One of my favorite pastimes(?) is watching the behemoth that is the US economy. I have been fascinated by it since my Intro to Economics class in college way back when (supply and demand baby!). It’s a pretty incredible engine; dynamic and resilient over the course of hundreds of years. But it does have some down periods, big ones on occasion, and I have lived through several of these. And despite clamoring from the left and the right, whether the US economy is good or bad, up or down, really doesn’t depend on who is President. Our economy has a mind of its own – like a four-year-old or a cranky grandparent. Regardless, for the past couple of years, we have all been wondering if the USA will fall into a recession or not. So far, the answer has been “not.” Which is great. Gen Z deserves a break or two. If our economy does go into a recession one thing all in-house lawyers will see is an increase in the number of bankruptcy filings. It’s never a great day when a major customer of a company files for bankruptcy protection.[1] Most in-house lawyers know, intuitively, that getting paid amounts owed by that customer will now be a challenge. But there is so much more that in-house counsel must be aware of when dealing with a debtor in bankruptcy if they expect to properly advise the business on the next steps (or recognize an issue that requires the expertise of outside counsel). On the other hand, while most in-house lawyers will experience bankruptcy from the viewpoint of a creditor of the bankrupt company (my experience), some will have the unenviable task of seeing it up close and personal as counsel to the debtor filing for bankruptcy protection. Albert Einstein said it best when he noted, “That’s a bummer, dude.” He was, as usual, correct (and succinct). Consequently, in-house lawyers also need a basic understanding of the bankruptcy process in case such a filing becomes a realistic possibility, and they are called upon to provide some initial advice to the business or bring in the experts if necessary (which you will do if the company is on the verge of going under). Sound painful? Never fear, I got your back. This edition of “Ten Things” deals with bankruptcy basics for in-house counsel:
Ten Things: Creating a “Not-to-Do” List (Learning How to Say No)
Hello again everyone! I am very excited to report to you that my next book (number six) is in the hands of the publisher and should be out by this summer.[1] The working title is The Productive In-House Lawyer: Tips, Hacks, and the Art of Getting Things Done. I think you are going to really enjoy reading this one, especially if you find yourself pressed for time to do all the things you need to do on your to-do list. Which basically means anyone reading this. The book is jammed to the rafters with different ways to squeeze more time out of your day with the goal of getting more done (and more important things done) in the time you have vs. working more. While I am not going to go into too much more detail here (I do want you to actually buy it when it’s available), there is one section of the book I keep coming back to in my head. What section is that you ask? Well, thank you for asking! It is the section on how to say “no.” In particular, how to create a “Not-to-Do” list, i.e., a set of principles that guide how you will spend your time by setting out the things you will not spend time on (or spend significant time on). I certainly cannot take any credit for the idea of a “Not-to-Do” list. The concept has been around forever, and history is full of people wildly succeeding at not doing things, such as Emperor Nero standing by while Rome burned, my law school roommate, the Kardashian family, Congress… okay, enough of that. But you get my point, and that is the blindingly obvious fact that one path to getting more done is to reduce the number of things you are doing (Hey, I never said this was rocket science). One way to do that effectively as an in-house lawyer is to create a list of things you will not do – a “Not-to-Do” list. Alas, yet another thing law school, law firm, etc. never teaches you how to do (though it is such a fantastic tool). So, let’s fix that problem. This edition of Ten Things walks you through how to create a Not-to-Do list (and how to use it):
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Ten Things: Essential Issues for In-House Counsel (2024 Edition)
Hello again everyone and welcome to 2024! If you are a long-time reader of the blog, you know that I start the new year with a list of issues I believe in-house lawyers should pay attention to over the coming 12 months. I started doing this when I first became a general counsel way back when and something I kept doing throughout my in-house career. I still do it now as CEO of the Hilgers Graben law firm. To sum it up, I spend time thinking about developments, trends, and issues that may have a material impact on the legal department/business over the course of the new year. How did/do I do this? Here are the basics:
- It starts with simply gathering information. As general counsel, that meant (over the last few months of the year) speaking with other in-house lawyers and outside counsel, reading newspapers, blogs, industry reports, attending conferences, sitting in on meetings within the business, asking business leaders at the company, asking my team what they were seeing, and just generally paying attention to what was going on around me. Information is gold to in-house lawyers, the currency of the realm. Be greedy and gather up as much as you can.
