Stuck In Legal, Responses

Well, I certainly struck a nerve with my Stuck In Legal rant/post last week.  As of now, there are 32 comments on the blog — my typical post generates 0-1 — and I've picked up between 50 and 75 new followers on Twitter, probably mostly because Fred tweeted about the post. 

Most of the comments on the blog were cheering me on; a couple were from lawyers, one well reasoned and another just a counter rant against stupid business people that had one or two good points buried in it.  You can certainly click through the link above if you want to read them.

But two comments didn't get put on the blog, which I thought I'd post here.  Keep the good thoughts coming on this topic.  It's an important one.

First, Jonathan Ezor (a professor of law and technology) posted his response — not a rebuttal — on the Business Week blog here.  He makes some very good points about how both sides, businessperson and counsel, can work better together to eliminate a bunch of the hassles I noted in my original post.

Second, Joe Stanganelli, a lawyer, emailed me the following, which was too long for my Intense Debate comment software to handle:

In defense of my profession…

EXPLANATIONS:

•Why companies' legal departments or outside counsel aren't directed to be as efficient in doing their work as their other departments

How exactly do you mean?  I'm not sure this is true.  Given the average amount of hours our profession works as it is, we *have* to be efficient.

I can tell you, however, that a huge pet peeve of us lawyers is when our clients essentially say (typically when they’re being billed hourly), "Gee, I want an answer to this very complex legal question that will require a lot of research because no statutes or case laws are directly on point, but don't spend a lot of time on it."

 

This is a bit like saying, “Look, don’t spend a lot of time on this transplant…I’ve got a meeting in an hour, and I’m trying to save money besides."

Also bear in mind that lawyers are not widget-makers or assembly line workers.  We aren’t even (usually) executive decision-makers.  We are in the knowledge and information industry.  We read, we think, and we write.  If you can provide us with some tips as to how to read, think, or write more efficiently, we would be delighted to hear them.

 

•Why companies insist on using their standard form of agreement if they're going to staff a legal department to review contracts anyway (this clearly wouldn't work if everyone in the world behaved this way)

The standard form of agreement has already (presumably) been determined by the company’s legal department to be the best form for the company's interests as part of the legal department’s careful legal analysis (i.e., the job they are paid to do).  Often, however, other companies, clients, etc. don’t use the standard form, or send their own form, or modify the standard form, or any number of other idiosyncrasies can happen with the execution of a contract.  All of these things have legal ramifications and have been the subject of past litigation.

 

•Why lawyers insist on answering questions with "because that's how all our contracts are" instead of applying their brains and logic to situations

(I'll try not to take too much offense at that last part.)

 

This generally happens because the answer “because that’s how all our contracts are” is a lot easier to say than to give the CEO a crash course in contract law.  It’s not fair, but it’s true.

A good lawyer, however, should at least be able to explain to boil it down to a few bullet points without being arrogant about it.

 

•Why business people seem to have no leverage with their legal departments, especially in larger companies, therefore surrendering the negotiation of business terms and the timing of relationship launches, technology usage, etc. to lawyers

This criticism is, if you’ll forgive me for saying so, a bit mind-blowing.  It’s not a matter of “leverage" at all.

Companies have legal departments as a preventative measure because they recognize that the best time to hire a lawyer is before you actually need one.  Most of law practice, in fact, is this “preventative law” and compliance work.  It saves the client (in this case, the company) time and money down the road by staving off lawsuits and liability.

These lawyers are in the business of protecting their clients from themselves – which the clients willingly pay them for because the clients (usually) recognize that they did not go to law school, pass the Bar Exam, and gain years of experiencing practicing law.

So when a company wants to launch a potentially harmful product via a distribution agreement that allows the distributor to get more money than he should because of a technicality, the legal department has to step in and tell the company, “YOU WILL GET SUED IF YOU DO THIS AND LOSE X AMOUNT OF DOLLARS!!!” or they aren’t doing their jobs.

A lawyer is a counselor – an advisor.  Any leader who totally disregards his advisors is not a good leader.

Again, this is not a matter of not having leverage with legal departments; it is a matter of not being able to change the law.

Please don’t shoot the messenger.

 

•Why in-house lawyers make the same dumb changes to wording and formatting that lawyers who bill by the hour make

The law is the law is the law; how the lawyer gets paid does not impact what the law is.  Those “dumb changes” are tried and true terminology that mean certain things in the courts and (usually) all the lawyers and judges know what they mean.  If the lawyers left it alone, your document or contract would potentially (perhaps even likely) mean something totally different.

 

Overall, please recognize that lawyers – at least in the legal department / “preventative law” context that you discuss – are in the risk management and compliance business.  They don’t make the law (at least, not the ones who work for you); they’re simply the guides who are navigating you – the layperson – through the legal system (one that took us years to understand).

After all, if you were blind, and you had a seeing-eye dog, would you get mad at the seeing-eye dog for not letting you cross the street when it’s a green light and a Mack truck is coming down the road?  Would you think that seeing-eye dogs were conspiring against you to not let you cross the street?

