Contracts

House Rules: Leverage Abuse

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By the time I made the switch to in-house work, I was burned out on litigating. Some of my friends and colleagues live for the fight, or as Wallerstein recently said, “have a fire in their belly.” In my case, I just couldn’t draft yet another motion to compel, interrogatory, etc. I had been doing it so long that it had become mundane. Appearing in court was always a kick, and depositions could be entertaining, but the day to day fun had dissipated.

Due to the economy and firm billing practices, I found myself at times resorting to noting “.1s” on my time sheets. So, when my bio says I don’t miss litigation, I really don’t. And what I don’t miss most of all is the bluster of the powerful down to the less leveraged.

In litigation, bluster can begin as soon as the adversary reads your bio and decides that you are not quite a peer. This inappropriate elitism only worsens when one side gains the upper hand for whatever reason; the bluster ends, and the bludgeoning begins….

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Moonlighting: Try This One Out — ‘My Bad’

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Why can’t people admit it when they’ve made mistakes? I think it’s because they focus on the potential negative consequences and not enough on the benefits that admitting mistakes can have on their careers. It’s irritating when people can’t admit that they’re wrong in any situation, but it seems most annoying when it happens in the work environment.

Now, I’m not talking about when there’s an actual disagreement or when you genuinely don’t realize that you’ve made a mistake. Or when you’ve intentionally done something to screw someone else over. I’m referring to the situation where you know you’ve messed up and you won’t ‘fess up.

Instead, this is what happens…

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Moonlighting: What’s the Big Deal? (Part II)

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In the last installment of Moonlighting, we examined the importance of understanding the big picture at work. This week, we’ll consider one method of finding out more about the big picture: asking questions. Not the dumb ones. The good ones. So what are some good questions that can help us to see the bigger picture?

I solicited input from several general counsels, assistant GCs, etc., in different industries and here’s what they came up with. I know, I was surprised they got back to me too. I don’t know whether it had anything to do with the teeny white lie I told them — that they would be compensated for their answers with untold riches and fame — it’s a mystery. But here is what they said…

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Be My Contractually Obligated Valentine

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Today is Valentine’s Day. That means different things to different people:

* For a married man, it’s a day when you can only get in trouble for underperformance.
* For a single woman over 30, it’s a day to make you feel like you are going to die alone.
* For a single man with money, it’s a day to shoot fish in a barrel.
* For a young woman, it’s a day of presents.
* For Hallmark, florists, and chocolatiers, it’s a day of straight cash, homey.

For lawyers? Well, it’s a day to enter into a non-binding contractual agreement for affection and fellatio, silly….

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Morning Docket: 02.14.12

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Fashion: brought to you by lawyers.

* A bill to legalize gay marriage in New Jersey has passed in the state Senate. If this passes in the state Assembly, will Chris Christie put the kibosh on it? Someone better make him a faaabulous offer he can’t refuse. [Wall Street Journal]

* They might not be the most stylish bunch, but without lawyers (and the contracts they write), events like New York Fashion Week wouldn’t happen. Models, please keep that in mind while you do your little turn on the catwalk. [Reuters]

* Is a mandatory life sentence a cruel and unusual punishment for the Underwear Bomber? Because you’ve got to remember, it’s not like the guy actually killed 300 people. He only almost killed 300 people. [Detroit Free Press]

* Hey 0Ls, here’s some advice on how to “beat” the wait-list blues that’s reminiscent of bad dating advice: don’t call too soon; it’ll make it look like you’re “desperate and hasty.” [Law Admissions Lowdown / U.S. News]

* Two Occupy Wall Street protesters are suing the police officer who pepper-sprayed them. Here’s a video of what happened. Those poor little hipsters, they didn’t even see it coming. [New York Daily News]

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Moonlighting: What’s the Big Deal?

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Lawyers are great at thinking small — small picture, that is. We’re awesome at details, however painstakingly minor. We sport the “grammar police” badge proudly, even though we know that it’s the dorkiest one out there (wait, except for the “I memorized all of the two-letter words in Scrabble” badge — that one’s slightly dorkier). We find nit-picky, meaningless, hypothetical debates to be “intellectually stimulating,” while the rest of the world sees them as a complete and utter waste of time. And it’s all good. Details are essential to the practice of law. But so is seeing the big picture.