- Once I spotted a potential issue, I looked at it from multiple angles and asked this question: How might this affect the company and the legal department? Answering this question meant I had to understand the company’s goals and strategy so I could spot and manage risks and I had to be a strategic thinker, looking beyond just the legal issues that might be at stake. One thing that has helped me over the years in terms of looking at issues from multiple angles is the “Phoenix Questions” (discussed in more detail below).
- From there, I made a list of the most critical issues I spotted and worked them into the goals and activities of the legal department for the upcoming year. To assist me with this process, I created multiple checklists to help quickly analyze the potential risks and strategic implications of the items on my list. Here is a version of one checklist, and it’s a helpful filter when you look at things coming across your desk day in and day out:
- Is this something that can create or destroy value for the company?
- How does this fit into my company’s strategic goals?
- What is the quantitative/qualitative impact of this?
- Could this be a game-changer and how so?
- Is this something a regulator might care about or lead to litigation?
- Who is impacted by this – company, competitors, vendors, customers – and how so?
- What happens if I apply game theory to this?
- Who needs to know about this in the department/company?
- How can we create a competitive advantage from this?
- Have others had problems or success with this before and what are the lessons already learned?
How you answer these questions tells you a lot about the issue you are analyzing and whether it matters or not. You do not need a checklist, but it’s a tool that can help you quickly sort through a lot of information. You could also use an Eisenhower Matrix (2×2) to plot issues, focusing on the ones you put in the upper right quadrant (and understand that you may move items around over the course of the year). Regardless of what you use, It’s really all about finding a consistent framework to use to consider and think about whatever is in front of you. So, there you go. Enough theory, it’s time to get on with another year of Ten Things You Need to Know as In-House Counsel and my list of critical issues in-house lawyers should pay attention to and plan against for 2024:
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Ten Things: Best Blogs (and Other Media) for In-House Lawyers (2023 Edition)
Hello everyone and season’s greetings from the penthouse of the “Ten Things” world headquarters in Dallas, Texas![1] I will start this post by wishing everyone a fantastic holiday season and all the best for 2024. As most of you know, 2024 is year 10 of the “Ten Things” blog and it is also the year the long-awaited(?) productivity book comes out. I am in the final stages of submitting everything to the ABA. More news on that as things progress. And if you are looking for some fun in January, please join me and a host of others who will be presenting at Laura Frederick’s (of How to Contract fame) ContractsCon 2024! I will be there discussing indemnity clauses but the agenda is jam-packed with far worthier speakers and topics. So, I hope to see you in person in Las Vegas in January!
But, on with the business at hand. Like every year, I end 2023 with a blog featuring all the other people you should be reading (or listening to) as part of your day-to-day in-house life. For me, the hard part is choosing just a few to highlight. There are so many great content generators out there fighting for your (and my) attention. Unfortunately, I cannot list everyone (and I rarely repeat listing anyone I have listed in the past, i.e., I just assume you know they are still worth your time – they are!). [2] And, if you are interested in past winners, you can start by reading last year’s edition of “Best Blogs (and Other Media) for In-House Lawyers.” Instead, I try to list some new voices for you to check out. And, same as always, there is no particular order to my list (literally I am just typing as I find things in my Post-it notes, faulty memory, and Google Keep folders). Okay, where was I…? Right, enough yakking, let’s get on with the 2023 edition of Best Blogs and Other Media for In-House Counsel!
