go away if you wait too long.  So early on, talk to a patent lawyer.  And not just any patent lawyer.  Patent lawyers are like any other kind of engineer.  Software engineers won't be the best people to talk about mechanical inventions.  Electrical engineers won't be the best people to talk about pharmaceutical discoveries.  Find a patent lawyer or firm that has an expertise in the business area first, then evaluate their patent law background.  You'll save a ton of money by not having to explain the basics of the industry before even getting to how your technology is innovative.  As a pro-tip, I also try to look for a patent lawyer that has spent some time in house as well.  It generally means more respect for my budget and more "business talk" to my inventors/management to understand the value of the invention - if there is any.

Then there are the often ignored IP rights, that actually have a tremendous amount of value but are often underappreciated - trade secrets and copyrights.  Unless you're in a content generating business, copyrights get no respect.  But your copyright in your website or source code can often be the most easily enforced right to protect.  You don't have to register them with the copyright office, but if you do you get better damages once you do enforce them.  And you can register them easily, cheaply and without a lawyer using a service such this one from LegalZoom.

Trade secrets can be the most valuable IP right you have - unlike patents, there is no expiration date.  The only catch is that you have to keep them secret!  In order to get injunctions and other types of legal protection afforded to trade secrets you have to proactively take steps to protect your trade secret.  NDAs alone are generally not enough.  Most often you will need physical, technological and legal tools keeping your secrets secret.  A rarely used best practice is to take inventory of your trade secrets annually and evaluate whether the steps you are taking to maintain secrecy are adequate.  Good news is that there's no extra cost in doing this, no lawyers needed.  Bad news is that it never gets done unless driven by counsel or litigation - even in the biggest companies - because it's time consuming and doesn't have an immediate benefit.  But like other annual exams, this one can save you big in the long run.

This concludes my start ups need lawyers series.  If you have a start up legal question I didn't address, drop me a line.  I'll do my best to answer (understanding that neither asking nor answering any questions as a result of this post create an attorney client relationship...) or direct you to someone who can.  If you have multiple questions that haven't been answered, you might consider whether bringing in an in house lawyer earlier rather than later might be the best thing for you.

Start ups need lawyers - Part II, more employment law questions...

Last week I addressed a few of the questions from a few start up HR folks that I know.  There were a few more they'd like addressed:

Moonlighting

FMLA/STD/LTD for small businesses, start ups

And here is where I mildly disappoint them - by telling them what they already know.  Moonlighting, the act of having a second career/job while still employed with your current employer, is not completely unique to the start up culture.  But it may be more prevalent in start ups that can't afford to pay its employees too much cash and opt for equity instead.  A guy's gotta eat, so he's going to get a paycheck somewhere even if he's really bought into building your start up.  There's not much you can do about it from a legal point of view.  Sure, make sure you've got your non-competes and confidentiality agreements in place, but otherwise in the land of the free you can't prohibit an employee from other gainful employment.  What's more important here is how you run your business.  Can you pay enough that your key employees don't feel that they have to work for a paycheck somewhere else?  Does the moonlighting of non-key employees even matter to you?  What can you do to increase satisfaction and meet the basic needs of your employees so that they don't look elsewhere for work?

On the FMLA/STD/LTD for small business question, the answer is "it depends".  Which is why start ups hate lawyers.  Whether you're not planning on adding a lawyer until your 100th employee or until your revenues exceed $20mm annually, you should consult with an employment lawyer on FMLA compliance.  The FMLA (for those who don't know, it's the Family Medical Leave Act), governs a lot of employment interactions although it is most known for protecting the ability of employees to take time off work to care for themselves or a family member.  The extent to which it applies to your small business will depend on a number of factors such as how many employees you have.  You won't be able to find a clear answer on a blog - and if you do, don't trust it!  Another thing to consider is that the FMLA covers federal required leave.  But some states, like California, may require more or different employee protections.  This is one time where you want the individualized interaction with a specialist knowledgeable in the federal and applicable state requirements.  Sorry if that wasn't much help - the best I can do on a blog like this is to say if you need more detail give me a shout and I'll send you a referral who works in your state/area.  

Start ups need lawyers too!

