In-house

You really don’t want to be sued in a corrupt, backwater swamp.

No, no! I don’t mean Louisiana! I mean a truly corrupt backwater swamp like, say, Sudan.

(I pick Sudan because it’s subject to sanctions by most first-world countries, so I don’t have to worry about someday being dragged before a Sudanese judge who isn’t tickled by my having called his country a “corrupt, backwater swamp.” I may well pay a price for having tarred Louisiana with that label, but my opening two sentences just wouldn’t have been funny if I hadn’t named a specific state. I’ll have to hope that judges in Louisiana have a sense of humor.)

You get sued in Sudan. You hire Sudanese counsel. You probe him about Sudanese substantive law, Sudanese procedure, and whether the Sudanese judicial system can be trusted. He answers your questions about corruption with vague assurances about how he’s a pretty well-connected lawyer, and most judges aren’t too bad, and corruption isn’t quite as rampant as outsiders seem to think. Then he goes on to explaining how he’ll defend your lawsuit.

That advice may be okay as far as it goes, but it’s missing the global perspective. Here’s one place where in-house lawyers — and sophisticated outside counsel — can add real value in litigation….

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It is that time of year when “A Christmas Story” begins to play on the endless loop left vacant by the old WPIX yule log. The scene I refer to is when Scut Farkus tortures Flick by turning his arm behind his back and forcing him to say “uncle” until Scut and his yellow eyes have had enough. Then he and his toady, Grover Dill, retreat back under the rocks from whence they came.

The Scut Farkuses of the in-house world are thankfully very few and even farther between. Usually, there is at least a façade of collegiality between different counsels representing their respective companies. Sometimes, this collegiality becomes real, and drinks are shared as deals are closed. But, yes, Virginia, there is a Scut Farkus Society.

They are the barely competent; just enough to be dangerous, and they usually somehow hit the lottery and work at uber-corporations whose money we as a company desire. As a vendor attorney, there is always a bit of kowtowing to the purchaser. Sometimes it’s a cultural necessity, but more often than not, it is a factor of needing the business. But everyone has a breaking point, yes, even me….

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I am guessing that approximately six people will read this column. That’s down from the usual nineteen, and it is because this is the day before Thanksgiving 2012 — the Last Thanksgiving if the Mayans were right, and just another day gorging on turkey with the family if they were wrong. Since so few of us are toiling away today, I want to give thanks for some things, and to some people, instead of writing another piece on in-house life.

First, thanks to David, Elie, and Staci. It has been an adventure writing for you. I used to read this site every day, and enjoyed it more often than not. I am sure that one day we’ll meet face to face and share some cocktails, discuss open-toed shoes, and admire Staci’s weight loss and wedding ring.

Thanks to the other writers on this blog, especially Tom Wallerstein and Mark Herrmann. Among the other writers here, those two consistently cause me to attempt to step up my game. That is the mark of good writing, when you strive to write as well as those whom you admire.

Thanks to the Commentariat. I am inspired and chastened by your (sometime) wit, and disgusted by your depravity. However, and I mean this sincerely, you are like the hordes in the pit of the Globe theater, ready to throw waste or snark on a moments notice — sometimes deservedly so, and sometimes with good humor. I hope you find jobs, and that the Internets always remain anonymous for you….

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I have borrowed the Boy Scout motto because I am involved in a complex cross-border transaction. Yeah, I am not kidding. I am using today’s column to point up the importance of in-house counsel being involved in a difficult deal as close to inception as possible.

Usually, the field calls when there is an approval needed for some non-standard language, or a review of a legal concept is required. At this stage in a deal, the parties are well on their way to completion, and some legal issue has arisen. But, in a complex global agreement, there are numerous variables that one must remain on top of from the start. Foremost is an understanding of the deal itself. A very close second is an understanding of what exactly the Customer is expecting, having awarded an RFP to your company.

RFPs are quirky animals, rife with opportunity for miscommunication or differing interpretations of answers. The field has prepared its response in reaction to the knowledge that several competitors are bidding on the same deal. And we all know that field ops are known for their lack of puffery and straight arrow responses to questions like, “Can you deliver X in Dubai on a single day’s notice?” Not to denigrate field ops, but the answers are always, “Yes, yes, a thousand times yes,” setting the Customer’s expectation at such a high level, that when it comes time to actually negotiate Ts and Cs, you, in-house lawyer-person, are going out to some very hungry wolves….

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I have to start by saying that the more Karl Rove tried to get the anchors to listen to him, the more he sounded like Milton desperately trying to hold on to his red stapler. Of course, that incident in “Office Space” didn’t end so well for the Initech building, but I digress. In any event, it is over — until Monday, when the cycle starts back up again. The most poignant moment for me last night was sharing a Garbage Plate with my son, who will be about to obtain his learner’s permit when the circus next comes to town. My prediction for 2016: Clinton in a landslide victory.

