A Legal Tabloid - News, Insights, and Colorful Commentary on Law Firms and the Legal Profession
Managing Editor: David Lat
Editor: Elie Mystal
Assistant Editor: Staci Zaretsky
Contributors: Kashmir Hill, Marin, Mark Herrmann, Jay Shepherd
After two federal clerkships and several years as a litigator in law firms, David Mowry is happily ensconced as Counsel in Xerox Corporation’s Office of General Counsel. He specializes in commercial leasing transactions, only sometimes misses litigation, and never regrets leaving firm life. You can reach him by email at email@example.com.
I often tell the story of my first assignment as a summer associate, to draft a one-page complaint. Two hours later, the assigning partner checked on me and saw that I was still stuck trying to get the index box to align. Shaking his head, he showed me the magic of the firm document library, and the “secret” of cutting and pasting necessary language. Chastened beyond belief, I vowed to avoid reinventing the well-worn wheels of documents. However, once in a while, reinvention becomes a necessity, as the “same old same old” becomes vestigial, and if you cannot coherently answer “why” you are utilizing some form or other, maybe it is time to examine the wheel treads for wear.
Look at the following indemnity clause and decide for yourself how many changes you might make:
[***] at its expense, will defend indemnify, and hold harmless Customer, its parent, subsidiaries, affiliates and their respective members, partners, shareholders, employees, officers, directors, managers, agents and representatives against any and all claims, damages, liabilities, losses, actions, government proceedings and costs and expenses, including reasonable attorneys’ fees and disbursements and court costs (collectively, “Losses”) arising out of, resulting from or relating to [***].
I would remove “hold harmless” and “shareholders,” and limit “any and all claims” to “any and all third party claims”; let me tell you why….
It is that time of year when the treacle runs thick. Nostalgia can lead to the blues that can lead to a bout at P.J. Clarke’s that leads to a pounding head in the morning. Conversely, some of you are full bore into booking hours for end of year bonuses and have no time for such shenanigans. Then there are the lucky among us who are given money simply for having jobs — starting with Cravathians and the imitator firms. If you are one of those, good on you; there is no bitterness here — envy, perhaps — but not bitterness.
As I began to outline this week’s column I was alerted to some truly distressing news: Dave Brubeck has died at 91. If you had the pleasure, as I did, of hearing Mr. Brubeck in person, you were touched by the presence of an American treasure and true musical genius. Even if you’re not familiar with Brubeck’s music, his signature piece, “Take Five,” would likely be instantly recognizable. Brubeck was an inspiration for his artistry, yet was a self-effacing and quiet individual. When I was fortunate enough to see him perform, he ambled ever so slowly to the microphone to say a few words. One was concerned the man would topple over given the frail nature of his shuffling. After saying a few words, he’d shuffle back to his piano stool and the power of some greater being would generate through his fingers. He seemed like a man that you would wish for in a grandfather. Of course, news broke today that Charles Schulz had an ongoing affair, but I digress.
The point is that there are some folks who just exist on a different plane from the rest of us, and whom, for better or worse, we treat as heroes. The same can be said of several attorneys in my career. I am certain that each reader could submit their own list of attorneys who have mentored, assisted, helped up, or just been there for us as young bucks as we made our way through the profession….
It is that time of year when “A Christmas Story” begins to play on the endless loop left vacant by the old WPIX yule log. The scene I refer to is when Scut Farkus tortures Flick by turning his arm behind his back and forcing him to say “uncle” until Scut and his yellow eyes have had enough. Then he and his toady, Grover Dill, retreat back under the rocks from whence they came.
The Scut Farkuses of the in-house world are thankfully very few and even farther between. Usually, there is at least a façade of collegiality between different counsels representing their respective companies. Sometimes, this collegiality becomes real, and drinks are shared as deals are closed. But, yes, Virginia, there is a Scut Farkus Society.
They are the barely competent; just enough to be dangerous, and they usually somehow hit the lottery and work at uber-corporations whose money we as a company desire. As a vendor attorney, there is always a bit of kowtowing to the purchaser. Sometimes it’s a cultural necessity, but more often than not, it is a factor of needing the business. But everyone has a breaking point, yes, even me….
Marissa Mayer, the new CEO of Yahoo!, is pregnant. And she took the job knowing she was pregnant. And the board hired her with full knowledge that she is pregnant. Holy hell, what is the world coming to? Read the following:
“She joins a small-but-growing group of women leading major public companies in the U.S., pushing the number to 20 female CEOs out of 500, or 4%. However, she sets a precedent as the first woman to ever take the top position while pregnant. Will having her first baby impact her performance or perception as the strong leader that Yahoo desperately needs?” -Forbes.com, July 17, 2012.
