The Tortoise for a Lawyer

 

I recently was talking with one prospective client.  “One of my board members who has worked with lots of lawyers advised that I be careful.  If you consider hiring a former in-house lawyer, make sure she will be responsive to your needs.”  Too often, that Board member’s experience has been that former attorneys are slow.  He had a tortoise for a lawyer. That experience is not uncommon, unfortunately.

When I became the leader of a part of an in-house team, the first thing I did was to travel to meet with many of the subgroups of the business that our group’s internal customers (not clients, because the business as a whole was our only client).  During those meetings, a theme emerged that some of our legal team’s responses were not very timely.  The responses were simply taking too long.

Once I heard from a new in-house lawyer that he had received some advice from a more senior colleague about reviewing contracts for a business unit.  It went something like this.  “Send them back a bunch of questions by email.”  What would that achieve?  Sure, there are legitimate questions lawyers have to ask to refine a contract.  But this  senior lawyer was teaching the junior lawyer how to push something off, and that behavior was reflected in the feedback from our internal customers. 

What are the risks of being the tortoise?  First, it slows the business down and contributes to the feeling that the lawyer is the reason the deal can’t get done.  Second, if the delay is long enough, the business may be lost.  Third, it does not create the feeling that the lawyers are partners with the business, which may deter the businesspeople from seeking legal counsel when they should.

It is not enough to provide quality legal advice.  That advice must be timely.

“So, What’s Your Job for the Summer?” What a Lawyer Can Learn from Diane Court.

An element of providing quality legal advice timely is understanding the business objective. 

In the movie Say Anything, the female lead character, Diane Court, asks Lloyd Dobler a simple question – “So, what’s your job this summer.”  It’s a simple, direct question.  It generates a simple direct response.  “Job? Being a great date.”   

It is simple to ask the business partner and understand “What’s your job this summer?”  Or this quarter.  Or this year. 

Lawyers often jump right into being a lawyer and forget to look up, touch base with the business, and make sure they are aligned with the businessperson’s job for the summer, the quarter, or the year.  Sometimes, the lawyer assumes they know (and we know what happens with assumptions).  Sometimes, the lawyer asked once but hasn’t asked often enough to understand that the business strategy or objectives have changed.

How to get started?  My team of in-house lawyers called their internal customers and ask six basic questions that we modified from Kimberly Janson book, Demystifying Talent Management (2015).

•  What are your objectives in the next year in your job?
•  What are you being held accountable for in the next year?
•  How can I, as the lawyer working with you, help you meet these objectives mentioned in response to questions 1 and 2?
• What do you need more of from me as the lawyer working with you?
• What do you need less of from me as the lawyer working with you?
• If, at the end of the year, you were to rank me (a lawyer) as your most valuable partner in meeting your objectives, what would have happened during the year to justify that ranking?

Would you like help to discover ways to help your team to ask the right questions to help better understand the business they support?  Let’s talk.

Saying “No”

Providing quality legal advice timely certainly includes saying no.  It is important for an in-house attorney to have developed a reputation as a legal expert who is a problem solver and solution seeker to enhance her or his credibility when that moment arises.

Sometimes it is inevitable that a lawyer in a company’s law department must say “no.”    There are actions a business can take that are clearly prohibited and for which the lawyer must step up and say “no.”  Can we collude with a competitor?”  Nope.  “Can we take an action that Federal or State law clearly prohibits.”  Nope.  “Can we file false information with the SEC?”  Nope.

It is usually the exception rather than the rule that these types of issues arise where the answer to a legal question raised by the business is so clearly “no”.

The lawyer who has developed the reputation as a problem solver and a member of the team who is looking for solutions to legal issues that will help the business achieve its strategy and objectives will be taken seriously when they have to say “no.”

