Law Day

May 1 is Law Day. First proclaimed by President Eisenhower in 1958, Law Day was originally intended as a counterpoint to International Labor Day celebrations, which were seen as communist. In announcing the first Law Day, Eisenhower said, “In a very real sense, the world no longer has a choice between force and law. If civilization is to survive it must choose the rule of law.” This noble sentiment still rings true today and reminds us to reflect on the role of law in the United States and to acknowledge its importance to a well-ordered society.

I’ve been writing this blog for a year and I appreciate the opportunity to be involved in the “great conversation” about our profession. I’ve met quite a few folks through writing this General Counsel Diary, and while it hasn’t climbed the ladder of most-read blogs in the US, I am always surprised by the number of folks who have seen one or more of the posts.

I’ve tried to chronicle issues of concern to in-house counsel and to explain the value that in-house counsel provides, a value that accounts for the ascendancy of the corporate counsel role over the last twenty years.

I will be taking a brief break from this blog to attend to some other projects. In the meantime, I wish all readers and supporters well. May you be inspired by life with every breath you take, and may every exhalation be a prayer of gratitude.

Omnibus

As I approach the year anniversary of this blog, I had a few miscellaneous thoughts I wanted to collect.

Fundamentally, a good practice of law is all about project management. If you ask clients about what they like about their attorneys, it will more likely be responsiveness, communication skills, delivering on time and on budget with few surprises, anticipating events and managing expectations. All project management skills. It’s the rare client who cares or even knows about the nuances of, say, drafting an indemnification clause.

I’d love to see a day when contracts are more like constitutions or charters, rather than exhaustive reviews of every conceivable risk that could occur.

Law is a very versatile career choice, but I believe that law schools often do their degree a disservice by encouraging law firms as a primary career path. Frankly, a law degree is valuable even without ever practicing because it teaches analytical skills, how to review and draft agreements, how to advocate, how laws are made and interpreted, public policy, etc.

I’d like to see cognitive neuroscience and law joined in some way. I’d bet that would tell us a lot about how to negotiate settlements and write contracts.

In the in-house setting, law departments may have to “beg, borrow, and steal” human resources, but that is not a bad thing. The way I see it, everyone in the company is a member of the law department (in that they have a role to play in compliance and risk management), but they just don’t know it yet.

Managing outside counsel fees take up a lot of space in trade magazines for corporate counsel, but isn’t the issue really as simple as effectively communicating your budget expectations and managing to them?

Don’t be afraid to entrust your paralegals and administrative staff with tasks that may be outside of their traditional duties. My experience is that people will invariably rise to the occasion, if given proper direction.

Working with partners and resellers requires a different sort of relationship than with a direct sales force. Sort of akin to the difference between friends and family. But if your company has good “friendship” skills (e.g. good communication, respect for boundaries, tolerance for differences), then partnership arrangements can be a tremendous force multiplier.

It’s natural for start-ups to want to protect their intellectual property assets, but in most cases the brand/market related IP will be of superior value to the patent related IP. Patents can drain a start-up’s initial resources, so proceed with caution.

I’ve heard it said that the law is what is boldly asserted and plausibly maintained. Or is that politics?

In mergers, I’ve found that the most critical “cultural” issues are the ones that revolve around how decisions are made, who is included in decision making, what level of information is required to make a decision, and how decisions are communicated. Much of the rest of the “cultural” issues are aesthetics or temperament.

Email is a great tool, but too often gives the illusion of productivity instead of the reality.

Multi-tasking is a dangerous trap. Some jobs can readily be multi-tasked, but many tasks require a degree of attention and focus that leads to diminishing or even negative returns when you include them in a multi-tasking environment. It’s the old maxim, if you don’t have the time to do it right the first time, how will you find the time to make it right. As such, be intentional about what you choose to multi-task.

I liked my time in law firms after law school. I view it as a sort of necessary apprenticeship. But I get true joy working in an in-house environment. To me, law and business management are the two wings of an airplane. Both are needed to lift the enterprise off the ground.

The Learning Law Department

I've written about the importance of having a "teaching" law department, but equally necessary is the development of a "learning" law department. By that I mean a team that is open-minded enough to seek lessons and ideas from everyone.

A few years ago, a rather retiring colleague came to my office, and made a very good case why our intended course of action was wrong-headed. The planned action was entirely my idea, so he was concerned that I might take offense. In fact, I deeply appreciated being told how and why we were going off course. Too often management of a team becomes a monologue, but I strive to build teams where dialogue reigns.

When the excitement of a goal or an idea transcends egos, that's when a learning enterprise is born.

This process starts in the quote from Thomas Carlyle, "Every man is my superior in that I may learn from him." Every day I go to work, I learn something new from my colleagues, and I hope that, on occasion, they might even learn something from me.

Your Lucky Day

Sorry not to have posted in February. It was a short month with many demands. The groundhog made his annual appearance, then went back into his den. Maybe I followed his lead and was hibernating too.

Anyone, I've been reading a slew of business books and it strikes me that one of the failings of most of these efforts is the failure to recognize the role that luck plays in an enterprise’s success or failure. But in most fields, be it business, the military, sports or otherwise, chance has been known to play a crucial role.

Perhaps this omission is because to acknowledge luck might seem anti-rational or fatalistic. After all, if fortune can be capricious, what use is planning and goal setting? What use is writing a book of business advice?

I would suggest, however, that acknowledging the forces outside our control emphasizes the need for diligent effort and flexible planning. Expecting the unexpected, developing contingencies, and having ready-made Plan B’s, all provide a competitive edge.