Are you kidding me right now? Let’s play Mad-Libs and change some of the words in that paragraph to “first black woman” and “[w]ill being black impact her performance or perception.” Is the new paragraph more or less offensive? I would argue that both are disgusting….
What the hell happened to the ding letter? When I was coming up, you would interview for a position, and maybe get a callback (inclusive of a nice lunch). If the firm was interested, you’d get an offer, if not, a thin envelope with a “ding” letter. I collected mine like badges of some sort. Some bar in Manhattan used to give you a free drink for every ding letter.
Eventually, I grew up a bit and threw them away. I had no need for them, and they were simply letters of rejection.
Over the years, something happened to the common ding letter: it disappeared. Now, you’re lucky if a company informs you that they received your application packet. Some go all in and state that they’ll keep your information on file and if someone finds you attractive enough, they will give a call, but don’t hold your breath. After talking to many applicants and folks in the job market, my real question is this: “what the hell happened to common decency?”
The line above is from Airplane, a 1980 comedy that is regularly included in all-time top ten movie comedy lists.*
“Johnny” is the character who utters this and many more scene-stealing lines; he owned each scene in which he appeared, and was played by the late Stephen Stucker.
Each time he was on screen, and there were far too few appearances, you were drawn to watch him just to see what he would say. He nailed every line, and the audience loved him. My friends and I would regularly quote the movie in our younger years, as it signaled a paradigm shift in movie comedies –- riotous farces that contained foul language, sexual innuendo, and brief nudity. Among this genre, and ground breaking at the time were Caddyshack, The Blues Brothers, Stripes, and Porky’s.
These movies helped American movies evolve from the mid-’70s “cinema” into the early ’80s “blockbuster.” While these films broke boundaries and changed the rules, and even seem quaint by today’s standards, they’re still funny. But, back to Mr. Stucker.
While it is difficult at best to steal scenes in Biglaw, and be the person that folks remember (for the right reasons of course), it is even more difficult in-house. When you first transition, you are usually entering a company with policies and procedures, uncharted politics and a set hierarchy of power. You find your place soon enough and begin to learn from those that came before.
Last week’s column caused a bit an uproar at my attempt to analyze the recent JP Morgan loss of funds from an in-house perspective. I later posted the following in the comments section, and since most of you don’t venture down there (wisely), I am reprinting it here:
“I will take the heat for a column that should have flowed better from factual assertions to analysis. I take the point that attorneys may not have been at fault, and I should have made that point with more clarity in the column. I also should have been more clear in laying out a linear argument from the facts reported in the media. The point I was going for, however inartfully, is that this trade was likely reviewed by someone in a legal capacity prior to approval, and that review should have caused someone pause. Dimon himself admitted that this was a strategy examined by him and management over a month before being executed. [I] [a]gree that the risk analysis was likely not performed by attorney(s), but it doesn’t take a huge leap of faith to presume that the legal technicality of whether this was a proprietary trade or a hedge appeared on some lawyer’s desk. And given the distrust of CDS after the recent malfeasance rife in the industry, is it so hard to believe that … lawyers were involved? Nope, I wasn’t there, and I made a poor attempt to examine a scenario which only magnified my lack of fluency in the subject matter. Mea Culpa.”
Now, on to today’s attempt to offer an in-house perspective….
As an in-house attorney, listening to Jamie Dimon’s Capitol Hill testimony this week caused me no shortage of agita. How in the world does a sophisticated shop like JPMorgan engage in trading that “it didn’t fully understand?” We’re not talking about tranches of junk mortgages; this appears to be basic hedging that went awry to the tune of two billion dollars. Oh, and after this occurred, Dimon was re-upped as the top gun at JPMorgan and given a nice raise. I am sure that there are a raft of attorneys in-house and otherwise advising JPMorgan on this situation — and how to deal with it — but I am more interested in how these trades came to be approved in the first place.
I presume, without knowing, that JPMorgan’s traders have a gauntlet of approval processes to run before implementing new initiatives, and one of those processes surely involved legal approval, or at least legal “go ahead.” Legal surely reviewed the initiative or trades, or whatever the proper term of art may be, before passing it up to the sales floors, and this is the most troubling aspect for me. Assuming that the public testimony is accurate, (and yes, I know what happens when I assume), then the folks responsible for actually trading did not understand what they were doing. Wow. Just wow….