The lawyer who develops the reputation of always saying no without helping the business find alternatives that can reduce the legal risks while achieving the maximum business goal will be seen as frustrating at best.  That lawyer may be seen as the lawyer who cried wolf an ignored. Or the businesspeople will start to “forum shop” by seeking out a different lawyer.  Or worst, they will stop seeking legal counsel before acting.

The art is to set the stage for the rare occasion on which the lawyer must say no by being a proactive, problem-solving member of the team.

Need help or an outside perspective for your team on the legal function?  Let’s talk.

Useless Advice Is Like No Advice

As a puppy associate at a major law firm, I was sent to California to work on some discovery from a third party to the litigation.  While there, I was able to have dinner with a friend from law school who had moved back home to become one of the early lawyers for a small company called Yahoo.  The dinner conversation turned to our respective jobs.  “You big firm lawyers drive me crazy,” he said.  “I ask for help on an issue and I get a thirty-page memorandum back telling me ‘on the one hand,’ ‘on the other hand’, and ‘on the third hand’.  That doesn’t get me any closer to helping my clients inside the company make a decision.”

What my friend was really saying is that lawyers must be able to evaluate risk, prioritize risk, and help the client in a way that would permit him to make a decision.  He wanted his outside counsel to say something like the following.

“We’ve looked to your issue.  There are three risks we see.  The first one has a 10 percent chance of being an issue and you can probably ignore it.  The second one has a 50 percent chance, and you need to decide whether you can tolerate that risk.  The third issue is the one we need to focus on because it has an 80 percent chance of arising.”  This example is admittedly simple.  The response might also evaluate the size of the risk in addition to the likelihood.  That issue with a 10 percent chance of arising might be a break the company issue and my friend would want to know that.

Nevertheless, the point is this.  To provide quality legal advice timely, the legal advice must be actionable by the client.  Otherwise, the client is no closer to decisions that move the business along.

Recently in response to one of my blogs, a follower sent me a note. 

“I remember a few years ago when you emphasized the speed of the advice. As a frequent user of in house legal advice, that is still important. My recent frustration has been around actionable and executable advice. It seems that I am often explaining that our options are A or B due to a system limitations or [another] constraint, and the only advice I get is we need to do C.  Similarly, there is a moving goalpost phenomenon in which the better the data I present gets or the larger sample size I gather my law . . . colleagues raise the requirements. They seemingly ignore that we have operated with far weaker or smaller sample sized for decades. It almost disincentives progress on my end.“  

Yep, advice that is not in-line with the business constraints is another example of advice that is neither actionable nor executable by the business.  In effect, this person has experienced his or her law department saying “no” in a lot of words (when no is not the only answer) rather than working to an actionable solution.  It is a disincentive to his or her business progress, and it may well be a disincentive to asking law questions in the future.

Need help coaching your legal team to think like the business and avoid useless advice?  Let’s talk.

Partner v. Partner!

Businesses recruit lawyers to work inside the company by selling themselves as providing different opportunities and experiences than law firms.  Lawyers are attracted to in-house jobs for several reasons, including: (1) work on highly interesting legal matters and be embedded in and part of the business; (2) no timesheets to track every six, or ten, minute increments of the lawyer’s time the way that law firms do; and (3) the work-life balance is different/better than compared to law firms.

It is important for those transitioning from the pursuit of partner at a law firm (or indeed partnership itself) to an in-house role to understand that there is more of a change than just the benefits of these three major differences. An element of providing quality legal advice timely is becoming a partner to the business. 

Lawyers often lateral into the company from a law firm and keep doing what they have been doing.  Law firm lawyers are hired guns.  They are retained for a specific matter, contract, issue, or litigation.  They parachute in, try to learn a little about the business as it relates to that specific matter, contract, issue, or litigation, and provide counsel.  And then they move on to the next matter.