Acknowledging the role that fortune plays keeps you humble and vigilant when you are experiencing success, because you know that your luck will change. Understanding the presence of providence allows you to persevere in difficult times, also knowing that your luck will change.

My Daily Poison

No one likes to do unpleasant tasks. What constitutes an unpleasant task may vary from person to person, but we all encounter disagreeable items on our to do list. It’s tempting to try to avoid these unlikable jobs, but the more we delay, often the worse they get. One good strategy I’ve read about is to “eat the frog” first thing in your day. That is to say, do the most difficult task early on and the rest of the day will be easy by comparison.

So I have embarked on this frog-eating plan and will advise how it turns out. So far, most of the unpleasant tasks have not been so bad after all, and in any case they are done. Also, dealing with the difficult actually makes subsequent difficult tasks easier. Sort of like King Mithridates, who sampled a little bit of poison each day, so as to build up an immunity to concoctions that might be slipped into his meals by his enemies. His plan worked, and was immortalized in A.E. Housman's 1896 Book of Poems, A Shropshire Lad:

There was a king reigned in the East:
There, when kings will sit to feast,
They get their fill before they think
With poisoned meat and poisoned drink.
He gathered all the springs to birth
From the many-venomed earth;
First a little, thence to more,
He sampled all her killing store;
And easy, smiling, seasoned sound,
Sate the king when healths went round.
They put arsenic in his meat
And stared aghast to watch him eat;
They poured strychnine in his cup
And shook to see him drink it up:
They shook, they stared as white’s their shirt:
Them it was their poison hurt.
—I tell the tale that I heard told.
Mithridates, he died old.

Connections

Last week, I read Outliers by Malcolm Gladwell which is an entertaining and thought provoking effort that purports to analyze who, how and why success is achieved. It best works as a reminder that achievements are not always the result of overwhelming merit, but rather a mixture of talent with healthy doses of luck and circumstance. For example, the correlation of professional hockey players in Canada to early year birthdates (the Canadian hockey school league cut-off date is January 1 and Gladwell’s thesis is that older kids are bigger/more mature and thus receive disproportionate benefits such as better opportunities to play and additional coaching), although not a huge revelation to parents of elementary school age children, is eye-opening as to the extent of the “birthday” effect on youth athletic league opportunities. As the book progresses, however, the insights and conclusions become more attenuated. I remain unconvinced that China’s rice-based economy fully explains the sweep of Chinese culture from ancient times to today. There are many times where I thought the book fell into the logical trap of ex post facto, ergo propter hoc (after this, therefore because of this). Books like Outliers, and Freakonomics by Steven Levitt fall into the recent wave of pop sociology/economics books, and are entertaining to read, but may do no better matching correlations to causation than the rest of us. We know that correlation does not necessarily mean causation, but I would offer that causation does not necessarily mean correlation. By that I mean that many events are the result of a convergence of happenings and non-happenings that are very hard to discern and often unique. This is not to say that the effort to find underlying causes is not worth undertaking. Many of the advances of civilization have come from recognizing and exploiting patterns of causation. It’s just that the connections we find may not be the ones we expect.

All I'm saying is simply this, that all life is interrelated, that somehow we're caught in an inescapable network of mutuality tied in a single garment of destiny. Whatever affects one directly affects all indirectly. For some strange reason, I can never be what I ought to be until you are what you ought to be. You can never be what you ought to be until I am what I ought to be. This is the interrelated structure of reality. –Dr. Martin Luther King, Jr.

When to Call Your Lawyer

I had the opportunity to present some training sessions on "Working with the Law Department" to some of our sales teams last week. A frequent question was when to involve the Law Department in deals. I would recommend bringing the lawyers in as early as possible, in fact, even before they are needed. What I like to do is to contact the counterparty's counsel prior to documents being exchanged, just to explain the deal and to explain our approach to our business. There is an uncanny correlation between the occurrence of these calls and quicker negotiations.

As I have mentioned in an earlier post, contract negotiations are all about trust- if you build the trust before negotiations start in earnest, the contract negotiation cycle will be shortened. Plus, the other party will often avoid taking a "by the book" approach to document drafting when they understand the context of the deal better.

As I said to the group, "If you do a little bit of law, I'll do a little bit of sales..."

Our Digital World- Email

As we start the New Year, I have developed a couple of work-related resolutions. The first is the continuation of a long-standing resolution to focus on the truly important tasks and not be fooled by urgent or semi-urgent items that masquerade as important. By important, I mean meaningful tasks of lasting value.

The truth is that no matter how long you work or how hard you try, some things will be left undone. Make sure that your undone list has as few important items and as many unimportant items as possible. We focus on our to-do lists, but this year, I plan to focus as much on my not-to-do list.

This year, I also plan to continue my long-standing assault on email. Statistics I’ve read estimate the number of emails sent per day (in 2009) to be around 247 billion. Even granting that 80% of this traffic is spam, that’s an astounding number.

Of course, email can be a great tool, but emails are not always the best medium for dealing with complicated questions. To me, the telephone is much better for providing a richer dialogue and usually a quicker result.

Moreover, as a lawyer, I have seen how emails can compromise the security of an organization, create a bad record and lead to unfortunate misunderstandings. This doesn’t even take into account the many emails that require reading through long email chains to figure out what is going on. I feel like an archaeologist digging through layers of soil to reach the meaning of some emails; and sometimes like the movie Memento, emails are presented in some convoluted backward chronology.

So I offer five starter rules for using email, don’t use emails to air controversies, don’t write what you wouldn’t say to someone’s face, be descriptive in the subject line, keep your writing appropriately short (even terse) and use caution in replying to all.

May all your 2011 resolutions be successful.