 

I will say this, though: Joshua Baer makes a great point.  A good lawyer should be able to provide you with a list of options, and explain (at least in a rudimentary fashion) the dollars-and-cents consequences of each one.  As J.P. Morgan said, “Well, I don't know as I want a lawyer to tell me what I cannot do. I hire him to tell how to do what I want to do.”

Stuck in Legal

If I had a nickel for every time I heard from someone on our sales or business development team that a critical contract, to which both sides had agreed on the fundamental business terms, was "stuck in legal," I'd be rich.  Maybe not rich enough to pay all the world's legal bills, but that's a separate story.

I completely understand the need for contracts and lawyers to review them — and sometimes, they do have to be long and complex.  But here's what I don't understand:

• Why companies' legal departments or outside counsel aren't directed to be as efficient in doing their work as their other departments
• Why companies insist on using their standard form of agreement if they're going to staff a legal department to review contracts anyway (this clearly wouldn't work if everyone in the world behaved this way)
• Why lawyers insist on answering questions with "because that's how all our contracts are" instead of applying their brains and logic to situations
• Why business people seem to have no leverage with their legal departments, especially in larger companies, therefore surrendering the negotiation of business terms and the timing of relationship launches, technology usage, etc. to lawyers
• Why in-house lawyers make the same dumb changes to wording and formatting that lawyers who bill by the hour make

I'm not generally a conspiracy theorist, but much of our encounters with outside lawyers leads me to believe that there's some oath that lawyers take to keep their profession vibrant by creating work for each other.  Someday, I'll write a similar post about procurement departments at big companies.  But it might be as simple as a global find-and-replace on this one!

Techstars Roundup:  Why I Mentor Other Entrepreneurs

Yesterday was Demo/Investor day at Techstars in Boulder, Colorado.  A lot of people have written about it – Fred, Brad, and a great piece by Don Dodge on TechCrunch listing out all the companies.  My colleague George and I co-mentored two of the companies, SendGrid and Mailana, and we really enjoyed working with Isaac and Pete, the two entrepreneurs.

I posted twice earlier this summer on the TechStars experience.  My first post on this, Where do you Start?, was about whether to be methodical in business planning for a startup or dive right into the details.  My second post, One Pitfall to Avoid, was about making sure you don’t create a whizzy solution looking for a problem, but that you start with a problem that needs solving.

Rather than rehash what others have written about yesterday — yes, it was great and fun and energizing — I thought I’d focus on why I spend time mentoring new entrepreneurs.  I did it this year at TechStars, but I’ve done this informally for probably a dozen different entrepreneurs over the years in the community in general. 

Anyway, there are four main reasons I spend time mentoring other entrepreneurs (in no particular order):

It sharpens the saw.  This is Stephen Covey’s language from both The 7 Habits of Highly Effective People and The 8th Habit:  From Effectiveness to Greatness, and it simply refers to an activity that puls you out of the day to day and refreshes your brain because it’s different.  Running, playing guitar, mentoring sessions with entrepreneurs — they all clear the head and are just plain fun.

I get good specific ideas for my own business.  I think I came away from every single meeting I had with either entrepreneur this year with at least one new “to do” for myself and my team at Return Path.  There’s nothing quite like seeing how another company or entrepreneur operates to spur on good thinking, and in this case, both teams we worked with were working in the email space, so they were very relevant to our day-to-day.

I crystallize my own thoughts and ideas.  Much like writing this blog, problem/solution sessions with other entrepreneurs forces me to take a cloud of ideas down to a simple sentence or paragraph. 

I learn a lot about my colleagues.  This is a specific case for this year because I co-mentored these companies with George, although I guess bits and pieces of it have come up over the years as I’ve roped other colleauges into other situations.  George and I brought different ideas and frames of reference to our sessions with SendGrid and Mailana, and it was fun for me and a good learning experience as well to see how George approached the same problems I did.  Call it a “peek inside George’s brain.”

Hopefully I will get invited back to TechStars again next year as a mentor – it was great fun, and I’m incredibly proud of Pete and Isaac and their teams with how well they presented their companies yesterday!

Return Path Makes The List of “Best Places to Work” in Colorado

Long-time readers of this blog no doubt understand my central philosophy when it comes to management.   I believe that people come first.  When employees are happy they make our clients happy.  Happy clients happily pay for our services, which tends to make our investors happy.  When you start with the people, everyone wins.

At Return Path we invest a lot in our people.  And we invest a lot in Team People – what we call “Human Resources” – to support those people. 

So what a great honor to see all that hard work and investment pay off in the form of a “Best Places to Work” honor!  The Society for Human Resources Management named us one of its “Best Places to Work in Colorado” at an awards banquet last Friday.  You can read more about how we won this award on the Return Path blog.

Of course a CEO can set the agenda and make certain decisions to support a great work environment.  But it is the 150 people who come to Return Path every day who make it the amazing place that it is.  I could not be more thankful for each and every one of them – their passion, dedication, teamwork and kindness all come together to create a company that I would want to work for even if I wasn’t the CEO.

