Hello again everyone. I have been working on my annual “cool tech” post, but it’s not ready for prime time as I am still sifting through things. The amount of tech out there (cool or otherwise) is amazing. And since I want to give you my best recommendations, I am going to work on it for another week or so. Instead (and because I am a big believer in keeping to a regular publishing schedule), I thought I would put out a current index to all of the “Ten Things” posts from post number one in November 2014 to last month’s post about things to think about before hitting send. There are a lot of posts and this edition of Ten Things lists them all (which is kind of the point of an index but I digress):
compliance
Ten Things: Ten Questions To Ask Yourself Before Hitting Send (Lessons From the Trenches)
I was cleaning out some old files in a filing cabinet (yes, that’s still a thing) and I came across some plastic cards we had made up when I was head of litigation at a large technology company many moons ago. My team and I created the cards to help the business focus on key compliance issues, i.e., providing them cards with lists of easy-to-remember rules that could help keep them – and the company – out of trouble. They were about the size of a business card (that may not be a thing anymore…)[1] and were laminated so they would last forever.[2] And here in front of me were several different cards we had prepared close to twenty years ago. They included tips on competition law compliance, how to report a violation of the company handbook, and (my personal favorite) how to write smart emails that won’t end up as Exhibit A at trial. I remembered why we created these in the first place, especially the email card: If you have ever lived through big litigation (or any litigation for that matter), you understand just how deadly a poorly drafted email can be.
And deadly is right. I lived through several painful and protracted litigated disputes, and I can attest that emails (ours and theirs) were front and center, blowing up in faces like Wile E. Coyote-endorsed ACME product. The only thing missing was a sign for free birdseed. There were lots of lessons learned by unfortunate executives (and yours truly). Back then, I decided to take those lessons and create something useful to showcase basic rules to help the business – and the lawyers – write smarter emails (and other documents). As I read through the card, I realized that I had forgotten some of the lessons. And, yes, that failure has bitten me in the ass more than a few times. So, I decided it would be a good idea to write them out here for you – and for me. This edition of “Ten Things” sets out questions you should ask yourself about the email before you hit send:
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Ten Things: Essential Issues for In-House Counsel (2025 Edition)
Hello again everyone! As I have done for the past several years, I want to share 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 Julius Caesar took 23 stabs to the body (he should have read my blog about the Ides of March). Even though I am no longer practicing in-house, the process of trying to spot key issues is something I do every year, including in my role as CEO here at Hilgers Graben. Simply put, then as now, I like to spend time thinking about developments, trends, and issues that may have a material impact on legal departments/businesses over the course of the new year. I realize this is not something they teach you in law school (or anywhere really), so I will start by setting out the steps I followed to create my list as general counsel (and you are welcome to laugh at it, use it “as is,” or modify it to suit your own purposes):
- I started by just gathering information. I would catch up with other in-house lawyers and outside counsel, read newspapers, blogs, industry reports, attend conferences, sit in on business meetings, ask business leaders at the company, ask my team what they were seeing, and just generally pay attention to what was going on around me. Information is gold and, like Scrooge McDuck, I was (and am) pretty greedy about it.
- Once I spotted an issue that intrigued me, I looked at it from multiple angles and asked this question: How might this affect the company and the legal department? Answering this meant I had to understand the company’s goals and strategy so I could spot and manage risks and I had to think strategically (not just legally).
- From there, I made a list of the most important issues I spotted and worked them into the goals and activities of the legal department for the upcoming year. To assist me, I created multiple checklists to help quickly analyze the potential risks and strategic implications of the items on my list. Here is a shortened version of one checklist. 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?
The answers to these questions tell 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 useful tool that can help you quickly sort through a lot of information. You can also use an Eisenhower Matrix (2×2) to plot issues. Here is one option for such a matrix (though what you put on the X-axis and Y-axis is wide open):
It’s a little clunky for sure, but it just depends on what you find most useful. Regardless of what you use to help you think through the issues, it’s really all about finding a consistent framework and repeatable process. Okay, enough of the background story – let’s get going! This edition of “Ten Things” sets out my list of critical issues in-house lawyers should pay attention to and plan against for 2025:
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Ten Things: Building a Strong Compliance Department
If you work as an in-house lawyer at a large, mature company, odds are good that the company has a well-functioning compliance department. But, if your company is small or not very mature, there is a good chance that this isn’t the case. In-house lawyers constantly look for ways to avoid or lessen risk that can damage the company. While it doesn’t always get the love it deserves, a robust compliance function is an important part of risk-reduction at companies of any size. As such, in-house lawyers should get behind the creation of a compliance group if there isn’t one or enhancing the existing one whether it sits in the legal department or not. A strong compliance department moves the company from reactive to proactive in detecting and preventing wrongdoing. Besides avoiding trouble, this can lead to substantially reduced fines with regulators who, as a first step, usually zero in on whether the company has a robust compliance program or not. The compliance department also helps establish the right ethical tone at the company, a tone that makes it easier for employees to make the right choices. While many executives don’t see the value of the compliance function – despite the many proven benefits – the in-house lawyers do. But, they frequently don’t know what to do next. This edition of “Ten Things” walks through the basics of setting up or enhancing a compliance department:
Ten Things You Need to Know as In-House Counsel® 