In-House Counsel

Well, last Friday was interesting. When I decided to close the comments for last week’s installment of Moonlighting, Lat responded, “I’m glad at least someone is willing to try deactivation.” As expected, undeterred from the fact that they couldn’t comment directly on my post, the usual group of ATL commenters uniformly hijacked Kashmir Hill’s “revenge porn” post which followed mine on ATL to provide me with their usual thoughtful and highly encouraging feedback.

Later, an anonymous 2L tweeted as follows: And @susanmoon has the dubious distinction of being the first @atlblog writer to close off comments. When I joked to the 2L that my feelings get hurt every week, the 2L (taking me seriously, I presume) told me that instead of hiding, I should “rise above it” because even a SCOTUS justice would get flamed on ATL. This invited Brian Tannebaum (an ATL small-firm columnist) and some others to rush to my defense. What ensued was a flurry of debate on Twitter — infused with an abundance of insults — mainly between Brian and the 2L. I’m actually not quite sure why Brian got so involved, as I’m not even sure he likes me (that’s the real reason I cry every week). I think he just likes to pick on poor souls every once in a while (read: several times a day) for his own sadistic pleasure.

In any case, in addition to the entertainment value that the Brian v. 2L debates offered on Twitterverse Legal last weekend, there were definitely some interesting points made on both sides about the value of anonymous feedback….

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Years ago, I handled a pro bono case for a client unable to afford legal services. (I actually handled a fair number of pro bono cases, but I’m choosing to describe just one here.) The client was a very nice guy, and he desperately needed legal services. But he had no idea how to use a lawyer cost-effectively and, because he wasn’t paying for my services, he had no incentive to restrain himself. The guy called incessantly, asked endless questions, and was always trying to schedule meetings with me. I mentioned the situation to one of my senior colleagues, and the colleague’s reaction was immediate: “What that client needs is a bill.”

During the decades when I served as outside counsel representing clients, I noticed that some of my clients permitted me to do their work efficiently and others affirmatively obstructed that effort. Now that I’m an in-house lawyer, I’m thinking about the other side of that coin: What should I, in my role as client, do to permit outside counsel to represent me efficiently?

double red triangle arrows Continue reading “Inside Straight: Inflating Your Own Outside Legal Spend”

Admittedly, I take on some large issues in this column. But this is neither a treatise on contract law, nor the forum to attempt one. I am simply attempting to give some pointers for negotiating commercial contracts. I do very much appreciate the emails that I receive that suggest where I missed some salient information, or that offer critiques to some of my strategies. I’ve even used some of them and credited the authors, to the extent they’d allow. Funny thing about this site, most people don’t want to be identified. It’s almost end of year, so here goes:

Let’s say you’re in the heat of a commercial lease negotiation and the customer says to you: “What are these payments in the event of default? Why should I be penalized if your product doesn’t work as it should? Are you telling me that I have no remedies? Don’t you stand behind your products?”

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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).

It’s hard to generate sympathy for lawyers – especially when the group of people you’re milking for sympathy is other lawyers.

At first glance, that seems counter-intuitive. I’m writing about your fellow attorneys, after all, and they’re in miserable straits. I feel sorry for them. I want to help. But then, I’m a bleeding heart psychotherapist.

I even felt sorry for them back when I was a lawyer, too – incontrovertible proof I was never “cut out” for the profession…

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A story I often tell is about the first time I took a deposition. I got there early, and I thought that the most important thing was to control the witness. I didn’t realize the first time around that the way you control somebody is not by intimidating them. But I adjusted the chair that I was sitting on so that I’d be really tall, and could look down imposingly on the witness. But I raised it so high that as soon as I sat down, I toppled over and fell backward.

Amy Schulman, executive vice president and general counsel of Pfizer, in a New York Times interview about her leadership style.

(Additional excerpts and discussion, after the jump.)

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How do you build a practice for a law firm?

Everyone has a theory; I’ll provide a case study.

In 1997, Congress was about to pass a law that would have been great for America, but horrific for business at the law firm at which I then worked. The firm thus (intelligently) created several committees to try to create new practices that could keep lawyers busy if the promised bill became law. I was asked to chair the “drug and device product liability business development committee.”

