In-House Counsel

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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I have two memos sitting unread in my inbox.

One of the memos is great; the other one is terrible. I know which is which. And, as I said, I haven’t yet read either one of them.

Isn’t trust terribly unfair?

Think about the many ways that establishing trust permeates a business relationship. Once the superior (whether that be partner, client, boss, or whomever) trusts the underling, the underling can do no wrong. And once the superior mistrusts the underling, the underling can do no right.

Which of the two unread memos in my inbox is great? The one from the guy I trust. All of his earlier memos have been great. They’re crisp, incisive, intelligent, and lucid; the one that I haven’t yet read is surely a thing of beauty, too. Which memo stinks? The one from the guy I don’t trust. All of his earlier memos have left me gripping my head in agony, trying to figure out what in God’s name this clown was trying to communicate and why anyone would think it was worth trying to communicate that drivel.

Trust permeates everything; it’s terribly unfair. Trust infuses more than just the memos I haven’t yet read. Trust permeates silence, too. How can trust permeate silence?

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This is the second part of a series on getting yourself in the door to an in-house position. If it’s not up your alley, read no further. Based on the feedback I received from last week’s entry, this is helpful to some folks out there. Don’t worry, my tell-all book is in the works, and when I’m ready to retire, I’ll regale you with stories of love triangles and hexagons that will make your head spin. Until then, let’s work on getting you that gig in-house.

It is presumed that you worked hard on your resumes and cover letters in law school, vetted them through the career office, and had at least two or more folks review them before sending them out for OCI and beyond. If you’ve been practicing for a while, and are now looking to jump in-house, you’ve likely dusted off your resume and edited it to include the substantive work you’ve done, your many court appearances, and your list of mega deals that you’ve brought to completion. Or not. The reality may be that you don’t have all that much “sexy” work to list on your updated resume.

This may not be a problem…

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I won’t say whether I actually heard these conversations or I just dreamt them.

First: The head of the business unit confronted with a new litigation matter:

“This is an outrage! How could they have accused us of this? We want to fight! Fight! Fight!”

“The defense costs will be charged to your business unit, which will reduce your bonus pool.”

“Settle!”

Second: One partner at a law firm — who wants to visit a client, make a presentation, and take the client to dinner — to a second partner — who is the relationship lawyer for the client:

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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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Okay, I confess: I made the headline intentionally provocative. You shouldn’t lie at all, and you should absolutely forbid witnesses from lying under oath. (If we, the lawyers, don’t obey the law, who will?)

I’m thinking today about a person who is not under oath and will be sorely tempted to tell an obvious lie. Don’t do that yourself, and advise others that it’s not great idea, too.

When are people tempted to tell obvious lies?

In the corporate context, a quarterly earnings announcement might boldly proclaim that the company earned $1 per share this quarter. The Street expected only 90 cents, so this appears to be great news. But there’s something else tucked into the earnings report that disappoints the analysts: revenue declined; margins compressed; organic revenue growth stalled; whatever. Thus, despite the happy headline, the stock price drops two bucks on the day of the earnings announcement.

The next week, you, or the head of your department, or the head of a business unit, or whoever, has to brief an internal audience about the quarterly results. The speaker will be sorely tempted to tell an obvious lie: He’ll pull excerpts from the slide deck used for the earnings announcement, emphasize that the company beat the Street’s consensus estimate by ten cents a share, and tell the gang that we had a great quarter.

Meanwhile, everyone in the room is thinking: “If we had such a great quarter, why did the stock price crater on the news? Do you think I’m an idiot? Why are you lying to me, and do you lie often?”

I’m no expert in corporate communications, but it strikes me that it’s a bad idea to tell obvious lies. How do you avoid telling obvious lies?

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Once you’ve decided — either on your own, or with the help of your law firm review — to make the move in-house, what do you do next? The first thing to decide upon is a method to your madness. Disclaimer: If you’ve been engaged in a search for some time, or you are happily ensconced in a position that you love (which is impressive!), my next few columns are not for you. They will be lacking in gossip, or inside baseball stories of life in-house. Because the majority of mail I receive is in regard to the jump to in-house life, I have decided to devote a few columns to the nuts and bolts of making the leap.