Last week I came across this article from Fast Company about the importance of hiring a lawyer for start ups.  It's a very interesting read. Coincidentally, I also had conversations with several people who happen to work at start ups within the following few days - one of the perks of living in Austin.  This got me thinking about why more start ups don't have in house lawyers and how they address the issues that do arise.  So I went back to my 'start up' peeps and started asking questions.

Most lawyers are risk adverse, and then there are those pesky professional rules that make it difficult to work for a start up with your compensation being primarily based on equity.  That means a start up has to be able to afford a competent attorney before they hire one.  Which will undoubtedly add to the total legal spend as they identify things that really should be reviewed by someone with expertise in that particular area of law.  Even a generalist like me will need to send out patent work, ERISA questions and securities work.  Hire someone with expertise in securities or litigation will save a lot of money when you file your I.P.O. or have to deal with heavy litigation, but you'll end up sending out more of the transactional, basic employment and more basic IP work as well.  So the cost of bringing in someone full time may be prohibitive for many start ups, even though they'd love to have someone on staff that they could ask quick questions of without having to worry about the billable hour.

So what do they do instead?  A lot of times they "wing it".  They'll hire specialists to give them very generalized advice and try to apply to their specific situations over time.  Some hire 'outside GC' firms to do the major stuff for them for a flat fee each month.  And a lot of times they go without, which can lead them into trouble. Unfortunately, usually it is gamble that they have no choice but to make.    So here's my contribution to the start ups, take it with my disclaimer that anything I say is absolutely general statements and does not constitute specific legal advice to you, etc.  You should consult a lawyer for the specifics of your case and realize that the law may vary depending on your jurisdiction.

With the disclaimer out of the way, let's get on with this. I spoke with a friend who handles the HR for an incubator and its related companies.  She has a few issues that come up repeatedly that cause her heartache:

• Employee classification (contract vs employee) risks and benefits of either
• Non-compete/Non-disclosure
• Moonlighting
• FMLA/STD/LTD for small businesses, startups

This post we'll talk about the first two: Employee classifications and the Non-compete/Non-disclosure issues.

Employee Classifications

To keep things simple, we won't get into the different FLSA classifications and determining whether your employees are exempt or non-exempt.  That's a very fact specific exercise and one which you should really hire counsel to do with you at least every couple of years.

The broader and often more relevant question for start ups is whether your worker should be an employee at all or can you engage him as a contractor.  The risk of misclassification carries some pretty expensive consequences. The worker may be entitled to back benefits and overtime pay.  This can add up over time, especially if employees routinely get stock options and contractors don't.  Once your start up hits the big time, those contractors may come looking for a payday.  On the other hand, if you classify someone as a contractor, you can usually pay a slightly hire wage because you aren't having to pay the payroll taxes, health benefits, and other carrying costs associated with having a full time employee.  This is especially beneficial if you're not sure if you'll have the need for that particular worker long term.

Unfortunately, the cost benefits of having contractors vs employees isn't really an important factor that should be considered when making the legal determination of their status.  It basically comes down to the work being done.  How much control do you exercise over the employee?  What type of work are they doing for you?  How long do you expect them to be working for you?  Contractors are better suited to shorter term assignments (under 1 year), with specific outcomes/work product defined, and not too much control over how they accomplish the work product.  If you supply all the tools, determine working hours and working methods, are interested in the body being there as much as the work product produced and expect the work need to be ongoing, you're better off hiring the worker as an employee.  If not, you may wish to engage the worker as a contractor - just make sure you have the appropriate agreements in place and that you don't treat them like an employee.

Non-compete/Non-disclosures

On this one, I'm going to do the typical lawyer thing and answer all related questions with "It depends".  The enforceability of non-compete agreements vary greatly by jurisdiction and even within a favorable jurisdiction like Texas, you have your work cut out for you.  The short, generalized answer is that all non-competes should be very narrowly tailored, focused on addressing real harm to your business and be accompanied by some sort of compensation.  The longer answer is that you should really consider who within your organization needs to be bound by a non-compete.  Would a non-disclosure or non-solicit be a better vehicle to protect your needs?  Does your receptionist pose a real risk to your business should she go to the dark side and work for a competitor?  Have you given sufficient consideration in exchange for the promise not to compete?  Are there any public policy or other reasons why an otherwise valid non-compete may be rejected by the courts?  Would you really spend the money trying to enforce a non-compete?  It's a pretty fact specific exercise that you should think about very carefully before adopting a one size fits all policy.

