I’m tired of hearing about BTCL.

You’d think from the press and pundits that make-or-break, do-or-die, all-in Texas hold ‘em litigation cases were a dime a dozen. They are not. They are once in a blue moon and so not the reason for law departments being blue about outside counsel costs being over the moon.

Ponder some data on federal securities class actions, the iconic high-risk lawsuit. According to data compiled by the Stanford Law School and Cornerstone Research, between 1998 and 2005, each year somewhat more than two percent of listed companies faced such a lawsuit (Wall St. J., Feb. 15, 2006 at A16). Moreover, defendants in those lawsuits were disproportionately Dow Jones Industrial Index, biotech or Nasdaq Internet Index companies. Another study, “Recent Trends in Securities Class Action Litigation” (NERA, July 2003), found that the annual rate of filings was 214 securities class actions during the 18 months after Sarbanes-Oxley became law, a rate just above the 208 filings per year between 1996 and 2001.

A lawsuit that can put a company out of business, where the company has a law department, happens rarely, yet this bogey-man gets bandied about as if it were par for the course.

Obviously, law suits can cost millions of dollars a year to defend and settlement costs can reach and exceed hundreds of millions of dollars. But BTCL that capsizes a Fortune 500 company? No way.

So that its counselors appreciate fully the total worth of their employment, the law department of John Deere explains what their salary and benefit potential could be over time with the company. This innovative practice is described only briefly in “Leading Practices in Job Titles for In-House Lawyers: What Companies are Doing” (Assoc. Corp. Counsel, Aug. 2005 at 14), but it makes sense.

Answer the questions everyone in the law department has about money, and do so before they muster up the courage to ask (See my post of July 24, 2005 about disclosure of compensation ranges, Nov. 24, 2005 on publishing bonus determinants, and Feb. 19, 2006 about some downsides of bonuses.). Spell out the situation regarding options, matching grants to 401Ks, tuition reimbursement, and all other aspects of compensation. Money may not buy happiness, but it certainly spawns rumors and speculation.

To be promoted to an officer, a lawyer in a corporation usually must be a direct report to the General Counsel, at a minimum.

The perquisites include participation in senior executive compensation plans, more indemnification rights, coverage under the D&O policies of the company, perhaps the right to accelerate options and grants in the case of change of control, and other benefits.

Whereas a promotion within the law department may not require anyone else’s approval (See my post of Nov. 8, 2005 on the role of HR representatives who serve law departments.), elevating someone to become an officer is a corporate decision. In most companies, the titles (and availability) of Senior Vice President or Vice President are determined by the company’s human resources department and its policies for such officer titles. Such slots are sparingly approved.

Hence, becoming an in-house officer implies compensation, authority, and recognition.

At LegalTech in New York City, I was struck by how many litigation-support software vendors referred to their patents on software, “technology,” or algorithms. I noted Attenex (“suppression and de-duping technology”), Dolphin Search (“neural network technology”), Discovery Mining (“cluster computing technology”) and MetaLINCS (“algorithms for culling, de-duping and indexing”), and undoubtedly missed others.

Although a post on this intellectual property may seem remote from law department management, there are some links. One connection is that the patented software must necessarily be proprietary – as compared to open source – so a licensee law department needs to recognize that legal complexity. A second link is that the vendors in this field are competing mightily, which means many won’t survive and many more will merge or morph, possibly leaving law departments high and dry. Third, the patina of a patent may either distract a shopper or properly lure them. Finally, where there are patents, there are infringement risks, which are risks that anyone who has licensed the patented technology buys into (cf. Blackberry from RIM).

This search turned up 133 hits, but at least a 100 of them are commencement addresses for graduates of various law schools. Of the first 60 listed, the books were, in order:

Rees Morrison, Law Department Benchmarks (Glasser LegalWorks 2001), with the proud Amazon Sales Rank of 2,441,287 (wait, don’t laught, others are much lower!)

Jack Rudman, Law Department Investigator: Test Preparation Study Guide (C849) for $29.95 (I could not figure out what this book does, and for whom)

David Schellhase, Corporate Law Department Handbook, for $231.15 and no Amazon Sales Rank.