If the law firm model of a lawyer were what the business needed, it could just keep using a law firm.  An in-house law department is not a law firm inside the company.  It comprises the company’s lawyers.  If they have invested the thought into bringing a lawyer in-house, it should expect more from that lawyer.  These lawyers must immersed in the business.  They must become partners to the business.  Provide legal advice within the constraints of what the business can do.  They must be solution seekers and problems solvers.  They must be adept at prioritizing risks; not all risks are equal.  Although hard for some lawyers, they must be willing to take on or to accept some risks.  In short, there are major differences.  Reframing that mindset is an important part of being a best-in-class legal department. 

The trick, however, is for lawyers making the transition from a law firm to an in-house role to understand that the jobs are different.  The lawyer who is interested in the business and willing to leave the combine their legal training with the more freewheeling and riskier elements of business will make the most contributions and add the most value.  Remember that you are moving from the partner track or the partner life at a firm to a role that demands that you become an integral partner to the business.

And, if you are a law firm that seeks to be a strategic partner, almost all these observations apply to you as well.

Need help thinking about reframing your partnership with the business or culture of your law department?  Let’s talk.

Quality Legal Advice Timely

 

There are two major elements to the first pillar of a law department -- quality legal advice timely.  First, businesspeople want quality legal advice on which they can rely.  Second, they want it timely.

Quality -  

The easy part of quality is that internal customers want the legal advice to be correct and the result of the lawyer’s knowledge, expertise, understanding of the business objective, and best judgment applying the law and expertise to the facts. 

There are other elements as well.  There is becoming a partner to the business.  There is making sure the advice is understandable and actionable by the business; the advice must be useful.  There is having a reputation as a problem solver and solution seeks, not just the person who calls balls and strikes like an umpire by saying -- “yes, you can do that” or “no, you can’t do that”. There is clarity in communication – both written and oral communication – and effective listening to understand the business objective, constraints, and opportunities. 

Timely –

No one wants a tortoise for a lawyer.  So, the in-house lawyer must understand the demands of the business and the time-constraints.  The lawyer must set reasonable expectations as to what they can do and by when.  But the bottom-line is that business moves fast.  Opportunities present themselves and then are gone.  Good in-house lawyers, particularly those working with commercial groups, must understand that their delay could cause the business to miss the opportunity.  And that isn’t good.

It's not enough to provide quality advice late.  And its not good to provide bad advice on time.  Both are musts.

Law Department or Unicorn? Does a Company Need Either One?

My first blog post asked the question, “Why do companies have their own legal departments.”  Embedded in that question is does a company need a law department.  The lawyerly answer is, “it depends.”

You are a big multinational company, and S&P 500 company, and the like, which means you probably already have a law department.  Your company is big and probably generates lots of legal issues.  So, it’s a given that you have a legal department.

There are still some big questions for these in-house legal departments.  Do you have the right number of lawyers?  Are you balancing internal lawyer costs with outside options?  Do you really need a fourth lawyer, or do you need three in-house lawyers and some external support?  Is it better to pay hourly for that external support or use a subscription-based model that gives you more certainty on your monthly spend and may well be cheaper than the all-in costs of an additional attorney?

You are a smaller company or business, asking should I have an in-house team.  You may not be ready for an in-house lawyer, much less a law department.  Or what you want is a unicorn to be your in-house lawyer.  What's a unicorn?  You are looking for a lawyer that is 20% corporate, 20% commercial contract expert, 10% IP expert, and so on.  Here is a recent LinkedIn job listing for a general counsel:

“You will have proven business savvy and strategic vision, as well as experience with commercial contracts, corporate governance, finance, privacy, marketing, regulatory/legal compliance matters, labor and employment, litigation management, and intellectual property management (protection of trademarks, brands).”

You get the point.  A hard to find unicorn.

Maybe your needs are different than you think.  Perhaps you are stuck thinking about the law firm model where you have to pay different lawyers different hourly rates to cover all these legal bases.  Or, maybe you should find a subscription-based firm that gives you access to experts in all these areas, serves as your general counsel, gets to know your business – and may even be cheaper than salary and benefits for a unicorn – if you can even find one.