A much easier question is the non-disclosure.  I firmly believe that all employees of all ranks and any vendor (including contractors) that has access to any of your information should have non-disclosure agreements signed on the first day before they're allowed to login to your computer systems.  For some high level, strategic positions, you may consider having candidates interviewing for the position sign non-disclosures as well - especially if the interview process will lead to possible disclosure of confidential information.

Next post we'll go over some of the headaches associated with moonlighting and FMLA issues for start ups.  In the meantime, feel free to add your two cents about the start up world in the comments.

Communication Styles: from autistic toddlers to CEOs, the style matters.

I've been thinking a lot about communication styles lately, both professionally and personally.  I've mentioned it before, one of my children is on the autism spectrum.  For him communication is a constant struggle.  He has one word "go" that means several different things depending on how he says it.  Style means everything.  Like many autistic toddlers, he also has a lot of problems with transitions.  So changing my tone of voice or extremely exaggerating the look on my face when telling him what we're going to do next communicates so much more to him than the words do.  The style of communication can make a transition easier or cause him more anxiety.

Going through this process of figuring out how communication styles impact my interactions with my son has got me thinking about how communication styles impact your professional career almost as much, just not quite so transparently.  During a conversation with a friend, we discussed a style we both tend to jump into at work.  When someone brings up an idea or a question, I often jump immediately into execution (a.k.a. "lawyer") mode and start issue spotting.  I bring up the 'what about's' and 'what if's'.  For the person bringing it up, it may sounds as if I'm judging or being negative - even though that was never the intent.  Simply taking a minute to get excited about the idea or putting off answering the question until I've given it some thought and then not bringing up the irrelevant 'what about's' that pop immediately into my head would go a long way with reassuring the other person of the value of their idea and the value of my contribution.

You hear a lot from in house lawyers about never saying "no".  And it's true, if you say "no" too often you ruin your brand internally and become a road block instead of a partner.  But, what you don't hear very often, is how to communicate that the proposed solution won't work for whatever reason but your modification will.  If you jump too quickly to your modification, then it appears as though you're just being difficult.  If you go into too much detail about your path for getting at the modification, it appears that you're too academic in your thought process and don't understand how business really works.  There's a sweet spot in between the two that will garner you the respect of your business people while keeping you squarely in the giving solid legal advice column.  Many in house lawyers spend years looking for that sweet spot, only to find that it moves depending on the business person you're talking with.

What's important is to be aware of the need to constantly evaluate how your audience is receiving your communication style as well as the substance and make adjustments as necessary to reduce the anxiety.  Like my communications with my son, it can be extremely challenging - but when you get it right, it's one of the most rewarding aspects of human interaction.     

Big Game Advertising

In honor of all the great ads during the Big Game this past week, I'm dedicating this post to one of my favorite teams - Marketing.  I love Marketing.  In every company I have worked for they are the most enthusiastic, energetic, and optimistic group in the company.  That may be because they're given such creative license until Legal and Accounting/Procurement get involved to rain on their parade.

My favorite ad was the Samsung one.  As a lawyer advising the marketing team I have had that exact conversation on an almost yearly basis.  So when I first saw it, I literally laughed out loud.  And then shared it with my other media lawyer friends - marketing win!  Of course my conversations generally get a  stronger reaction from the marketing team, and elicits quite a few more curse words before we move on to working on alternative wording.

For the in house lawyers in the audience, the last part of the conversation is the most important part - move on to working on alternative wording!  Don't just leave your team hanging.  They have spent countless hours developing that promo.  They've agonized over the font, the colors, the overall look to try to convey just the right message in just the right tone.  And you've just told them that their labor of love can't be seen by the public - A labor over which they missed out on date nights, dinner with the family and seeing daylight for several days if not weeks.