Harold Vogel, Corporate Law Department Practice (Prentice-Hall, 1972), ranked at 4,162,325

Rees Morrison, Client Satisfaction for Law Departments (Corp. Legal Times 2003), ranked at 2,975,586

John Greener, History of the Office of the Corporate Counsel of the City of New York (M. B. Brown 1907) no rank

Catherine Cronin-Harris, Building ADR with the Corporate Law Department (CPR 1997), ranked 3,336,462

Joanne Martin, Corporate Law Department Trends and the Effect of the Current Bar Admission System (Am. Corp. Counsel Inst. 1987) not ranked.

A letter to the editor sent by a British business school professor offered this teasing bit: “Several recent software developments, mostly from philosophy and computing groups, support the use of argument diagramming as one means to develop critical thinking,” in Harvard Bus. Rev., Vol. 84, Feb. 2006 at 160.

Argument diagramming also helps a person learn, since “Gains equivalent to those resulting from a complete undergraduate program have been achieved in fewer than 100 hours of class time using argument-mapping techniques. An argument diagram/map uses text boxes to represent claims and arrows or lines to show connections. A complicated agreement would become clearer with the use of software to show the inter-connections. An excellent article from last year by Maralee Harrell (Carnegie Mellon) lists Araugcaria, Argutect, Athena Standard, Inspiration and Reason!Able.

No fan of SMART goals (See my post of April 8, 2005), I had to smile at a recent post on the Association Renewal Blog. The authors recommend not focusing on Specific, Measurable, Achievable, Realistic, and Time-based goals, but rather on Decisive, Unique, Meaningful and Bold (DUMB) goals.

A bit over the top, to be sure, but this restatement of how leaders, including general counsel, ought to take action in ways that make a difference – not just trying to subscribe to “best practices” (See my posts of July 14, 2005 and Sept. 3, 2005) – and that change how their law departments serve their corporate clients does capture focused, courageous, innovation. Not such a DUMB idea.

Deborah A. DeMott, “The Discrete Roles of General Counsel,” 74 Fordham Law Review 955-981 (2005) cites a slew of articles by or about general counsel and in-house counsel as a role. I have listed them in reverse chronological order.
Robert W. Gordon, A New Role for Lawyers?: The Corporate Counselor After Enron, in ENRON: CORPORATE FIASCOS AND THEIR IMPLICATIONS (Nancy B. Rapoport & Bala G. Dharan eds. 2004).

Michele M. Hedges, General Counsel and the Shifting Sea of Change, in ENRON: CORPORATE FIASCOS AND THEIR IMPLICATIONS 539 (Nancy B. Rapoport & Bala G. Dharan eds. 2004).

Susanna M. Kim Dual Identities and Dueling Obligations: Preserving Independence in Corporate Representation, 68 TENN. L. REV. 179 (2004).

Hugh P. Gunz & Sally P. Gunz, The Lawyer’s Response to Organizational Professional Conflict: An Empirical Study of the Ethical Decision Making of In-house Counsel, 39 AM. BUS. L.J. 241 (2002).

Carl D. Liggio, Sr., A Look at the Role of Corporate Counsel: Back to the Future – or Is It the Past, 44 ARIZ. L.REV. 621 (2002).

Robert Eli Rosen, “We’re All Consultants Now”: How Change in Client Organizational Strategies Influences Change in the Organization of Corporate Legal Services, 44 ARIZ. L. REV. 637 (2002).

Robert L. Nelson & Laura Beth Nielson, Cops, Counsel, and Entrepreneurs: Constructing the Role of Inside Counsel, 34 LAW & SOC’Y REV. 457 (2000)

Nancy J. Moore, Conflicts of Interest for In-House Counsel: Issues Emerging from the Expanding Role of the Attorney-Employee, 39 S. TEX. L. REV. 497 (1998)

Mary J. Daly, The Cultural, Ethical, and Legal Challenges in Lawyering for a Global Organization: The Role of the General Counsel, 46 EMORY L.J. 1057, 1061-62 (1997).

