Presidents Message Q2 2010

Dear Mountain West In-House Counsel Colleagues,

In our second quarter newsletter, we have tried to provide some useful items including: an insightful article on protecting inter­nal investigations from discovery (by Wade Woodard of Banducci Woodard Schwartzman PLLC); an opportunity to meet some of our new members through our member spotlights; and a list of upcoming events. We hope you will mark the events on your calendar and join us for relevant in-house CLE, socializing and networking opportunities.

One of the events I hope you are planning to attend is the Association of Corporate Counsel’s Annual Meeting in San Antonio, Texas on Oct. 24–27, 2010. You’ll recall that the theme for the Annual Meeting is for in-house counsel to focus on “being the solu­tion.” Last quarter, my president’s message addressed some aspects of being the solu­tion and I’m grateful to have another chance to share some more thoughts on the topic before the Annual Meeting.

Previously, I would have argued that it is unrealistic for any of us to believe that we are the panacea for all our client’s problems. Many times our clients need specialized attention (that’s what the out­side counsel spend is for, isn’t it?). While I’m still confident that none of us have the universal solution to each of our client’s problems, I have a budding belief that we can apply a particular mindset about those problems in a way that will add value to our clients. By doing this, we become more of “the solution” than we would otherwise have been.

Recently I read “The Opportunity in Every Problem,” a book written by Scott L. Taylor, which essentially suggests that instead of looking for the solution to prob­lems we should look for the opportunities in problems. Here is how Taylor contrasts two different views about problems:

“To one, problems are exciting. Problems have the ability to direct your mind to that glorious state of introspection where you are able to receive inspiration, genius, and personal value. To another, problems are fearful, impenetrable walls of failure, deficiency, and self-defeat. Your beliefs and desires determine the way you experience it. If you believe in solutions and desire opportunity, then answers will inevitably flow from that special realm where talent and brilliance originate.”

Doesn’t that persuade us to be hungry for and excited about “problems” as opposed to simply being gunslinger counselors, shooting down problems for our clients as they rear their ugly heads? As a side note: Isn’t that one of the perceptions we’d like to change about lawyers, a perception that we are short-fused, that we are trigger-happy, and that we are overly aggressive when addressing even the slightest potential issue? That view of attorneys as mean deal-killers wastes our client’s energy (and everyone else’s).  How much better if we continue to perpetuate the A-team, sophisticated, smart, execu­tion-oriented, find-a-way-to-make-it-happen, deal facilitator lawyers? That gives people energy. That creates value.

Back on topic, I believe that one way to create value without perpetuating waste is in the way we view “problems.” With the “prob­lems are bad” view we create waste. Clients are scared of problems and sometimes of us, they spend a lot of money to make us their hired guns, and many times we shoot first and ask questions later (if we ever find the time to get around to it). It is essen­tially a destructive and reactive viewpoint. The other view, that problems are opportu­nities for creating value, can lead to much more value.  For example - more educated clients, more eyes issue spotting, more sophisticated risk alloca­tion, better legal output, etc.

Changing my mindset about problems gave me a surge of excitement and zeal to go out and find some problems to solve. I must admit that it also helped me to feel appropriately embarrassed about the way I have aggressively destroyed anything even remotely resembling a problem in when representing my client.

I went straightway to work on a very important agreement for my client. Jumping straightway to the most obnoxious provisions, I looked for ways to creatively meet my client’s needs while attempting to address the risks that worried the other party. This was a different method because a normal approach was to simply strike the problematic text in its entirety. The extra work and effort put some initial strain on me; it actually hurt my brain. Headache. But after stretching for a bit, I realized that some of the new ideas I came up with were actually quite clever. I was pretty pleased with myself. A smile came to my face as I realized that I was creating value. I was going to get a resolution without a lot of argumentative back and forth between the two parties that would waste time and money. As I pointed out these time saving strategies to my client, clearly the client was pleased. It inspired some ideas with my client as well. We found that our combined ideas brought synergy in the "realm where talent and brilliance originate.”

Now, instead of nuking egregious provisions out of one-sided contracts, I am excited about educating my business people and looking for creative risk allocation and smart drafting solutions. Instead of wast­ing ammunition, shooting down and reacting to problems as they pop up all day, I’m now creating value by eagerly moving to an earlier stage of problem analysis to see what I can find out about systems and processes and other aspects of my client’s business; I’m looking for opportunities for value creation there.

