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….
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?
Suppose your firm has one incompetent partner, and our joint has the misfortune to be working with that person.
This guy consistently misses important issues. He sends us briefs that read (as did one draft I recently received): “In response to ALR’s motion to dismiss the OC, [plaintiff] added an allegation in the FAC that . . . .” We comment, over and over again (as we did recently), that briefs on our behalf must be written in English, not gibberish. Even if you’ve set up short forms, no reader sees “OC” and “FAC” and thinks “Original Complaint” and “First Amended Complaint.” Use words, not alphabet soup.
To no avail.
We suggest that the partner include on the litigation team a gifted writer (because we’re too nice to suggest that the partner include on the litigation team “a lawyer who’s worth a damn”). But nothing ever changes; the partner never hears us. Confronted with an avalanche of criticism and suggestions, no law firm partner has ever said to us, “Why, thank you. Now that you mention it, I realize that I am in fact inept. To better serve your legal needs, I’ll replace myself with a real lawyer.”
No, no, no. Instead, the partner continues to send us bad briefs, making the same mistakes over and over, but seemingly thinking that we may not care the next time around. It’s Einstein’s definition of insanity: “Doing the same thing over and over again and expecting different results.”
Up to that point, the fault is the partner’s. But then I personally make two mistakes….
Caveat: I did not write the following dialogue. It is from the “comments” section of one of my columns where I mentioned I’d be writing about HIPAA and GLBA. Unfortunately, I cannot attribute the comments to the persons who wrote them, as they are anonymous; however they are quite apropos of today’s subject:
1) “I wish vendors would get it into their heads that indemnity for being sued on a confidentiality basis doesn’t cut it for financial institutions and other customers/clients that have affirmative obligations without being sued in the event of a breach of confidentiality.”
2) “I wish financial institution customers would get it into their heads that the ‘customer information’ they’re obligated to protect is not the sort of thing they would ever disclose to the vast majority of their vendors, and stop using their ‘affirmative obligations’ as a tool to cram unnecessarily restrictive confidentiality terms down the throats of vendors.”
Perfect. Those two comments capture the schism between vendors and customers when dealing with private financial or personal confidential information….
Are your in-house working hours recently rivaling the billable hours you thought you had permanently discarded? Is your workload getting way too heavy — i.e., it’s really getting difficult to watch Glee on a timely basis? Do you find yourself working on pretty much the same form of contract over and over and over and over and over and over and over, ad infinitum?
It may be time to take a break and evaluate the problem of Low-Value Work.
What’s Low-Value Work? It’s work that has three main characteristics….
So, the Customer wants you to take on unlimited liability for breach of confidentiality, indemnify (and hold harmless) for any and all bad acts of your employees, and to carry a multi-million dollar insurance policy. What do you do?
First, begin by triaging these from simplest to more complicated. During a negotiation it can be helpful to appear to “give” as much as possible up front when you’re down to a few points. This way, when the final hot button items arise, you appear reasonable.
Insurance requirements are usually no-brainers, and as long as the amounts demanded are not grotesquely high, your Risk folks will approve the proposed language with very light editing, if any. Today, it is also not unusual for the Customer to demand to be named as a payee in the event of a loss; this is often fine, and usually not an issue. More practice pointers, after the jump….
I’ve learned a lot in my one week here, reading comments from the anonymous miserable Biglaw associates who take a break from their “.1 review” of correspondence (e-mail) and “.3 draft correspondence” (one-sentence letter) to comment on ATL.
I learned the term “s**t law.”
I am a s**t law lawyer. I represent clients, real people with real problems. They need legal services. They need arguments made on their behalf. They need advice. They need something other than an edited “pre-bill” in the mail once a month. I love s**t law, and I love talking to Biglaw lawyers about their desire to join s**t law. And while I always thought lawyers that were smart enough to leave the confines of “.2 receive and review correspondence” law to strike out on their own practiced real law, I realize now that the Biglaw lawyers that tell me they hate their jobs, hate that they can’t bring in clients because they can only pony up $10,000 for a retainer, and want to have their own practice, are apparently all lying.
So this advice is for those of you who haven’t been brainwashed into thinking that the practice of law is on the 46th floor in a small office trying to meet the important goal of having the divorced-three-times 53-year-old partner walk by at 8 p.m. and see you there in the thick of it, preparing irrelevant motions to compel discovery for cases that will never go to trial. This is for those that can’t wait to leave, those that realize that no one can name the best Biglaw commercial litigator in their town, but can name the best of various types of s**t law lawyers. This advice is for those that want to practice law, and not feed the billable hour factory that is Biglaw….