A law firm associate friend once represented a bank on a loan in which the borrower later ended up missing a payment date. Upon learning of the missed payment, he promptly drafted a default notice. When he presented the default notice to the law firm partner, the partner’s reaction was, “Whoa, Nelly… hold on there — no way are we sending any default notice.”

The associate was thinking small picture — how dare the borrower miss a payment to his client! In full gunner mode, he proceeded to take steps to ensure that the bank was paid the monies due (and, by the way, now at a default interest rate — haha!). He was only trying to zealously represent his client, right? Right? The partner, on the other hand, was thinking big picture….

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Morning Docket: 01.17.12

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This ship be sinking.

* How many one percenters do you think are members of the 11%? According to this poll, Congressional approval ratings have hit an all-time low. Looks like it’s time to occupy Congress. [CNN]

* Wikipedia is planning a site-wide blackout this Wednesday to protest the Stop Online Piracy Act. At least they’re giving some advance notice. If you’ve got papers to write, hurry up and finish. [Businessweek]

* Racial profiling ain’t easy. Sheriff Joe Arpaio still wants to detain people based on the suspicion that they might be here illegally, so he’s appealing Judge Snow’s ruling. [Washington Post]

* The part you won’t see in the inevitable movie starring Robert Pattinson: victims of Italy’s Titanic reenactment will probably be unable to sue for damages in U.S. courts. [Reuters]

* Here’s the umpteenth rehashing of the “are law schools cooking their employment statistics?” argument. Better question: without minimum standards for employment, does it matter? [NPR]

* Jesse Dimmick — the kidnapper who sued his victims for breach of contract — won’t get his day in court. The “most ridiculous lawsuit of 2011″ has been dismissed. [Topeka Capital-Journal]

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House Rules: Risk / Reward

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I’m writing this wearing my new bifocals. They take some getting used to after years of regular glasses and contacts. But, after watching me examine small print like I was Mr. Magoo, my wife convinced me that it was time to take a symbolic plunge toward middle age. I admit to no small amount of trepidation at the prospect of wearing “old folks” glasses. But the risk of not seeing properly finally outweighed my vanity, and a change had to be made.

And so it goes with some legal decisions in-house. When faced with a dilemma, you weigh the risks versus rewards, and pull the trigger on what you hope is the right decision.

In a company the size of mine, people have performed risk/reward analyses on legal issues for years, down to the proper placement of semicolons in contract clauses. To borrow from the iPhone ads, yep, there’s a committee for that. We have Lean Six Sigma belts of all colors who are subject matter experts in every facet of our business. There are folks with many years of experience, who own any number of policies from which I am to draw when making decisions. It sounds on paper like filling in the blanks will get you where you need to go, but that is far from reality.

In a perfect world, for my job anyway, a Customer would receive a proposed agreement, see the inherent fairness in the document (and the work that went into carefully crafting all those clauses and semicolons), and sign on the dotted line. But sadly, life isn’t perfect, and I have yet to receive a contract back without so much as a redline….

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How to Get Fired From Your Job as General Counsel to an NFL Team

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He gave His only begotten Son, that whoever believes in Him shall not perish, but have eternal life.

It’s playoff time in the National Football League. Fun times. This year’s playoffs are more intense than usual, since Tim Tebow is probably the only conservative who can challenge Obama this fall.

I’m a Tim Tebow convert. Sure, if Tim Tebow were black, he’d be a back-up tight end, but that’s not a reason to hate on Tebow. He wins football games. What more do you want from him? There aren’t a lot of elite quarterbacks in the NFL. Tebow’s not elite, but he wins games. Wouldn’t you rather roll the dice with the Tebow show than going with the practiced mediocrity of Kevin Kolb, or Colt McCoy, or David Garrard? I honestly think that Tebow gets a lot of hate because so many people passed on Tebow to go with guys like that.

Jacksonville did. Tebow is a god in Florida (I mean, Tebow threw for 316 prophetic yards last night, so I do not rule out the possibility that he’s a God everywhere), and he was sitting there in the draft when Jacksonville was starting David Garrard and they passed on him. Now, the Jacksonville Jaguars have a new owner. Coincidence?

In fairness, the Jaguars seem to be a terribly run organization. It appears that even the Jags’ lawyers can’t get it together. The new owner reportedly removed the team’s general counsel for something that looks like an unforgivable error for a lawyer to make….

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House Rules: Termination Clauses, Remedies, and Other Things to Argue About Before Christmas

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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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