Former Dewey and current Winston partner Adam Kaiser, in my opinion, needs lessons in public relations. I don’t even need to review with you who I am talking about. If you’re reading this on ATL, you already know Adam Kaiser. You also know what he is alleged to have done, and how he responded to a single comment posted on this site.
You and I know all of this information because of Adam Kaiser’s ill-timed attempts to quash the use of his name by an anonymous commenter. His poorly conceived, heat-of-the-moment demands that his name be removed from the site ultimately resulted in the reverse effect; everyone knows his name, and what he is alleged to have done. And his name, while removed from the single comment, has now been repeated over and over and over. Adam Kaiser.
The saying goes that any publicity is good publicity. I argue that unwanted publicity that could damage a career or a firm’s reputation is far from “good.” Even if Adam Kaiser thought he was doing the right thing by sticking up for himself against an anonymous comment, he effectively screwed the pooch.
One of the benefits of presenting to large groups of in-house lawyers is meeting large groups of in-house lawyers. I am happily ensconced here in my job, but I have never stopped networking. I never miss an opportunity to make a connection, or to make a friend. I try very hard not to burn bridges, and I always examine job opportunities when they come to me. You read that right. Look, things happen, things change, and things can go bad. If you haven’t kept up your networking simply because the economy sucks and the job market stinks, you’ve been doing yourself a huge disservice. I’ll say just two words: Kodak and Dewey. It sounds like a bad horror film ad but “no one is safe.”
When I started practicing law, the paradigm of one job for one career was already long gone. Most commercial lawyers today engage in a sort of pinball training, bouncing from one gig to the next, and picking up whatever knowledge they can before settling into a position with some semblance of permanence. I am very fortunate to have landed here, but even so, I am a much better in-house counsel now than when I started.
Let’s say that it takes a year to two to become fully capable of handling the job you have. If you have been practicing more than ten years, as I have, that’s around five or six years of hard core ability. I am not referencing simple knowledge of the rule against perpetuities, but the ability to use the RAP like Ginger Rogers — backwards and in heels. But, that’s the actual practice of law, and networking experience should only get better by the year. So, I have about twice as much experience networking as I do practicing. And so should you….
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We currently have a number of active openings for associate roles at US and UK firms in HK / China, Singapore and two new in-house openings. As always, please feel free to reach out to us at firstname.lastname@example.org in order to get details of current openings in Asia, as well as to discuss the Asia markets in general and what we expect for openings later this year. Our Evan Jowers and Robert Kinney will be in Beijing the week of March 25 and Evan Jowers will be in Hong Kong the week of April 1, if you would like to meet them in person.
The US associate openings we have in law firms are in the usual areas of M&A, cap markets, FCPA / white collar litigation, finance, and project finance. The most urgent of our top tier (top 15 US or magic circle) law firm openings in Asia (among many other firm openings that we have in Asia) are as follows:
• 2nd to 5th year mandarin fluent M&A associates needed in Beijing and Hong Kong at several firms;
• Korean fluent 2nd to 4th year cap markets associate needed in Hong Kong;
• 2nd to 5th year Japanese fluent M&A associates needed in Tokyo;
• 4th to 6th year mandarin fluent cap markets associate needed in Hong Kong;
• 2nd to 4th year M&A / cap markets mix associate needed in Singapore.
The last time I flapped my wings your way, I tried to make at least enough noise about your mobile phone to make you more than a little bit uncomfortable. I hope I did. If enough of us become anxious enough about the known and unknown unknowns and knowns in our mobile phones, then we can start making wise decisions about how to manage that information and its resultant investigations.
Today, I’d like to put a finer point on the last installment’s topic by asking a question that seemed to catch most attendees off-guard at a conference panel that I moderated last week: is there discoverable personal information in a mobile app? Our panelists’ answer was a uniform “yes” with one stating that, if he had to choose only one type of data that he could discover from a mobile phone, he’d choose app data. Why? Because there’s simply so much of it and because almost all of it is objective – not just user-created like an email – but machine-tracked like GPS, usage duration, log in and log out times, browsed web addresses, browsed actual addresses. Also, most of us seem to have the idea that data doesn’t actually “stick” to our mobile devices the way it “sticks” to our hard drives. Maybe there’s a disconnect based on the fact that our phones are mobile so we assume the data is mobile to?
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