Geoffrey James F. Kelley, The Role of the General Counsel, 46 EMORY L.J. 1197 (1997).

C. Hazard, Jr., Ethical Dilemmas of Corporate Counsel, 46 EMORY L.J. 1011 (1997)

Sally R. Weaver, Ethical Dilemmas of Corporate of Corporate Counsel: A Structural and Contextual Analysis, 46 EMORY L.J. 1023 (1997).

Robert L. Bordon, The Organization and Staffing of an In-House Counsel Office in Order to Handle Litigation Directly, THE CORPORATE LITIGATOR 78 (Francis J. Burke, Jr. & Michael L. Goldblatt Eds. 1989).

For law department managers, the levels of numbers they can make use of are countless. By that pun, I mean that we can aggregate or breakdown metrics as much as we have data, time and energy. Consider an illustration from a recent consulting project.

Our quarry was quasi-legal work, the kinds of tasks that lawyers can do but should not do (see my article in July 2005’s Legal Times on these leaches). We hunted for them with interviews and surveys.

An aggregate level would have been to report, “Lawyers in this department sometimes spend their time on quasi-legal tasks.” A more precise level: “On average, lawyers spend eight percent of their time – about three hours a week – on quasi-legal tasks.” With more investigation, we could find that “Ten percent of the lawyers spend less than one hour a week; 40 percent spend 1-3 hours a week; 30 percent spend 3-5 hours a week; and 20 percent spend more than 5 hours a week on quasi-legal work.” Sorting the data even more finely we could say, “The Counsel level lawyers averaged 7 hours a week; the Assistant Counsel level 5 hours, and the Associate Counsel 3.” Depending how granularly you collect your data, you can keep the Cuisinart of analysis going.

The best level of metrics to reach is the one that pinpoints where a problem resides and gives clues how to make improvements.

One year ago today I began this blog. One thousand posts later, 33,000 hits, 45 comments, 23 trackbacks – and enormous fun. Thank you ALM, thank you Anne for indulging me, and thank you to all those bloggers-in-arms who have helped me and disagreed with me and cited me. I have four thoughts, based on looking back over the year (and a movie for each, for fun).

The Silence of the Lambs. So many, many people read the blawg, but never utter a peep. They don’t comment, they don’t dash off an e-mail, they don’t give anything back. I’m sorry for that, all the silent lurkers, because it would be even more fun and instructive for all of us to hear from you.

The Matrix. It is hard for me to observe clear boundaries for my posts. A law department is a group of people that shares a mission. Anything that has to do with people who work together could be fair game for this blawg; anything that has to do with professionals and those who support them; anything about professional services, law, sociology, psychology, economics, neuro-science – you get the point. The blawg’s scope expands out in so many dimensions.

Forest Gump. People note how much I post, and perhaps someday the blog well may run dry. Perhaps, but I doubt it, because now, with everything I read and encounter, I mentally blog. What could be read and heard is infinite and even more omniscient is the Web, cultivated by the collective intelligence and curiosity of those who find my blog. Every search engine that finds my blog lets me peek into the mind of someone, stimulates ideas, and I can pick forever from the box of chocolates.

The French Connection. Not only does source material beckon from everywhere, but the more I create posts the more I see connections. Like the scholars in Hermann Hesse’s Glass Bead Game, when I reflect on the combinations and permutations, the exploration never ends. I’m in a fast car of ideas zooming though an exciting chase scene.

Rudy. What most energizes my blogging – aside from the fun, the chance to play with words, and a means to professional development (when I am not blogging I consult a bit to law departments) – is my sincere hope that this blog is creating a useful resource. A resource for those who want to manage a law department well, but don’t have all the answers. Here, maybe, are some answers or pointers.

This blawg gives me a medium for my doing exactly what I am good at: collecting interesting items, distilling them with a touch of panache, and helping in-house lawyers improve their management skills. It’s a worthwhile goal and the game is fun.