In-House Counsel

Complete honesty is such a dangerous thing.

I’m going to give it a shot.

I’m posing three questions to myself today. First, why might a lawyer at a law firm choose to write articles? Second, what topics should lawyers write about, and where should they publish the articles? Finally, why might an in-house lawyer choose to write?

The honest truth is that outside lawyers choose to write for many, varied reasons. In-house lawyers might also choose to write for many reasons, but those reasons are different and fewer. Across the board, authors’ motivations for writing will be mixed.

Do I have a right to speak on the subject of publications? My credentials, in a nutshell, are these: Three books; twelve law review articles; two book chapters; about 70 other, shorter articles (in places ranging from The Wall Street Journal and the Chicago Tribune to Pharmaceutical Executive and Litigation); and maybe 600 blog posts (roughly 500 at Drug and Device Law and north of 100 here). Call me nuts (and I may well be), but I’ve spent a professional lifetime doing a ton of “recreational” legal writing.

Why did I do it? Should you?

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Last week, we looked at why lawyers need soft skills and noted that there’s a general lack of this kind of training for them. Today, we’ll consider some strategies for learning to play nice in the legal sandbox.

As mentioned last week, there are so many different types of soft skills — communication, leadership, management, presentation skills, etc. What does a socially-awkward lawyer work on first? Well, it depends. (Fyi, “it depends” is a great lawyerly response for virtually every situation where you don’t know the answer.)

As with hard skills, the soft skills you should focus on depends on your pre-existing responsibilities and the skills you already have. For the purposes of this post, let’s assume you have none.

Below is a very basic outline of some required soft skills for particular levels of attorney seniority. I’ve listed a few skills listed for each level and a further description of one skill per level, to prevent this post from becoming a mind-numbing two-hour read (as opposed to a mind-numbing five-minute read). It’s a bit of a laundry list, but the idea is to provide a big-picture overview….

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Here’s the sad rule: If it comes across your desk, then you’re responsible for it.

Period.

That’s the rule at law firms. It was my rule when I worked at a firm, and it’s the rule that I now impose on outside lawyers. Thus, when I was a partner, I did not tolerate this excuse after an associate sent me a crappy draft brief, supposedly ready to be sent to a client for review: “I know the draft is not very good. But I didn’t write it. Local counsel did.”

Yeah? So what am I supposed to do with the crappy draft? Send it to the client with a cover note explaining that we propose to file the attached terrible brief, and we should be excused from blame because local counsel wrote it? I don’t think so. If a brief crosses my desk, then it’s my brief. I’m responsible for it. It has to be good.

So, too, with you: When the brief hit your desk, you became responsible for it. The draft brief that you send to me is your best possible work product; there are no excuses.

The same thing is true in-house . . .

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I very much appreciate reader feedback on my columns, whether received via email or in the comments. Here’s one of the better critiques from the comments section last week, from “Guesty”:

“David — you need to decide what you’re trying to accomplish with this column rather than just describing negotiating a form contract with a customer in vague terms. Every corporate attorney negotiates contracts; you aren’t telling us anything interesting when you say you consider the risks to your client in each provision. For example, if you explained the degree of autonomy you have in negotiating (and why), that might be interesting (you might also describe your level within the legal group and who you’re answering to when you make a legal decision). Are you just playing CYA games within your company or do you really need the input of lots of different specialists? You imply it’s all a BS CYA game to make auditing happy — if that’s true, it’s kind of a depressing way to make a living.”

There are some worthwhile points made by this commenter. Let me try and address some of them….

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Alex Macgillivray

Bad day for the Internet…. Having been there, I can imagine the dissension @Google to search being warped this way.

– Alexander Macgillivray, general counsel of Twitter, commenting via Twitter about Google’s recent plan to alter search results based on users’ Google+ networks. Macgillivray used to be in-house counsel at Google. Corporate Counsel analyzed his comments yesterday.

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 some point you have to get out of here. The question is when – and whither.

A vacation might help, if you could achieve the impossible and take one. My client pulled off a week – seven whole days! – at a Caribbean resort. She flew off to paradise, only to return feeling like a condemned prisoner.

“It made things worse,” she lamented. “Now I remember the outside world.”

Sometimes it’s better to live without that distraction….

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If you’re a bride-to-be — and let’s face it, even if you’re not — you’ve probably seen at least a few episodes of TLC’s Say Yes to the Dress. The show features the goings-on at Kleinfeld, one of the premier bridal salons in New York City, where staff members assist brides in their quest to find the perfect wedding dress.

Imagine our surprise when we tuned in to watch the show, and caught a glimpse of a beautiful lawyer searching for a wedding gown. But this was not just any lawyer — this lawyer used to have an action-packed career as a stunt woman. These days, though, she gets all of her action inside of a courtroom.

So who is this stunt woman turned lawyer? Why did she decide to make such a drastic career change? And how did she snag her husband, the general counsel to a Fortune 500 company?

All of this and more, including some glamorous wedding photos, after the jump….

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Everyone talks about how soft skills are important for success. Soft skills, also referred to as people skills, EQ, et cetera, are key to influence, persuasion, karaoke smack-talk, and many other aspects of being a savvy lawyer and advocate. They’re essential for both in-house and law firm attorneys. But what are soft skills exactly?

We often know when soft skills are at play, such as when an employee is confronted by a group of hostile workers and is able to calm them down before they go too far and, God forbid, blog their grievances. Figuring out a definition, though, is kind of difficult. I decided to try asking my social media circles: “What’s your definition of soft skills?” I received many informative responses such as: “the ones I don’t have,” “skills our parents never taught us,” “hmm, that’s a hard one,” and “are we keeping this discussion R-rated and under?” Thanks people, very helpful.

Soft skills are difficult to define, in part because it’s easier to talk about them in relation to what they aren’t — hard skills. Hard skills are the technical information and expertise we need to do our job. Soft skills are basically everything else. Hard skills are quantifiable and more readily measurable. State bars test hard skills. Soft skills are behavioral and more difficult to quantify. Dive bars test soft skills. They involve a spectrum of behaviors, including verbal and written communication, effective management, overall leadership, and how to get the IT guy to fix your computer first. In sum, they’re the behaviors we engage in that impact our overall effectiveness on the job….

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Before you make the jump to go in-house, remember that each in-house opportunity is unique and will present different advantages and challenges. As a former in-house attorney who worked for a well-respected investment management company for almost six years, Lateral Link Director Gloria Cannon believes there are several things you should consider in evaluating each in-house opportunity.

They revolve around three primary topics: job responsibilities/duties, compensation, and lifestyle….

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In 2009, Professor Martin H. Redish of Northwestern Law School published a book arguing that class actions are in large part unconstitutional: Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit (Stanford Univ. Press 2009). Where is the practicing bar?

I understand that nobody reads law review articles or books published by an academic press. And I wouldn’t condemn any practicing lawyer to reading any issue of a law review from cover to cover. But I don’t think it’s asking too much to insist that lawyers remain gently abreast of the academic literature in their field and deploy new ideas aggressively when scholars propose them. Redish’s book shows why in-house counsel should demand more of their outside lawyers.

This post is a two-fer: I’m going both substantive — by summarizing Redish’s argument about why many class actions are unconstitutional — and pragmatic — by criticizing law firms that ignore ideas springing up in the academy that should be used in litigation. (For me, drafting that two-fer is an unusual trick. As regular readers know, it’s typically hard to find even a single thought tucked into one of my columns.)

What does Redish say about class actions, and how have most law firms been derelict?

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