Articles Posted in Thoughts/Observations

If only a lawyer’s sexual orientation was not even worth mentioning! The General Counsel of Constellation Energy, Charles Berardesco, is profiled in Diversity & The Bar, Sept./Oct. 2010 at 46. The piece makes much of his being gay and public about it (See my post of March 17, 2006: gay and lesbian lawyers; Jan. 14, 2007: Accenture’s survey of law firms; Aug. 4, 2007: NYC’s Office of Corporation Counsel; and April 16, 2009: the Corporate Equality Index.).

Review every word of every contract? In a profile called “Quotes to Practice By,” from the ACC Docket, Oct. 2010 at 22, we read this gem from a general counsel: “To this day, I still review every word of every contract to make sure it really needs to be there.” Surely you jest?

Deluge of articles and student notes on offshoring. Cassandra Burke Robertson, A Collaborative Model of Offshore Legal Outsourcing, Case Western School of Law Working Paper 2010-35 (Nov. 2010), cites in two footnotes a total of eight law review articles and six student notes. The 59-page paper cites many others but I did not count them. Most of the articles concern ethical issues perceived to be associated with the provision of offshore legal services. http://ssrn.com/abstract=1705505

Real morsels! Another law department diversity cookbook. Among the efforts by Shell’s law department to encourage diversity, according to Assistant General Counsel John Esquivel in Diversity & the Bar, Nov./Dec. at 16, are a recipe book and “learning lunches” (See my post of Jan. 21, 2010: MetLife and its ethnic recipe collection.). The “diversity cookbook” published this Fall includes not only multicultural recipes but family stories as well. Learning lunches, also sponsored by the law department, discuss topics associated with prejudice and diversity.

Employment Law Alliance. This network of law firms says in its ads that it covers all 50 states and more than 120 countries. I noted another employment law consortium several years ago (See my post of Dec. 1, 2006 #2: ius laboris.). From an ad we can also include Worklaw Network, a member collective of boutique labor and employment firms.

325 patent trolls and their 3,100 lawsuits. William Boice, a partner at Kilpatrick Stockton, spoke at the Georgia Corporate Counsel Institute. One of his slides said that the organization “Patent Freedom” has accumulated profiles of more than 325 different patent trolls. Since 1985, those entities have filed against 4,500 different defendants in more than 3,100 distinct actions (See my post of Dec. 16, 2010: Acacia Technologies.).

World-wide, the notional amount of outstanding derivatives contracts stands at $450 trillion. Awesome, and as the world knows some awfully complicated lawsuits can ensue when counterparties wrangle. To sort out those tussles, many of which pull in disputants from different countries, a new permanent body might resolve issues outside of traditional courts. That is what the Economist, Dec. 11, 2010, at 89, explains. “The sheer fiddliness of some financial cases threatens to overwhelm the skills and patience of standard commercial courts.” To address that, a group of bankers and lawyers have started to set up a forum in the Netherlands to sort things out more expeditiously.

Isn’t it possible to foresee such a court for complex, multi-national patent disputes and for massive Internet or privacy disputes? Given differences in laws and huge amounts at stake, specialized places where experts can referee and decide make sense. If that movement gets underway, it could alter in-house practice in certain areas of the law quite dramatically.

The concept of baseline external spend by legal departments and a call for clarity (Oct. 3, 2010)

Law departments needs a defined, consensual term such as “baseline external spend” for the normal pace of spending.

In terms of reducing costs, innovative sourcing easily bests innovative pricing (Oct. 4, 2010)

An interview in Worth.com, Dec./Jan. 2011 at 120, describes the new medical company Expert Consensus. Its founders charge about $12,000 to convene a panel of experts to consider a patient’s major medical decision, such as treatment for stage-four lung cancer. They collect and organize the electronic data, find the experts, and manage the consultation.

For a major lawsuit, with tens of millions of dollars in the balance as well as non-monetary risks, might a comparable panel of lawyers vet a company’s process, key decisions, and overall strategy?

Yes, I agree conflicts of interest could obstruct such a method and, yes, I agree that attorney-client privilege could be an issue, but the essential idea of objective wisdom applied laser-like to a messy legal problem could have massive benefits (See my post of Feb. 17, 2008: similar idea of a multi-disciplinary team assembled by a law firm.).

A subtle addition to MFN. It interested me to see that one careful law department define the term “most favored client” to exclude pro bono clients. Clearly, the rates charged pro bono clients could be very low or zero (See my post of April 30, 2009: MFN impositions with 8 posts.).

Another GC promoted to CEO. According to Corp. Counsel, Dec. 2010 at 18, Luke Kissam was promoted from general counsel to president of Albemarle Corp (See my post of Dec. 1, 2010: Merck’s promotion of its former general counsel.).

Older definition of benchmarking as visits to a law department. When I read about Novo Nordisk, honored by the Financial Times for its law department’s benchmark initiative, I realized that in years gone by the term “benchmark” often meant a series of visits or telephone calls to other law departments to find out about certain subjects. What now mostly focuses on metrics is called “benchmarking,” but perhaps should be called “benchmark surveys.”

Consider ten management concepts that in my opinion ought to have more currency among enlightened managers within law departments.

Concept visualization: display ideas in visual space to see their importance and relationships (See my post of May 15, 2009: idea relationship software with 6 references; and Feb. 10, 2010: visual analytics.).

Correlations: when data shows a numeric connection between two events or metrics (See my post of Feb.13, 2008: correlations with 16 references; and Sept. 28, 2010: correlations with 10 references.).

The plural of general counsel is general counsel (no s). Under the entry for “counsel,” no less an authority than R. W. Burfield, Ed., The New Fowler’s Modern English Usage (Oxford 1996) at 187, pronounces “(pl. unchanged: [long quote ending with] five prosecuting counsel”).” The magisterial book on usage offers no help on “law department” compared to “legal department.”

Car allowances for in-house lawyers are fairly common around the world. From the 2010 In-House Global Salary & Benefits Survey conducted by Laurence Simons (pg. 12) comes the astonishing fact, to American sensibilities at least, that approximately 55 percent of the 1,900 respondents enjoy a “car or car allowance” as one of their benefits. My impression is that only a few high-powered general counsel in the United States might have such a benefit (See my post of Feb. 26, 2006: as an officer, possible to have a car stipend.).

General semantics, our language shapes our thoughts. In the 1930’s, Alfred Korzybski, a scientist and a philosopher, laid the foundation for general semantics, the discipline that studies the relationships between the ways in which the words we use affect how we think. We frame the world in concepts that are limited by the words we have to express them. Trying to use words effectively, I embrace wholeheartedly the basic premise of general semantics.

I write blithely about contracts and the associated role of internal legal departments. Negotiation of contracts has seemed to me a fairly straightforward matter of knowledge of the business, recognition of leverage and ultimately allocation of risks. How naïve!

My underestimation of the complications involved became apparent as I read the IACCM (International Association of Contract and Commercial Management) 2010 Top Terms in Negotiation. A chart on page 4 shows “Factors that are most significant in limiting your ability to change what is negotiated.” Here are the nine in descending order of significance. “Resistance by the other side” (65%), “Internal/stakeholder resistance” (44%), “Internal rules/power reserved” (44%), “Market practices” (32%), “Market pressures” (31%), “Government” (23%), “Regulatory” (22%), “Knowledge” (21%), and “Insurance” (7%).

It is a curious mix of limits. Non-lawyer contract negotiators may have their hands tied more than lawyers, but I offer these findings to help clarify the challenges faced by commercial lawyers.