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Ten Things: Creating Standard Operating Procedures for the Legal Department (Just a Fancy Way of Saying “Checklists”)
If you have been a long-time reader of the blog or my books, you know that I am a huge fan of checklists. There is perhaps no tool as humble and simple as a good old-fashioned checklist. There is also nothing more powerful than a checklist, especially when it comes to productivity for in-house lawyers. Early in my in-house career, I had a friend and mentor who told me we needed to create some new standard operating procedures for the legal department. I got very excited as this sounded like a cool, exotic assignment. And it was about time my talents were utilized for just such a task. Then he pulled out a one-page document with a list of tasks and tick-boxes next to each one. I was kind of puzzled and said, “This is just a f*&%$# checklist.” He paused for a moment and then smacked me upside the head, “Say that with respect newbie. A good checklist can save your ass someday!” Okay, that’s not all 100% accurate. He did not call me “newbie” – it was something much, much worse. But, seeking to avoid further disorienting blows to the cranium, I became a fast convert to the power and beauty of a good checklist … ummm, standard operating procedures. Over the years, I created hundreds of checklists for myself, for my team, and for others. I still use them literally every day.[1] Like many things with the practice of law in-house, no one teaches you why a checklist matters or, more importantly, how to create one. You’re just expected to know how. I realized that while I write about them a lot, I have been remiss in not explaining the “why” and the “how” of checklist magic. This edition of “Ten Things” corrects this state of affairs and we will get elbow-deep into the slimy, bloody guts of creating a good one:
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Ten Things: Asking For More Legal Department Resources (How and When to Go Big)
In my last book, Showing the Value of the Legal Department: More Than Just a Cost Center, I tackle one of the fundamental issues facing all in-house legal departments: it sucks to be a cost center. You can check if you want, but I am pretty sure that’s what I said.[1] Why does this matter? Because cost centers are places the business looks to cut when times get tough, or the numbers need “improving.” And, historically, most legal departments have had a ”cut my budget” sign taped to their backs. This is due partly to those evil bastards in finance, and in part because most in-house legal departments have not aggressively marketed themselves to the business. It’s probably more the latter, but who’s keeping score?[2] By aggressively market, I mean taking the steps necessary every day to show the value provided by the legal team, and, more importantly, showing how the department can create even more value if properly nurtured. If you have been a long-time reader of the blog, you know that I have written about how to go about showing value and how to market the department. Now I want to take on yet another task in-house lawyers often suck at (my early self included), i.e., how to ask for more resources (and not get laughed out of the room).[3]
I’ll lead off with it is not easy, but it can be done if you prepare the ground in advance of the ask. And now that most in-house legal departments are heading into “budget season.” It’s the perfect time to rip the “cut my budget” sign off your back and replace it with a “we deserve more budget” sign – or button. That’s right, this edition of “Ten Things” takes you through the process of how to ask for more resources and – on occasion – get them:
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Ten Things: Having Hard Conversations Inside (and Outside) the Legal Department
I have a lot of fun with this blog – and I hope that comes through. But every once in a while, I like to delve into something more challenging, more serious. Today is one of those days. Last year, I wrote about how to deliver “bad news” to the business. A year or so before that, I discussed how to fire someone. Neither is a particularly pleasant topic, but if you are going to succeed in the in-house world, these are conversations you will have and you need to know how to handle. Now it’s time to discuss the last of the trifecta of pain, how to have hard conversations at the office. It’s a close cousin for the first two but, as you will see below, requires a slightly different skill set and mentality. Hard discussions for in-house lawyers usually fall within a handful of categories, i.e., you are acting as a manager (or the subordinate), as a co-worker in the legal department, dealing with a co-worker outside the department, or you are dealing with someone outside the company (like outside counsel). Regardless of who you are dealing with, most of us (including myself, even today) avoid these types of discussions because they are not fun and because no one wants to be the bad guy. For in-house lawyers, it’s an even more arduous chore because – while lawyers are usually great when arguing for a client or for a client’s position – we are the worst at having discussions involving ourselves. No worries though, grab some coffee and stick with me; we’ll get through this because this edition of “Ten Things” discusses how to have hard conversations at the office:
