In-House Counsel

Ed. note: This post is by Will Meyerhofer, a former Sullivan & Cromwell attorney turned psychotherapist. He holds degrees from Harvard, NYU Law, and The Hunter College School of Social Work, and he blogs at The People’s Therapist. His new book, Way Worse Than Being A Dentist, is available on Amazon, as is his previous book, Life is a Brief Opportunity for Joy (affiliate links).

A visit to my office has evolved into something akin to the road to Lourdes. Pilgrims arrive red-eyed and defeated, faces etched with misery, searching for a way out of a trap.

The standard story is some variant of the following: You are either out of work or loathe your work. You have $180k in loans. You have either no income or an impermanent income paid to you in exchange for any joy life might offer. You see no hope.

Let me spell out the critical element here: You are one hundred and eighty thousand dollars in debt.

Just to fully drive the point home: that’s bankruptcy-proof debt.

You’ve yelled at your parents, but it’s not really their fault. You’ve wept and wailed and gotten drunk and stoned and consumed a scrip of Xanax. You’ve tried sleeping and pretending you don’t have to wake up.

Then comes the pilgrimage. Perhaps I can heal with a laying on of hands….

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An in-house lawyer receives an email from a law firm with the subject line, “Litigation Highlights!” Does she pop it open?

Probably not; it sounds like an advertisement.

Is there a subject line that stands a better chance of success?

Yes: Something that specifically identifies a subject that might matter to the recipient. Maybe: “The Constitutionality of ‘ObamaCare': A Preview of the Arguments.”

The recipient might or might not care about that subject, but, if she does care, at least she knows to open the email.

My not-so-hypothetical “subject” line — “Litigation Highlights!” — is off-putting enough, but, if you made the mistake of opening that email, the substance could be even worse….

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Companies are doing more business internationally and dragging their lawyers along with them. As you can imagine, doing international work has obvious challenges — foreign law, culture and language, time zone issues, cardboard that airlines call “food,” etc. These next couple of Moonlighting posts are going to delve into some of the nitty gritty of practicing in a global arena by examining one very basic, but essential, part of the in-house practice that I’ve discussed before — a meeting.

But first, a clarification of terms. People often use the terms “international” and “global” interchangeably. However, in-house lawyers who practice in these areas may disagree. Assuming the terms are used by Americans, an “international” U.S. business refers to a business that is headquartered in the United States and operates individual businesses in other countries that focus on the market in each of those countries. In this structure, each business in each country focuses on its own business and does not often coordinate with the others — communicating primarily with the U.S. headquarters in a hub and spoke kind of structure.

On the other hand, a “global” U.S. business is one that’s headquartered in the United States and builds businesses in other countries that focus on how the market in those countries could support cross-border business growth. In the global model, businesses in the other countries often work directly with each other. For the sake of simplicity though, I’ll use the term “global” for the rest of this post to refer to both international and global work. Now that you’re sufficiently confused, we can move on….

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I wrote last week about how an in-house lawyer overwhelmed by volume should stop worrying and learn to love the ignorance. Talking about ignorance plays to my strength, so I’m choosing here to expand the discussion.

When you’re at a law firm, it’s likely that you sell in part substantive expertise. You’ve assembled a “deal list” to prove that you know more about technology licensing than any other person on earth, or your “case list” shows that you’re better able to handle 10b-5 class actions than all those other pretenders. You may be selling certain things beyond substantive expertise — experience, relationships, presence — but substantive knowledge is part of the package.

When you move in-house, you’re no longer selling anything, because your poor corporate client is doomed to work with you, no matter what your state of ignorance. You’ll no longer polish your deal or case lists, because no one cares anymore.

But it’s worse than that: You won’t simply stop polishing your deal and case lists. You’re actually likely to lose some chunk of your substantive expertise….

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When I was litigating, I was assigned an arbitration. At the behest of a partner, I was asked to represent a “friend of the firm.” Those of you who understand why those words are in quotes already know where this is going.

The “arbitration,” which was supposed to allow relaxed rules of evidence, and take place in an informal setting, was held instead in a beautifully wood-paneled courtroom, with a gallery full of spectators. The very cranky arbitrator, who turned out to be a bitter ex-judge, ruled against me on each and every evidentiary objection the other side raised. In other words, I was prepared to arbitrate a relatively minor dispute, but I found myself knee deep in a full-blown trial, and there was nothing I could do about it. I took it on the chin, and got my clock cleaned. The result for the client wasn’t terrible, but neither did it support my fee.

I still get the shivers when I recall how terrible that experience felt. I could go on about how the assigned judge in the case pressured me to accept arbitration, assuring me that the arbitrator was a fair-minded individual who’d likely cut the mustard in the case. Or about my adversary, who was chummy with the arbitrator (I found out later). Or, about the client himself, who refused to settle, no matter what strategy I tried.

But, ultimately, I blame myself. The fault for any shortcomings in the presentation were my own. I made almost every rookie mistake in the book. Reading that transcript makes me turn red with shame. But, I took it on the chin. And so it should be with your in-house practice…

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One lawyer offers to represent you for $1000 an hour. Another lawyer offers to represent you for $400 an hour. Who’s more expensive?

The correct answer is: You don’t know.