There are so many companies of all sizes that looking for an in-house job can make looking for a law firm job seem like child’s play. There are public companies, privately-held entities, government contractors, non-profits, and so on. Start your search by considering company specialty — what the company does needs to match something in your career background. You wouldn’t seek a transactional securities position without any knowledge of the securities laws. It also helps to have at least touched upon the area of law in your private practice. However, it may not preclude you from a position if you’ve not written the latest securities treatise. If the company is a small entity with zero to five current counsel, your general legal knowledge will get you noticed far more than knowledge in a discrete area of law.

Companies of all sizes can be funny animals when looking for legal advisors. The most sought after trait is sound business judgment — something that is rarely discernible in the interview process. It may surprise you, but a less valued item, at least in the business world, is the rank of your law school according to the U.S. News survey….

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Why do so many people think that you must be a blowhard to be an effective litigator?

I’ve recently heard several tales of business folks (or in-house lawyers) worrying that outside counsel is not aggressive enough. What prompts the concern is the lawyer’s performance during a conference call or at a meeting: The lawyer is civilized. The lawyer speaks quietly, asks probing questions, gives intelligent advice, and appears to be an effective advocate.

After the meeting, one of the participants says: “Are you sure we should use that guy? He doesn’t seem very aggressive.”

Remarkably (at least to me), I’ve heard the same thing at law firms. I’ve heard transactional lawyers wonder about litigators who are calm and intelligent at the lunch table: “He’s such a nice guy. I’m not sure I’d trust him in court.”

What’s my reaction? On the one hand, we can’t ignore perceptions. If a lawyer is so low-key that he doesn’t inspire confidence, then that is a legitimate concern. If I don’t trust the lawyer who’ll represent me at trial to defend me during a vigorous cross-examination, then that’s a real issue; we shouldn’t hire that lawyer. Confidence matters.

On the other hand, if the concern is simply that the litigator is not a blowhard — the lawyer speaks quietly and intelligently during business meetings, where there’s no need for bluster — then I have a very different reaction. In fact, I have three reactions:

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Last week there appeared a column on this site that denigrated clerkships in the middle of the country. I could not decide if the author was attempting satire, but it seemed to be a straight piece. I would like to offer a counterpoint.

I began my career at Biglaw in New York City. The firm began to have troubles, and I saw the writing on the wall as my class dwindled from 40 to 30 to 20. I then heard from a family friend that a federal judge in Oklahoma City was looking for a clerk to assist with some topics with which I was familiar. I scored an interview, we hit it off, and I moved my wife and new baby to OKC for a year.

Full disclosure: I went to 15 schools before graduating high school, and OKC was the place I called “home.” Many decisions about this move were simple: it allowed us to live near family for a year, which was great support for the baby; my wife was working on her dissertation, so she had time to write; and I had a circle of friends from high school with whom I could reconnect.

Further simplifying the issue was that the government payscale is based solely on experience. How much did I earn, as a law firm associate turned law clerk?

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Do law firms set performance objectives for their lawyers?

I worked at two different law firms over the course of 25 years, and I remember only one meeting where anyone sat down and talked with me about setting performance objectives. We set the objectives; no one ever followed up to see whether I’d achieved them; and the rest was silence.

Perhaps some firms regularly set performance objectives for lawyers, but that was nothing I’d experienced before I moved in-house.

Many corporate law departments set performance objectives for in-house lawyers, and many people do this poorly. “Setting objectives” is viewed as an annual chore inflicted on the supervisor that he cannot ignore; the computer system keeps nagging him about it and ratting him out to others up the ranks. The supervisor finally relents and types a few objectives into the system: “Meet budget. Work closely with business units. Negotiate alternative fee agreements.”

Now that’s out of your hair, and no one will bother you until next year.

Or, if you preferred, you could do it right . . .

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