It is with optimism that I look forward to the close of 2012 and Q4. Business has been picking up and there are signs that the slog of economic momentum might continue to gain traction, and no matter your politics, you had better hope so. We all need each other right now, and not in a Kumbaya sort of way. Biglaw feeds off corporations, and corporations (who are people, too) require economies on local as well as global scales to continue to improve. But, as we see in parts of Europe, improvement is relative.

It could be catastrophic for even a single country to flounder, and the tenuous assistance being offered by stronger economies cannot last in perpetuity. Besides, I believe there’s a rule against that. Asia seems to be faring well, and will be a focal point in the next four years. Anyone who believed the blather from both candidates about “punishing” China needs to hear this — bull and sh*t. We rely so very heavily on China for its labor, imports, and other benefits, and China is so very deep into our economy, that any show of judicial force or otherwise is just that, a show….

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Previously on Moonlighting, we considered some common mistakes that law firm attorneys make when pitching their firms to seek work from new clients. It featured such dramatic gems as: find out who our enemies are; BS sounds like… gee, whaddya know… BS; and cameos from other need-to-know concepts making their appearance on the big (computer) screen.

In this week’s episode article, we’ll look at the other side of the coin, with a remake that focuses on the in-house lawyer’s perspective. What are some ways that in-house lawyers can ensure that they get the most out of those pitch meetings?

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I reported several weeks ago that I had been solicited to write an article about the future of Biglaw firms. But it was actually better than that: The invitation came from the “Sunday Review” (formerly “The Week In Review”) section of The New York Times, which is a pretty cool place to ask you to write.

Unfortunately, and apparently unbeknownst to the editor of the “Sunday Review” section, the Times ran a “DealBook” section on the fate of large law firms before my ditty could appear in print. This preempted my article (or at least that’s what the editor said, although maybe she was just sparing my feelings). So instead of having a piece in the NYT, I’m just another schlub typing away at Above the Law.

But if I took the time to write a 1,200-word piece on the future of big law firms, then I’m sure as heck going to get some use out of it. So here you are: “The Assault on Biglaw,” by yours truly, which damn near appeared in the Sunday Times….

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You’re an attorney at a mid-sized or large firm and have received an opportunity to pitch your firm’s work to a brand new prospective client. You’ve researched the company and the deals that your firm has worked on that would be a good match. All you have to do is go into the meeting sounding like you know what you’re talking about, and soon you’ll be raking in the hourly dough, right?

Perhaps. Many attorneys would be benefit from heeding Alexander Graham Bell’s words: “Before anything else, preparation is the key to success.” A lot of you falsely believe you’re just unnaturally talented at just winging it. And most of the companies you pitch to will never tell you that no, you’re really not. What follows are some actual examples of some common mistakes that lawyers make when pitching their firms to in-house counsel….

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I realized this week my one-year anniversary writing for Above the Law had come and gone. For some of you, it may seem like I have way overstayed my welcome, and for others (especially the hundred or so who sent heartfelt letters to my Gmail account) it may have gone quickly. For me, the year has been, well, interesting.

I “applied” for the position of writing about in-house life in August 2011. To their credit, or not, Lat and Elie asked me to write about what life is like as in-house counsel. I figured that the opportunity would help keep my writing skills sharp, get my name around, and offer me an opportunity to interact with others in the same arena, or those who wanted to go in-house. All have come to fruition.

I looked through some of my past columns, and like other writers, am frankly embarrassed by some, and proud of others. Candidly, it is difficult to write a weekly column on a topic such as in-house life. I am awestruck that Mark Herrmann can do it twice weekly. You can discuss how you got here, why you got here, and how others can get here. Then, for the Biglaw folks, you talk about how to get work from here, how to write RFPs for here, and so on. Finally, you can discuss what you do, why you do it, and give some anecdotes about your failures and successes.

You can throw in some gossip from your stint as a clerk and in Biglaw, and some very veiled gossip about in-house life. You can even approach the precipice of being honest about your career, all the while keeping one hand behind you grasping to a root, as you must always remember that this is a highly public forum….

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Last night’s debate was fun to watch, and would have been that much better if the president had actually followed his instincts and decked Mitt Romney, à la “Two Tribes.” There was a lot of huffing and puffing and talking over each other and ignoring Candy Crowley, and that was all in good fun. But for me, the most pointed moment was when Mitt claimed to understand that the women in his precious binder needed to get home to cook dinner and get the kids. Here’s the transcript:

“But number two, because I recognized that if you’re going to have women in the workforce that sometimes you need to be more flexible. My chief of staff, for instance, had two kids that were still in school. She said, I can’t be here until 7 or 8 o’clock at night. I need to be able to get home at 5 o’clock so I can be there for making dinner for my kids and being with them when they get home from school. So we said fine. Let’s have a flexible schedule so you can have hours that work for you. What we can do to help young women and women of all ages is to have a strong economy, so strong that employers that are looking to find good employees and bringing them into their workforce and adapting to a flexible work schedule that gives women opportunities that they would otherwise not be able to afford…”

Holy crap. It is 2012, and we have a candidate for President of the United States not only completely avoiding the direct question regarding equal pay, but also claiming that women need flexible schedules to be employable? WTF?!

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