Assuming our clients are looking to increase value and eliminate waste, we can agree that to “be the solution” we must adopt the excited-about-finding-the-opportunity-in-every-problem approach.

Can we adopt this approach? Can we change the way we approach problems after so many years of engrained attitudes and behaviors? Can we do better than we have done before? In response to this last question, I’d like to share this quote from Carl Holmes:

“Our business in life is not to get ahead of others but to get ahead of ourselves; to break our own records; to outstrip our yesterdays by our todays; to bear our trials more beautifully than we ever dreamed we could; to give as we never have given; to do our work with more force and a finer finish than ever. This is the true idea: to get ahead of ourselves.”

We can do better than we’ve done before. We can change the way we look at problems and find the opportunity in them to add more value to our clients. We can be the solution.

Dear colleagues in Idaho, Montana, Utah and Wyoming,

My first and second quarter messages both discussed how we can add value to our clients during these difficult times. This message is about how the difficult times can add value to us. Like during the previous quarters of 2009, work continues to be very tough for most of us, and many of our clients still face uncertain economic conditions. However, I believe that these difficult times can actually be a boon—a gift that, if used wisely, can benefit us for years to come.

Certain traits can only be forged in the fire of adversity and hardship. In the throws of our current conditions, we can obtain a higher learning and discipline, develop and hone certain skills, and become more efficient and effective. We can also increase our courage, persistence, and ability to empathize. These are powerful traits that add significant value to us and our clients.

In order for us to grow from adversity, we need to have the proper attitude towards it and to learn the lessons it teaches us.

Many of you know that I enjoy surfing. An interesting paradox of surfing is that the darker, more challenging, and intimidating the wave is, the more enjoyable the ride can be (http://tinyurl.com/surfwave). As we sit in our offices and think about global and local problems and how our clients will deal with them, we can see the wave swelling. But if we think about those problems properly, instead of the fear of drowning, we can feel a surge of excited anticipation. Either way, there is no shortage of adrenaline these days. I am not suggesting that any of us want fifteen sets of these current economic times to roll in. Rather, I am suggesting that if we change the way we look at the tidal status quo, it could take on an entirely different form. We might get excited about harnessing its power and leveraging it to our advantage (and enjoying it to boot).

Charles Dickens captured the power of having the right perspective in adversity in the following passage:

“It was the best of times, it was the worst of times; it was the age of wisdom, it was the age of foolishness; it was the epoch of belief, it was the epoch of incredulity; it was the season of Light, it was the season of Darkness; it was the spring of hope, it was the winter of despair; we had everything before us, we had nothing before us; we were all going directly to Heaven, we were all going the other way.”

Having the right attitude about our circumstances is the first step. We also need to learn from them.  Easy tasks, simple projects, and uncomplicated matters do not offer that much to us; they are not exactly the best teaching tools.

Think back to first year law school. It was not easy, but that was the point. When the heat is on, the tasks are difficult, the projects are hard, and matters are complex, that is where we experience cathartic change and lasting progression.  Staying strong and enduring hardship is good (and necessary), but it’s not enough. I wish it were as simple as just being strong during difficult times. When I began surfing, I thought that because I was a strong swimmer and an experienced snowboarder, I would just pick it right up if I endured the hard bashing waves. Although sticking with it and persevering was necessary, it did not prevent me from getting pummeled into the sand wave after wave. I quickly learned that more than sheer willpower was required. Learning from adversity is not “survival of the fittest;” we can’t just endure and get by on our strength alone, we have to adapt and we have to learn.   

If we don’t learn and adapt, we come out of adversity the way we entered, with just a little thicker skin.

This year, our Chapter has done an excellent job growing from adversity. Despite great past leaders who were supported by a strong board, our Chapter was in a precarious situation at the beginning of the year due to the effect the tough economy had on sponsorship revenues. We could have either thrown in the towel or continued operating as though nothing was different (to an inevitable demise). Instead, we choose to look for solutions, do more with less, be more creative and agile, and adapt to our conditions. While the hard times are not over, we have achieved some notable accomplishments year to date. Allow me to share a few of these successes.

