David Mowry

House Rules: Sometimes The Customer Isn’t Always Right

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I work in a highly competitive sales market. Underhanded deeds, though never perpetrated by my clients, are de rigeur in this field. There seems to be an ethical handbook for sales folks that has a theme of “ethics smethics –- close the deal at all costs.”

At quarter-end, or worse, year-end, this mantra can infect an attorney’s most rigid values. It is at these times when we must be on guard against the pressure to close. The pot at the end of the rainbow will look rather less shiny when tarnished by an ethics violation. None of this is news to most in-house folks.

With an economy on a slow crawl back to health, and internal pressures from all sides to cut costs and maximize revenue, shenanigans from sales people are rife in war story lore. But what of bad behavior by customers? I can tell you that after my years in-house, when I thought I’d already seen it all in private practice, I was quite wrong….

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House Rules: Fear Factor

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I had my first biopsy yesterday. Now, I have to wait ten days to hear whether my life will change dramatically, or whether worrying for a week and a half was a waste of time. This is one time I surely won’t mind “negative” feedback.

As I have contemplated this situation, it struck me that fear is an unnecessary component of our work lives from the time we apply to law school. Fear can drive us to obtain top grades, or to over-study for the bar exam, even though we’ve been specifically advised by BAR/BRI — as well as countless other attorneys who’ve been there and who we trust — that you only need to follow the program and you’ll pass. Fear can cause us to take jobs we don’t want because we just need a job, and fear can implicate itself into our daily work routine, so much that we cover our asses out of fear.

The fact is, as attorneys, we’re “maximizers” — folks who know fairly quickly, and usually correctly, that there may be a perfectly good solution to a question, but we can’t stop the obsessive, “What if?!”

Those what-ifs can metastasize into an ungodly blob of fear that resides in the pits of our stomachs. Especially at smaller in-house shops where counsel are expected to know everything all at once. That type of pressure is a breeding ground for all kinds of fear. The best practice when you’re faced with a task of knowing it all is to admit defeat at the outset. You cannot possibly know everything required of you. Your duty is to the company, and to do the best job of which you are capable. Beyond that, have the wisdom to seek assistance, internally or from outside counsel, and to know when to put your foot down and say “enough”….

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House Rules: Claiming Minority Status for a Leg Up

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The Dewey debacle is unfolding in real time on this and other sites. People’s lives are being shattered as a firm gets shuttered. It is not the first, and certainly not the last, time that a major law firm with thousands of employees will disappear into so much ether. I look back on my OCI days, and can rattle off several former NYC firms that have either merged into unrecognizability, or disappeared like Dewey is in the process of doing.

Likewise, not far from where I now sit, is the shell of Eastman Kodak — a company that built a large part of this town, and will likely become a shameful case study in the annals of business school textbooks. And yesterday, news went out that my own company is beginning another round of VRIF severance offers.

Regardless of whether you are sitting comfortably in-house, collecting pay from Biglaw, or wondering how in Hell you’re going to find a summer job, news like that mentioned above is disquieting. The main reason is that there isn’t anything that can be done. One day you’re employed, and then, well, you may not be. And there is really no place for schadenfreude in a “there but for the grace of God” economy. Careers can be dissolved as quickly as Dewey.

So, when you are forced to enter an applicant pool of thousands of other attorneys looking for a break in a seemingly unsolvable code of hiring, what can you do to set yourself apart? One possible strategy that has become a hot button issue in the past days is to claim minority status on your application. The obvious dilemma that you face as applicant number two thousand twenty-eight is whether to check such status if your lineage may or may not support the claim….

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House Rules: Geeking Out

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I have spent this past week at our international software licensing council meeting. I have met many of our licensing experts from around the country and around the globe. Unfortunately, the meeting always takes place on one of our campuses 15 minutes from my home. It would be great if we could move the meeting to Canada or Latin America some years, but for now, I am home. And I am watching the last of the late spring snow melt off of my daughter’s snowman.

While a lot of the terms and technology discussed at the meetings soared far above my head, it has been fascinating to meet with people who are integral to the creation and drafting of our software licenses. On its face, our business sells manufactured products. Inherent in those products, however, are thousands of hard and soft components necessary to make the products run.

Technology has always been a core piece of our business. I have discussed before numerous areas where we have been at the forefront of particular technology advancement. Some technology remained salient to our core business, and some fell by the wayside, only to be successfully utilized by other companies. But meeting with folks who actually create some of the ingredients in our product stew opened my eyes to a world that for me, has thus far existed under the radar….

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House Rules: Privileged Correspondence

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My work life revolves around email. Because of the size of our company, and the geographical locations of my clients, I spend a majority of my day on email. Like many of you, I have a disclaimer below my signature stating that the correspondence is attorney-client privileged, and so on. But is it really? Many times, the answer is no. I know enough to use the disclaimer in an abundance of caution, but my clients often have no idea whether what they send across email is indeed privileged.

Like Susan Moon, I am often referred to as “council.” That’s fine, it doesn’t really bother me, and is rather innocuous. Sometimes however, a client will take it upon themselves to write in bold, ATTORNEY-CLIENT PRIVILEGED, within the subject line. And that does bother me. Folks with just enough legal knowledge to be dangerous, are often just that — dangerous. Now, the email may indeed be seeking my advice, or concern a legal matter within that client’s region, but the client should not assume that to be the case. The misunderstanding of the privilege could lead to problems in the future, say, in a discovery period….

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House Rules: Data Security

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I had today’s column dealing with confidentiality provisions all set to go. However, given the Baylor Law School fiasco, I changed topics to another very contentious issue in business-to-business terms and conditions negotiations: data security. I will take some liberties with the factual scenario of the Baylor data release in order to make the issue more relevant to those of us in-house.

Let’s assume that instead of an employee of Baylor’s admissions office allegedly being responsible for the data release, it was an outside contractor who had been hired to perform data collection for Baylor. Let’s further assume that the contractor acted negligently in releasing the information. Finally, let’s assume that Baylor’s legal counsel vetted the Agreement and Statement of Work (“SOW”) between Baylor and the contractor, and included a data security provision. What should happen now that prospective students’ personal information, including LSAT scores and GPA, are in the public domain? I would begin by stanching the bleeding and assessing the damage….

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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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House Rules: Taking It On the Chin

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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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House Rules: The Devil You Don’t Know…

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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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House Rules: You’re in the House — Now, Stay There…

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(Note: the scenarios depicted herein may be vastly different from what you experience(d). They are based on my opinion alone, and fact patterns may differ drastically. The process that I advise is based on an amalgam of numerous colleagues’ experiences.)

There is nothing like the feeling of a strange voice on the phone telling you that they’d like to speak with you about a job for which you’ve applied. There is a rush that comes with finally receiving a response, a euphoric “you like me, you really, really like me…” Okay, so that’s a bit over the top, but after slogging through job hunt Hell for months with no response but the rare (these days) ding letter, it’s certainly a nice change to have someone want to speak with you.

So, after that initial shock wears off, get to the getting. Not only do you want this job, the person on the other end of the phone wants to hire you. Nobody enjoys seeing candidate after candidate — time is money, and unlike law firms where interviews can entail lavish lunches or dinners, in-house interviews are vastly different….

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