You don’t know for three reasons. First, some $1000-an-hour guys are remarkably specialized.

The efficiencies triggered by specialization are obvious: If I need a lawyer to call the local real estate office and cause my form to be moved from the bottom of the pile to the top, there may be only one person in town who can make that call. He charges $1000 an hour; I buy a half hour of his time; I get off cheap. The $400-an-hour guy can assign a troop of $150-an-hour associates to research local real estate procedures until the cows come home, but that firm is not going to be cheap.

Specialization can yield efficiencies for other reasons, too. If I have a question about a particularly obscure subsection of some obscure law, there may be two ways to get an answer: (1) Call the $1000-an-hour lawyer whose entire practice is devoted to subsection VI(B)(2)(a)(iii) of the Obscurity Code, and have him respond in two hours with an answer, or (2) Have the $400-an-hour lawyer try to figure out the answer from scratch. Who do you suppose is cheaper?

But specialization is the easy case. $1000-an-hour guys can be inexpensive for other reasons, too….

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Generally, when in-house lawyers transition from a law firm to a company, the amount they work decreases, with some exceptions. The particular number of hours depends upon the company and the industry, but it’s usually about 9-5 or 9-6, and increases as you gain seniority. (Unless you come from money and you’re “employed” in the family business, in which case you haven’t worked a day in your life, and never will.)

Often flexible arrangements are available, such as shifting working hours to 7-4 or 10-6, or working from home one or more days a week. These flex-time arrangements are particularly useful to lawyers who have many other obligations outside of work, such as learning new pole-dancing routines.

What about facetime — do in-house lawyers deal with facetime issues? By “facetime,” I mean simply the amount of time spent in the office, whether that time is used to do work or not. In-house lawyers certainly do encounter facetime issues — let’s face it, all lawyers do. (Get it…?)

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When you work as a litigator at a law firm, you know your cases. You know who said what to whom when. You know the recipients and dates of the critical emails. You know the precise terms of the contracts. You know what the opposing expert said at his deposition and how you’re going to attack him at trial.

In short, you know stuff.

When you move in-house — or, at a minimum, to certain in-house positions — those days may vanish. You may never know — really know — anything again.

The little cases may become barely a rumor: The employee was entitled to five weeks severance; he hired a lawyer and filed a lawsuit; we want authority to settle for ten weeks severance. You may kick the tires on the case for a few minutes, but that’s it. If you crave to know who said what to whom when, then you’re in the wrong job.

I feel a bit irresponsible having written those words, because they imply — indeed, they say — that folks in positions such as mine are doing their jobs without full knowledge. To many lawyers, that’s the ultimate sin. Yet in-house lawyers consistently say that a big piece of the transition from a firm to a corporation is learning to make decisions and take actions based on incomplete facts. (One of my colleagues recently said that he suffers from “in-house ADD.”)

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I recently received a cold call from a recruiter. Back in the day, when we were young and cocky Biglaw associates, we’d often just say “no thanks” and hang up on headhunters. For most of you, a call wondering if you’d like to explore a great opportunity in some department or other at another firm hasn’t occurred in years.

The economy just isn’t the same. For me, it’s been quite awhile since I received such a call. First of all, it’s fairly difficult to reach us; our numbers aren’t publicly available, thus making solicitations and cold calls something of an anomaly. Second, now that I’m in-house, the usual course is to seek out a recruiter, if necessary, rather than the other way around.

Well, my interest was piqued, and I chatted with her for about a half-hour. She works for a company with revenue much greater than I am used to, and a market cap well above my current employer’s. The job itself entails working on technology deals for a greater salary and overall compensation package. The company would also relocate me to a very palatable locale. Finally, the location is near many potential employers for my wife.

Seems like a great opportunity on its face. But, as one of my mentors has sagely stated, the devil you don’t know can be much worse than the devil you do know….

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Ed. note: This post is by Will Meyerhofer, a former Sullivan & Cromwell attorney turned psychotherapist. He holds degrees from Harvard, NYU Law, and The Hunter College School of Social Work, and he blogs at The People’s Therapist. His new book, Way Worse Than Being A Dentist, is available on Amazon, as is his previous book, Life is a Brief Opportunity for Joy (affiliate links).

At Barnes & Noble, where I once worked as a marketing exec, we bandied about the phrase “aspirational purchase” to portray a small, but profitable segment of our sales.

Aspirational purchase meant you bought the book not because you were going to read it, but because you aspired to read it. You might even convince yourself you were going to — but in all likelihood, it would serve as a pretentious coffee table tchotchke, an impressive (if un-cracked) spine on a decorative bookshelf, or a useful device to prop up a little kid’s butt so he could reach the cranberry sauce at Thanksgiving.

An aspirational purchase is intended to impress — you want to be seen buying it. It tends to be something conservative as well. And long. And difficult. “War and Peace” is the classic aspirational purchase, but you might also pick up something with a political message that makes you look wise and open-minded, like “The Satanic Verses” (which, for the record, I actually read.) (No, I’ve never plumbed War and Peace. However, I embrace the fact that plenty of you certainly have read it, and yes, loved it and desire for me to acknowledge you’ve read it and how much you loved it — to which I reply, in advance, how very nice for you.)

Law school is an aspirational purchase….

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