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Ten Things: Cool Tech for In-House Counsel (2023 Edition)
Hello again everyone and welcome to another edition of “Ten Things You Need to Know as In-House Counsel.” This is one of my favorite posts of the year because every August for the past eight years (really?) I have written about “cool tech” for in-house lawyers – and this year is no exception![1] Once again, I have been scanning the (virtual) horizon for the most useful technology that will – hopefully – make you more productive, make your life easier, or may just be fun and interesting. If you have been reading my books, this blog, or my LinkedIn posts over the years, you know that I am a big fan of technology as a way to increase productivity and enhance the value of the legal department. The good news is that the technology needed to make this happen does not have to be overly complicated or expensive. In fact, I deliberately try to find low-cost – or free – solutions that are easy to adopt and use. As usual, I make no promises or warranties of any kind, implied or express (sorry, just covering my bases here – you can’t be too careful, especially with the ABA breathing down my neck about some book I’m “supposed” to be sending their way soon). I can assure you, however, that I get nothing for recommending the technology below. I just think these are all useful tools and worth checking out. So, with no further ado, this edition of “Ten Things” sets out my cool tech for in-house lawyers in 2023:
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Ten Things: Ten Maxims to Make Your In-House Counsel Life Easier
This week I have gone back through the last several “Ten Things” posts and, man, am I wordy! There is a lot to digest there (ChatGPT, marketing law, managing people, etc.) and I hope it hasn’t caused any of you to give up and look for someone with a pithier style. I think the problem is that there is so much good stuff to write about on any of the topics I select that I am having a harder time than ever keeping things concise. And… well, shit. There I go again – off on a tangent. Sorry! Okay, let’s reel this in before it gets out of control, like Dr. Frankenstein’s monster going medieval on the local villagers. Seriously, I have intentionally set out this month to write something shorter and punchier. Let’s see how I do.
Last week I was jabbering on about something or other and Mrs. Ten Things says, “You always say that. It’s like a motto.” Well, that got me thinking and I realized that she was – as usual – right. I have a lot of sayings that I repeat frequently because they make my point quickly and succinctly (unlike my blogs apparently). That got me mulling over my time as general counsel and some of the things I said repeatedly for exactly the same reason, i.e., over the course of a long career I was able to spot issues or problems and would use a simple, short phrase to convey what I thought we needed to do.[1] If you cut out the profanity, they are even shorter. A while back, I posted my rules all in-house counsel should live by. Now I want to share ten maxims[2] that will make your life as in-house counsel easier if you keep them on your lips and dear to your heart, i.e., this edition of “Ten Things” will set out ten of my favorites[3] along with a short (I hope) explanation of what I am trying to say:
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Ten Things: Marketing Law Basics for In-House Counsel
Recently, a client asked me to review some advertising copy, something I had not done for several years. It got me thinking about how much I always liked working with the marketing team when I was an in-house lawyer. They are the “cool kids” at most companies; fun, sophisticated, and always handing out the best snacks. And, they have lots of good swag to give away too. More importantly, they bring a shit load of legal issues to the table which, depending on your point of view, can be a positive or a negative. I tend to be a glass-half-full guy so I took all the crazy the marketing team could deliver as an opportunity to hone my skills (and maybe nab a free t-shirt, coffee mug, or Travelocity Gnome). And, since I knew nothing about marketing or advertising law when I started in-house, it was a chance to learn something new – which is always a positive in my book. After a rough start, I came to appreciate that “marketing law” covers a lot of ground, touching a host of legal issues. Because of that, all in-house lawyers should have a basic understanding of the different facets (and how the legal department can best help the business navigate the problem areas). Not sure what I am talking about? Well, read on! This edition of “Ten Things” discusses what in-house lawyers need to know about marketing law:
Ten Things You Need to Know as In-House Counsel® 