Articles Posted in Productivity

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John Deere’ law department operates with a competency model, but the source of this statement, “Leading Practices in Job Titles for In-House Lawyers: What Companies are Doing” (Assoc. Corp. Counsel, Aug. 2005 at 14), offers no further details.

More detail comes from Boeing’s law department, which has publicized its set of skill and leadership competencies. Its key competency areas include: “judgment, communication, technical skills/knowledge; integrity, quality/productivity, customer satisfaction, people working together, corporate citizenship, enhanced shareholder value, and leadership.”

My notion of a competency embraces a displayed, teachable capability of an individual, so writing, analysis, creativity, and self-discipline are competencies. “Enhanced shareholder value” results, one hopes, from the skilful application by many people of multiple competencies. To the same point, “customer satisfaction” rises or falls because lawyers apply appropriate competencies in a skilful manner, but it is not a competency. I guess “corporate citizenship” can be trained and leads to identifiable behavior – it’s a competency.

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For the first time I have seen an actual list of a law department’s core competencies, Counsel to Counsel, March 2006 at 26 (See my posts of Sept. 21, 2005 on a brand company and its legal focus and May 14, 2005 on Bain’s survey of management tools.).

Philip Morris International has 125 lawyers around the globe. One of the law department’s tactics to keep the group cohesive is to train the professionals on the “core competencies” of intellectual property, competition law and the Foreign Corrupt Practices Act

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In a thoughtful piece by E. Leigh Dance and Deborah McMurray, “10 Things We’ve Learned from In-House Counsel in the US and Europe,” Strategies: The Journal of Legal Marketing (Oct. 1, 2003) the authors write that “Legal departments are increasingly engaging in ‘vulnerability audits.’”

According to them, these audits cover “a wide range of weaknesses or areas open to attack: physical, technological, product or service related, natural disasters, terrorism, and ethical, moral, corporate or financial.” They cite one GC who has established 10 “threat management” teams that cover each business unit and region.

I have not observed or heard of a law department tasked with such a vulnerability review, and I would classify the assignment as far beyond the scope of what a law department should undertake (See my post of July 21, 2005 on quasi-legal tasks and the article cited.).

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(1) “The severance contract contains a problematic non-compete. The contract is governed by Delaware law.”
(2) “The severance contract, governed by Delaware law, contains a problematic non-compete.”

Sentence (1) suffers from the clunkiness of two short sentences that sing-song the same structure. Further, the writer gives the troublesome non-compete provision and the governing law equal importance. When a lawyer uses a gerund phrase, as in (2), the sentence flows and also makes clear that the applicability of Delaware law is of secondary importance to the non-compete difficulty.

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Among the arguments against allowing business unit generalist lawyers to handle litigation is that they are not practiced in the arts and they may put litigation on the back burner when the choice of how to spend time includes getting deals done. The managers and executives they support are not interested in resolving old mistakes that fester as cases; they make bonus based on what they sell and service.

Analogously, if lawyers who supervise law firms on litigated matters are allowed to take depositions, prepare and file pleadings, and argue in court, they may let slip their other responsibilities to supervise those outside counsel, whose role it is to do the front-line litigation.

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Deborah A. DeMott, in her essay, “The Discrete Roles of General Counsel,” 74 Fordham Law Review 955-981 (2005), uses this felicitous phrase, which is so true. She cites another work for this supportive quote: “Inside lawyers “recognize that their job is to give the best possible answer they can, but also that the answer is more valuable at a 50% level of certainty today than a week from today at 90%…”

Urgency, keeping up with the pace of a competitive, race-horse business, offends (or scares) lawyers and all lawyers both remember the mistakes speed caused and plead for more time. But clients need advice, now.

To make the transition from careful, thoughtful perfection as an outside lawyer, who bills by the hour so has a financial incentive to practice that time-consuming way, to the speed of “tell me your best guidance on the elevator down” is to become an in-house lawyer.

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One often reads about law firms, when they represent a company broadly and over time, in terms that are anthropomorphic. “The law firm knows the client,” “the firm responded quickly,” “the firm and the law department have bonded.” Nonetheless, a firm is nothing more than a group of people.

Comprehensive insight into a corporation may happen within the context of a large deal, but over time and in normal circumstances, I question how much partners with a law firm, let alone associates, pool their knowledge of a particular client. Law firms organized by substantive legal areas create silos and congeal knowledge; knowledge doesn’t diffuse.

Then, add in the inevitable departures of lawyers and their shifting responsibilities toward other clients, and the presumed collective knowledge pool of the law firm starts to leak. Clients do not want to pay for lawyers in a firm to combine their knowledge of the company other than during a specific deal.

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Bewitched, bothered and bewildered am I by the notion of legal complexity (See my posts in 2005 of June 28 and Aug. 27 on litigation complexity, May 15 on legal services complexity, and Dec. 14 on regulatory complexity.). I wish there were metrics in this field.

One angle would certainly assess regulations, their number and abstruseness. Few regulations match the interpretive depth of the Internal Revenue Code. According to Michelle White, “Legal Complexity and Lawyers’ Benefit from Litigation, Int’l Rev. of Law and Ecs. (1992, Vol. 12), 381, 383 n. 5 there were at that time 140 pages of IRS regulations interpreting section 704(b) of the code (relating to partnership distributive shares) and a mind-boggling labyrinth interpreting the original issue discount rules – 441 pages!

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Software developers and linguists are coding software that will let lawyers who lack a full command of English write it fluently (Wilson Quarterly, Vol. 30, Winter 2006 at 39). Others are developing software that will turn writing into speech and vice versa. Google translates material into many languages, as I have learned from this blog when searchers in Spanish, French, and Arabic see it translated.

All these technological developments will help the polyglot members of global law departments work more smoothly together.

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The 120-lawyer department at the British Broadcasting Corporation had a four-member property team. The BBC’s general counsel, Nicholas Eldred, recently decided to terminate that team, as part of a push to cut overhead. He had decided that the property group “was not a core function,” as reported in LegalWeek, Feb. 2, 2006.

All law departments should apply the litmus test of “core function” to their various activities (See my post of July 21, 2005 on quasi-legal activities).