At the time, my firm did essentially no pharmaceutical product liability work. I’d helped to defend a set of medical device cases, which was about as close as anyone had come to actual experience in the pharmaceutical products field, so I was the natural choice to lead this effort. When given that assignment, what do you do? How do you build a practice essentially from scratch?

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An in-house lawyer (let’s call her Athena) was recently offended by a statement made by a law firm attorney (let’s call him Hercules). Athena shared a conversation in which Hercules had told her that his firm would never stoop so low as to represent any companies in her industry (let’s say it’s the tobacco industry).

When Athena informed Hercules that, well, his firm actually did represent her company, he told her that she must be mistaken. She responded by bringing up a picture on her mobile phone of an attorney at his firm who was working on one of her tobacco cases, and Hercules replied, “I’ve never seen her before. She can’t be very important.” With a high and (al)mighty look, Hercules then went off to clear his head by having a few smokes.

As Athena complained about this incident, she was so upset that she had trouble blowing her usually perfectly-circular cigarette rings into the air. My initial reaction (knowing how Hercules can be a jovial kind of deity character) was that Hercules had been kidding (and probably had a bit too much ambrosia, as well), and that Athena should lighten up a bit and get a sense of humor, for gods’ sakes.

A couple of years ago, my thoughts about the matter would have ended there, and I would have forgotten the incident completely after returning to my humble, mortal abode. This time, I had some other takeaways….

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People have occasionally asked me for advice about interview techniques.

My suggestion has always been short and pointed: “Say something smart. Say something funny. Ask a good question. And get the heck out of there.”

What about on the other side of the table? I really don’t trust interviews. I don’t believe that it’s possible to tell during a half hour or an hour whether someone is truly competent or a great bluffer. I never thought I learned much from forcing people to talk about their résumés. So when I was interviewing candidates for jobs at a big law firm, I’d try to identify something that the applicant claimed to know — a practice area, a procedural issue, a case the person had defended — and engage the person on that subject. I figured that I was thus showing interest in something about the applicant while giving myself a chance to assess whether the applicant was sentient.

But now I work at a place that sells human resources consulting as part of its business. That requires folks to think a little harder about interviewing techniques. After all, if you’re offering professional advice about conducting interviews, you ought to interview your own job applicants effectively. I’ve recently been educated on this subject and, as a dutiful blogger, I’ll share with you what I’ve learned. What is behavioral interviewing, and why is it better than traditional interview techniques?

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I wrote about these contractual issues the week before Thanksgiving. I received so many emails that I thought it best to flesh these topics out a bit more. Also, some of these headings are from the anonymous “comments” section on this site, so I can’t attribute them (and I’ve also edited them for language).

1) “Real life example: Company A hired to refurbish shipping vessel owned by Company B. Contract obligated Company B to indemnify Company A fully, worded broadly enough and specifically enough to require indemnification for Company A’s own fault. Company A sets the boat on fire through clearly negligent actions and then tries to put it out with a garden hose. Fifth Circuit Court of Appeals tells Company B that yes, Company A was at fault; yes, you are out quite a bit for the value of the boat and the lost income, but you must eat it as you have to indemnify Company A for your own claim.”

Why on Earth someone would agree to indemnify a Customer for their own negligence is beyond me. I have been through this scenario many times, and I always inquire as to how I am expected to indemnify my Customer for its own negligence. In the B2B arena, indemnity should be limited (if possible) to third party claims against the potential indemnitee, at which point the indemnitor would take on the payment.

This raises another point: even if I indemnify you, who is going to defend you?

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While practically every attorney is familiar with the market rate for Biglaw salaries, not as much is known about salaries for in-house lawyers. Unlike Biglaw’s lockstep salaries, in-house salaries vary widely depending on a broad range of factors such as industry, size of legal department, years of experience, etc. Additionally, since in-house salaries are often negotiable, in-house attorneys tend to avoid discussing their individualized pay with one another.

ALM Legal Intelligence has helped to demystify in-house salaries through its 2011 Law Department Compensation Benchmarking Survey. This comprehensive survey analyzed compensation data from 4,951 lawyers employed at 225 corporate law departments. The 2011 median salaries for various management and non-management law department positions are reported in the tables after the jump, along with their changes from 2010….

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