You are not their favorite person right now.  So how do you change that?  First, let them know how real the threat is, the NFL takes real action every year over use of their trademarks.  Then start brain storming with them on what would be acceptable.  Offer alternatives - Big Game, Showdown in New Orleans, etc.  They don't have to be good - that's what the marketing team is for.  You just need to get their wheels turning in the right direction and be on their side. 

Handbooks, Policies, and Procedures - Oh My!

Since I ranted last week about the public misconceptions about the purpose of employment policies, this week I'm giving a peek behind the curtains on how they're drafted.  Sometimes this is done solely by the HR department, other times it's done solely by the Legal department.  It's best though, if it's done in a cross-department team that includes both HR and Legal.

This is because HR can be a little 'touchy-feely' in the way they word things so as to sound appealing to employees.  When doing that, policies can lose their legal enforceability by being too vague or alternatively can cause problems when the NLRB or EEOC gets a hold of them and starts reading intent behind wording that was cut and paste from something found on SHRM.

But, you usually can't leave it solely to Legal because attorneys can be OCD jerks that have to check precedent and case law before agreeing to any wording for anything, even if it's just the fluffy introduction to the company.  It takes months to get anything out of them, and when you do it's in so much legalese with so many disclaimers that the average employee can't read it.

OK, so maybe I'm exaggerating a bit, most HR and in house legal folks could draft a competent manual all on their own without any serious problems.  However, going through the exercise as a collaborative effort does offer the chance for an open dialogue with your HR team on the most recent state of the law.  It gives you an opportunity to make sure that the latest approved wording relating to employment at will gets in there.  It also gives you an opportunity to understand the concerns HR has regarding your workforce.  What policies do they want to highlight?  What do they not care so much about?  Listening well to how they approach this exercise will inform you as to where your risks are with regards to employee claims.  It also gives you some great material for upcoming training - and those dinner parties that you used to be too boring to be invited to.

Public Service Announcement: No One is Out to Get You!

Due to the flu epidemic overwhelming my doctor's office, I have recently had the pleasure of waiting for hours at an urgent care facility.  While I was there I couldn't help but over hear the conversation between the receptionist and another patient.  Don't worry, there were no HIPAA violations to report - but there was the giving of some very bad "legal" advice by someone who didn't know what the hell they were talking about.

Apparently the patient had previously been seen for some illness which caused him to miss several days of work.  His work asked for a doctor's note to explain the absence and asked that the note include dates of treatment and diagnosis.  The patient took offense at the request and according to his ranting at the front desk of a public waiting room, this was a gross invasion into his privacy.  The employer was being unreasonable and wanting information they had no right to.  The receptionist agreed and was appropriately outraged on his behalf.  She then went on to encourage him to fight this with his employer and assured him that they had no "legal" right to the information they were requesting.  In the very qualified opinion of the person who answers phones for a living, the employer was being unreasonable and must only be requesting this information as a way of trapping the patient into something nefarious.  By the end of the conversation, the patient was ready to take the case to the EEOC and sue for discrimination.  I doubt either of them thought about the fact that if he takes such steps the "private" information he's trying to protect would have to be disclosed.

The entire time I was witnessing this I couldn't help but wonder if many employees have such distrust of simple and innocent policies such as requiring a doctor's note for prolonged absences.  No where in their conversation was it mentioned that the policy may be to protect other employees from infectious diseases, or to verify compliance with FMLA regulations, or even to disqualify this particular absence from counting towards some disciplinary standard.  No, according to these two the employer was clearing out to somehow screw the employee.

While I didn't get involved in that conversation for a number of ethical and practical reasons, I do want to take a moment to reassure employees everywhere that with very few exceptions, your company doesn't care that much about you to establish procedures and policies specifically meant to railroad you into some disadvantaged position.  Most policies that you don't like have a practical reason that has nothing to do with you.  Some are even put in place to protect the company against overzealous employees who think every policy is somehow an invasion into their personal rights and a reason to sue.

So here's my public service announcement of the week:  No one is out to get you!  As someone who writes policies and approves procedures, we don't really give a damn if you were sick with the flu or drank too much.  I just need to be able to classify the absence as indicating treatment under FLMA or ADA or not.  The policy isn't written or enforced to "get you", it there to protect the company.  So get the note and get over it.