In-House Counsel

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Imagine for a moment that you are the HR Manager for a company with many physically demanding jobs. One of your employees submits a doctor’s note prohibiting her from lifting anything over 25 pounds. Mindful of your obligations under the Americans with Disabilities Act (ADA), you check to see if the lifting restriction will prevent the employee from doing her job. Unfortunately, after checking the employee’s job description and talking with her supervisors, you conclude that lifting is a key part of the employee’s job (in legal terms, an “essential function”), and there is nothing practical that can be done (in legal terms, no “reasonable accommodation”) to allow her to perform her job. When you tell the employee that she cannot return to her job, she asks if there are other positions available within the company that she can be transferred to. You say you’ll look into it, but when you start asking around, things get complicated. There are a handful of open positions in other departments, but the job requirements are different and some of the positions already have applicants who seem better qualified. None of the positions have exactly the same pay as the employee’s warehouse position, so she would either be getting a raise or a demotion. What should you do?

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“Cyber liability insurance” is often used to describe a range of insurance policies, in the same way that the word cyber is used to describe a broad range of information security related tools, processes and services. Everyone is talking about the need for “stand alone” cyber liability insurance policies. These stand-alone cyber liability insurance policies basically cover expenses related to the management of a breach, e.g, the investigation, remediation, notification and credit checking. However, cyber liability coverage is also found in some existing insurance policies, including kidnap and ransom and professional liability coverage. There may also be some limited coverage through a crime policy if electronic theft is added to that policy.

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On September 18, 2014, InsideCounsel magazine held a corporate counsel conference to facilitate discussions on current legal issues. In sessions on governance and compliance, industry experts addressed the current top challenges that in-house attorneys face when managing enterprise risk.

Cybersecurity is no longer just a “technology” issue. It has become a business and legal issue. Compliance and management personnel must be trained and informed on the impact that cybersecurity risks present to the business. Companies must have a business response, not just a technical response, prepared for when something goes wrong. The question is not “whether” a cybersecurity issue will arise, but when.

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Biglaw litigators may enjoy healthy pay, but they are also the target of some ribbing — particularly from the trial-lawyers bar. Anyone who has practiced litigation in Biglaw has heard that they are at best a “deposition lawyer,” better suited for churning out endless motions than for performing in front of a judge or jury. There is no doubt that for the majority of Biglaw litigators deposition experience is much easier to come by than trial experience. And while trials are definitely more intensive and fun, in my experience preparing for a critical deposition in a patent case is in a way more difficult. Unlike at trial, where nearly all of the direct and cross examinations are scripted, there is an element of the unknown at a deposition.

When it is an important witness, such as a technical or damages expert, everyone involved in the case knows that a deposition can be a make-or-break event. In fact, one of the things that makes preparing for trial testimony easier than preparing for a deposition is that when we prepare for trial, we rely heavily on prior testimony in the case. The best source for that prior testimony? Deposition transcripts. But going into a critical deposition, there is much more uncertainty. Everyone on the team worries if the witness will hold up. Does not matter how experienced the expert is, or how senior a business person. The wrong answer can doom a case.

While it may seem like deposition defense is a thankless job, it also provides a priceless opportunity to “hear” your opponent’s approach to important issues in the case. And that can be even more valuable than trying to extract information from a well-prepared witness at a deposition you end up taking at another point in the case.

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I recently had the good fortune to hear Ian McEwan (author of the wonderful Atonement, among other books) and Steven Pinker (a name I’d never heard before — yet more proof of my vast ignorance) discuss what makes good writing. McEwan is of course a gifted novelist; Pinker is a cognitive scientist who thinks about (among other things) how children acquire language skills. This made for an interesting discussion.

Both authors had recently published new books. If you don’t want to spring for the price of Pinker’s book, you can read the nutshell version of his thesis in his recent article in the Wall Street Journal.

I stole the title of this column from Pinker’s talk. Pinker says that many people blame the internet for the younger generation’s inability to write clearly. But if Twitter’s the culprit — “the kids these days can write only 140-character sentence fragments” — then the world should have been awash in pristine prose in the days before Twitter.

We were not, of course. Most writing sucked in the ’90s, too. And in the ’80s. And the ’70s. And, according to Pinker, people have been complaining about bad writing in literally every generation since the invention of the printing press.

So it would be nice — but wrong — to blame today’s bad writing on modern technology.

If technology isn’t the culprit, then what is? Pinker’s thesis is one that I suspect all good legal writers have known subconsciously all along. But it’s worth speaking the words out loud and thinking about how to use this concept to improve both your writing and the writing of those you edit. . . .

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This past summer, Today’s General Counsel conducted a survey of in-house lawyers about their practices in hiring outside counsel.

It turns out only 17 percent researched a law firm by checking out the firm’s web site.

So how do they research law firms? Is it through social media? (Spoiler: No.)

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A time-sensitive matter comes in. An experienced hand is needed to help. Where to look for that help? In Biglaw, the answer is usually an easy one: call up Partner No. 37 in distinguished branch office No. 6, and keep the billable hours rolling — with a happy nod towards a successful “cross-sell,” and instant validation of the underlying “size is good” concept behind so many of today’s firms. But is Partner No. 37 really the best lawyer to help out? Hard to believe that the answer is “yes” more often than not. Because Biglaw firms are constructed the way they are, however, there is a premium on making sure that existing firm resources are utilized as much as possible.

At the same time, we know the legal industry is struggling to cope with demand fluctuations, or all too often a lack of demand for expensive legal services. In the current environment, it is not a surprise to see Biglaw firms contorting themselves to reach optimal size, whether through mergers, layoffs, or lateral growth. Despite their efforts, there are very few firms that are optimally size-calibrated in relation to the demand for their services. For those firms fortunate enough to experience the occasional demand spike, retaining the ability to be nimble on staffing can mean the difference between a satisfied client or one who looks elsewhere “next time there is a big need.” Firms want repeat business, and being able to incorporate experienced additional lawyers — within the budget for a particular matter — onto the legal team can make a real difference in whether or not that repeat business happens.

But where else can firms (of all sizes) go for experienced help on short notice?

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Online Password

You are general counsel to a company, and your CEO steps into your office, clutching his iPhone in one hand and wiping sweat from his brow with the other, and tells you that a compromising photograph of him was stolen from his phone and posted online. You start thinking not if, but when, shareholders will discover this embarrassment, how much it will cost the company and what legal action to take.

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One of the phrases we hear most frequently in client feedback interviews is “Make my life easier.” Clients often describe that as the key to their most successful outside counsel relationships, and at other times they express that wish for broken relationships. But what does it really mean and how can we put it into practice? Like a diligent athlete, those who make their clients’ lives easier pursue it as a way of life rather than an act of duty.

As with most of our recommendations, we highly encourage you to customize your approach to the client, include the client in the discussion and adapt and evolve the value over time. Here are some ways to get started:

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Over three days during September 17-19, InsideCounsel magazine succeeded where others have not. They created a national forum to facilitate women-to-women exchange on current legal issues. This year’s conference was the second annual meeting to bring together talented women attorneys. As part of the process, InsideCounsel invited nationally-recognized women who are General Counsel for Fortune 500 companies and attracted the best and brightest among in-house attorneys around the world. One speakers’ panel shared their experiences for getting to the GC leadership positions where they are today, and the advice is refreshingly candid.

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