In Feeling the Kumbaya (Part I), we looked at how different the perspectives of business clients and in-house lawyers can be. Below are a few techniques that have helped me and my clients to feel the Kumbaya for each other (or at least have helped them to not think I’m only a total loser who has nothing better to do than change all of the commas in a list after a colon to semicolons).
Prioritize. I used to suspect that there was something about going in-house that made perfectly good law firm attorneys develop permanent amnesia when it came to good drafting. It was the strangest thing. Even my husband, a supposedly respectable corporate law firm attorney, after going in-house, suddenly started to let minor errors appear in his emails. My judgment of him was quick and deliberate. He would sometimes mistakenly use “there” instead of “their,” for God’s sakes! What lawyer does that?
So you’ve moved in-house or are planning to go in-house sometime. Be ready to think less like a lawyer.
Business clients think differently. I know, crazy, right? But, seriously, one of the biggest transitions from working as a transactional lawyer at a law firm and moving over to a company is learning to understand the business client’s perspective.
At a law firm, your client is typically another lawyer, whether it’s a senior associate, a partner, or an in-house lawyer. Lawyers hold court at the top of the hierarchy and are assumed valuable until proven otherwise. Legal work reigns supreme.
At a company, your boss will probably be an attorney but, as a transactional in-house attorney, you will most likely consider non-lawyers — people in other areas of the company — to be your clients. Plus, you’ve probably shifted from your law firm throne to mingling as one of the middle-management masses. At a company, mention “legal work” and “supreme” in the same sentence and you’ll get laughed off your middle-management office chair. On the contrary, you may sometimes need to remind business people that you exist (this can be kind of awkward, really) and that you can, you know, maybe provide value once in a while….
And be careful about what you place in the trash. Law firms have paper shredders for a reason; use them. Consider this your practice pointer for the day.
Earlier this month, an ATL reader sent us a collection of documents relating to Sullivan & Cromwell’s on-campus interviewing program at the University of Michigan Law School. For the record, our tipster didn’t have to go dumpster diving for this find. The documents were contained in a black binder that was conveniently placed on top of an outdoor recycling bin, where it caught our reader’s eye. (As we all know from California v. Greenwood, you have no reasonable expectation of privacy in stuff you leave in the trash.)
So, what was in these documents? The contents will be of interest to partners and associates at other firms, as well as law students going through the OCI process right now….
The holiday season is upon us, and yet again, you have no idea what to get for the fickle lawyer in your life. We’re here to help. Even if your bonus check hasn’t arrived yet, any one of the gifts we’ve highlighted here could be a worthy substitute until your employer decides to make it rain.
We’ve got an eclectic selection for you to choose from, so settle in by that stack of documents yet to be reviewed and dig in…
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past six years. You can reach them by email: firstname.lastname@example.org.
We currently have a very exciting and rare type of in-house opening in China at one of the world’s leading internet and social media companies. Our client is looking for an IP Transactional / TMT / Licensing attorney with 2 to 6 years experience. The new hire will be based in Shenzhen or Shanghai. Mandarin is not required (deal documentation will be in English) but is preferred. A solid reason to be in China and a commitment to that market is required of course. This new hire will likely be US qualified (but could also be qualified in UK or other jurisdictions) and with experience and training at a top law firm’s IP transactional / TMT practice and could be currently at a law firm or in-house. Qualified candidates currently Asia based, Europe based or US based will be considered. The new hire’s supervisors in this technology transactions in-house team are very well regarded US trained IP transactional lawyers, with substantial experience at Silicon Valley firms. The culture and atmosphere in this in-house group and the company in general is entrepreneurial, team oriented, and the work is cutting edge, even for a cutting edge industry. The upside of being in an important strategic in-house position in this fast growing and world leading internet company is of the “sky is the limit” variety. Its a very exciting place to be in China for a rising IP transactional lawyer in our opinion, for many reasons beyond the basic info we can share here in this ad / post. This is a special A+ opportunity.
If your firm is in ‘go’ mode when it comes to recruiting lateral partners with loyal clients, then take this quiz to see how well you measure up. Keep track of your ‘yes’ and ‘no’ responses.
1. Does your firm have a clearly defined strategy of practice groups that are priorities of growth for your office? Nothing gets done by random chance, but with a clear vision for the future. Identify the top practice areas for which you wish to add lateral partners. Seek input from practice group leaders and get specifics on needs, outcomes, and ideal target profiles.
2. In addition to clarifying your firm’s growth strategy, are you still open to the hire of a partner outside of your plan? I’ve made several placements that fit this category. The partner’s practice was not within the strategic growth plan of my client, but once the two parties started talking with each other, we all saw how it could indeed be a seamless fit. Be open to “Opportunistic Hires.” You never know where your next producing partner might come from, so you have to be open to it. I will be the first to admit that there is a quirky element of randomness in recruiting.
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