We began by whipping our finances into shape with the help of our new Treasurer. We started using a financial software package that has great reporting capabilities. Empowered with a clearer picture of our financial resources, we realized we needed to end a long-term relationship with our event coordinator. Though difficult, that decision has since proven beneficial. We had to creatively find ways to promote, increase attendance, and improve the quality of our events. Judging by the statistics and the attendee feedback, we are doing better than expected.

Also this year, we began webcasting certain programs in an attempt to connect with our members outside of the Salt Lake and Boise metro areas. The webcasting permits our Wyoming and Montana members to join our events and benefit from quality continuing legal education opportunities. Moreover, with the increased attendance (via web or otherwise), our law firm sponsors receive better returns on their sponsorship investments.

We have added creative sponsorship arrangements with vendors that range from credit card processors to convention centers. Traditional law firm sponsorship commitments are also turning out to be more than we anticipated.  Our Chapter’s successes result from the right attitude of our executive committee, board, chairs and administrator. I’m impressed with their relentless desire to learn, adapt, and improve.

In closing, I am grateful for these trying times and the opportunities they afford us. Remember, we’re all in this together. Call on your ACC colleagues or draw upon your ACC resources whenever you need support. In the meantime, what of this tidal wave of pressure, high stakes, budget crunches, impending deadlines, and uncertainty that many of us are facing?

Surf’s up!

Nathan D. Nelson

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2nd Quarter Message

Greetings Fellow Members of the Mountain West Chapter of the Association of Corporate Counsel:

I hope you have been enjoying (or at least surviving) this incredibly busy and very interesting economic period. Some have labeled this extraordinarily chal­lenging time a “crisis.” I’ve heard the Chinese ideogram for “crisis” is made up of two characters signifying “opportu­nity” and “danger.” Although technically this is a misconception of the Chinese characters and an etymological fallacy, I still like the concept.

When I last wrote, I acknowledged some of the dangers we face in these difficult times, as well as the opportunities we have to show that we truly add value to our corporate clients. I suggested that utilizing the many resources available to each of us by virtue of our member­ship in ACC would help us save money (adding value) and enable us to deliver a better quality legal representation (adding value). In this quarter’s news­letter, I’d like to expound upon certain ACC membership benefits that can truly help us add value: the ACC Committees and the Member Knowledge Network benefits.

Our chapter is unique in that we com­prise such a large geographic area (the largest of any single ACC chapter), including the states of Idaho, Montana, Utah and Wyoming, which together form a geographic area two and a half times the size of the state of California (which, incidentally, has four ACC chapters and about six times the population). It is challenging to run a chapter in one major met­ropolitan area, let alone as many metropolitan areas as we have in our huge chapter. Imagine the difficulty of bringing our members together in any of the four major cities within our chapter, which are on average over 500 miles from each other.

In an effort to address some of these concerns, this year we instituted a programs co-chair position in the Boise metro area to equalize the lop-sided focus on events in the Salt Lake metro area. We are fortunate to have Jeanne Baughman from the Washington divi­sion of URS Corporation fill that Idaho programs co-chair position. We may also need to look for program chairs in Montana and Wyoming as well. If anyone is interested in filling these volunteer positions, please let me know. These types of efforts bring our member­ship together in a way that allows us to fully experience the social networking benefits that are a hallmark of member­ship in ACC.

We want the benefit of being able to meet and establish meaningful relation­ships with fellow in-housers who face similar types of legal issues. We want to develop relationships within this network that allow us to pick up the phone without being shy and call each other when we need some advice on best practices, or when we need empathy, or when we just want to share war stories — in confidence and in accordance with the professional rules, of course. The benefits of the ACC committees and the Member Knowledge Network offer some help in this regard. Not only do they provide opportuni­ties for us to get smart and no or low cost (thus adding value to our corporate clients) but they also help us bridge the geographical gaps between us, connect­ing our chapter as well as unifying us with fellow in-housers from all over the world.

ACC Committees

ACC sponsors 16 different committees, each focusing on substantive legal practice areas or types of in-house practice. The committees are: Compliance and Ethics; Corporate & Securities Law; Employment & Labor; Energy, Environmental, Health & Safety; Financial Services; IT, Data Privacy & Ecommerce; Insurance Staff Counsel; International Legal Affairs; Intellectual Property; Law Department Management; Litigation; New to In-house; Nonprofit Organizations; Real Estate; and the Small Law Department Committee.

Any ACC member can become a mem­ber of one or more committees. Their objectives are: to develop resources to share among members; to organize continuing legal education programs; to provide forums where members can exchange ideas and expertise; to organize conferences and other events around specific legal issues; to advocate public policy positions; and to comment on legislative, regulatory and other mat­ters. Each hosts a monthly conference that committee members can join via telephone, and offers social networking opportunities that we might otherwise miss out on. Even better, your level of involvement in any committee is a func­tion of your desire and ability to partici­pate, with as little or as much time as you have available. They are free to join, they provide opportunities to learn and they are an incubator for meaningful career relationships.

 

P. S. I think they are full of people who are eager to get to know you and have your involvement. One aspect of these groups that I appreciate is the ability to make friends by sliding into the group, assimilating and then getting out of your shell. It is easier for some of us to do that than to network in the way I’ll review next, which is more of a one-on-one approach. However, you’ll see that ACC has also made this one easy by giving us the chance to take a “Hmm, Mr. or Ms. Expert, I have a question” lead-in approach to establishing social network relationships.

Member Knowledge Network

The ACC Member Knowledge Network (MKN) is another exciting way to develop helpful and meaningful relation­ships with other experienced ACC mem­bers. National’s website describes MKN as “an exclusive service for ACC mem­bers who wish to contact other members who have expertise regarding a variety of legal issues including, but not limited to, retention of local counsel, benchmark­ing, and obtaining corporation forms, policies, and procedures.”

You can search the MKN database by geographic location and by practice expertise. Results from the searches are randomly displayed in a set of 10 names of member experts that are drawn from the names in the database for that prac­tice area/geographic area.

Member experts are members just like you and I who have volunteered to be available to other ACC members to share their specialized knowledge related to certain practice areas. For example, if you want to discuss international market entry considerations with me, I hold myself out as a member expert with significant experience in this field. Who else can help you with certain issues that you face? Log on and perform a search through the various member experts listed in the MKN database to find out. You can search it as much as you’d like—there is no limit. I’ve used MKN a number of times and developed relation­ships with in-house lawyers at Microsoft, Yahoo and Coca-Cola to name a few. I’ve received questions, as well. For example, I was recently contacted by a large medical device company out of the Midwest, and asked my views and opinions about whether it was better to set up an employed sales force in various European states versus independent sales representatives.

Obviously, each of us must use MKN with proper care—we DO NOT give formal legal advice or opinions, and we DO NOT expect that the information we get from member experts is legal advice or an opinion on which we can rely. The real benefit comes in the form of someone to talk to who has been there or who has dealt with the issues that we are curious about and who can act as a sounding board or just help us talk through the issues.

It is comforting to know that when I’m confronted with certain issues as an in-houser, I can search the MKN database to see if there is a fellow ACC member out there who has agreed to share his or her knowledge on the subject. Although there are some bugs in the search results that still need to be worked out (mainly related to the occasional repetition of a member expert name in the search results), the MKN database is a valuable tool to those who make the effort to use it. Search it now at www.acc.com/community/findamember. You can log in with your ACC username and password and start searching. I hope you find the expertise you’re searching for and I hope you find some new friends too! If you would like to be a part of the MKN peer-to-peer network, you can sign up and edit your areas of expertise to help others find you. 

In summary, during these tough eco­nomic times (or “crisis” if you will) now, maybe more than ever, we need to use all the resources available to us to assist the organizations we represent. There are wonderful opportunities available to us to shine, and there are dangers if we do not. I’m grateful that even though our chapter is spread so far apart geo­graphically, certain ACC benefits give us instant access to relevant information and meaningful relationships that give each of us the opportunity to be bet­ter counselors to our corporate clients. Check out the ACC Committees and the MKN online at www.acc.com or feel free to give me a call anytime to discuss. I hope that the above mentioned ACC benefits will help each of us stay con­nected, stay smart and stay valuable to those whose interests we represent.

 

Until next time,

Nathan D. Nelson, Esq.