Book Short:  Worth Buying Free

The cynic in me wanted to start this book review of  Free: The Future of a Radical Price, by Chris Anderson, by complaining that I had to pay for the book.  But it ended up being good enough that I won’t do that (plus, the author said there are free digital versions available — though the Kindle edition still costs money).  At any rate, a bunch of reviews I read about the book panned it when compared to Anderson’s prior book, The Long Tail (post, link to book).

I won’t get into the details of the book, though you’ll get an idea from the paragraph below, but Anderson has a few gems worth quoting:

• Any topic that can divide critics into two opposite camps — “totally wrong” and “so obvious” — has got to be a good one
• Free makes Paid more profitable
• Younger players have more time than money…older players have more money than time
• Doing things we like without pay often makes us happier than the work we do for a salary
• It’s true that each generation takes for granted some things their parents valued, but that doesn’t mean that generation values everything less
  

While Free is s probably not quite as good as The Long Tail, it does a good job of organizing and classifying and explaining the power of different economic models that involve a free component, and I found it very thought provoking about our own business at Return Path.

We already do a couple forms of Free — we practice the “third party” model, by giving things away to ISPs but selling them to mailers; and we practice Freemium by providing Senderscore.org and Feedback Loops for free in order to attract paying customers to our testing and monitoring application and whitelist.  But could we do others?  Maybe.  They may not be revolutionary, but they’re smart marketing.

As some of the reviewers write, the book isn’t the be-all-end-all of marketing, it overreaches at times, and it is more applicable to some businesses than others, but Free was definitely worth paying for.

A David Allen nightmare

The comments on Flickr are almost as funny as the picture, but for those of you who can’t see the detail, I believe this is Esther Dyson peering over an inbox that has almost 4.3 billion emails in it.

Book Short:  A Twofer

My friend Andrew Winston, who is one of the nation’s gurus in corporate sustainability, just published his second book, this one from Harvard Business Press — Green Recovery:  Get Lean, Get Smart, and Emerge from the Downturn on Top.  It builds on the cases and successes he had with his first book, Green to Gold (post, link to book), which came out a couple years ago and has become the standard for how businesses embrace sustainability and use it to their financial and strategic competitive advantage rather than thinking of it as a burden or a cost center.

Green Recovery is a shorter read (my kind of business book), and it hits a few key themes:

• Going green not only shouldn’t wait for better economic times, it’s a key way out of this mess

• Businesses have relied on layoffs to cut costs for far too long — it’s time to get lean on stuff, not people
• This is about survival for many businesses:  Detroit died because it missed the green wave of environmental interest and rising energy prices
• And the overarching theme…Green doesn’t raise costs, it lowers them – it’s a source of profit and innovation
  

The book reminds me a lot of my post Living With Less, For Good, which I wrote at the beginning of the financial market freefall last fall, talking about how we as a company were figuring out how to cut back without cutting people (something we’ve managed to do).  Although I wasn’t talking about green initiatives specifically, the point of getting leaner on “stuff” really resonates with me.

At the end of the day, Andrew proves that steering your company to go green — no matter what industry you’re in — is a twofer:  you can increase the strength of the business and simultaneously do your part to clean up the environment.  That’s definitely the “change we can believe in” mentality applied quite pragmatically!

Self-Discipline:  Broken Windows Applied to You

Just as my last post about New Shoes was touching a bit of a nerve around, as one friend put it, "mental housecleaning," my colleague Angela pointed me to a great post on a blog I've never seen before ("advice at the intersection of work and life" — I just subscribed), called How to Have More Self-Discipline.  Man, is that article targeted at me, especially about working out. 

I think the author is right — more discipline around the edges does impact happiness.  But it also impacts productivity.  Not just because working out gives you more energy.  Because having your act together in small ways makes you feel like you have your act together in all ways.  As the author notes (without this specific analogy), it's a little like the "broken windows" theory of policing.  You crack down on graffiti and broken windows, you stop more violent crime, in part because the same people commit small and large crimes, in part because you create a more orderly society in visible, if sometimes a bit small and symbolic, ways.

I agree that the best example in the "non work" world is fitness.  But what about the "work world"?  What's relevant around self-discipline for professionals?  Consider these examples:

– A clean inbox at the end of the day.  Yes, it's the David Allen theory of workplace productivity which I espouse, but it does actually work.  A clean mind is free to think, dream, solve problems.  The quickest path to keeping it clean is not having a pile of little things to deal with in front of it, taking up space

– Showing up on time.  It may sound dumb, but people who are chronically late to meetings are constantly behind.  The day is spent rushing around, cutting conversations short — in other words, unhappy and not as productive.  The discipline of ending meetings on time with enough buffer to travel or even just prepare for the next meeting so you can start it on time (and not waste the time of the other people in the meeting) is important.  Have too many meetings that you can't be at all of them on time?  Say no to some — or make them shorter to force efficiency.  There's nothing wrong with a 10-minute meeting

– Dressing for success.  We live in a casual world, especially in our industry.  I admit, once in a while I wear jeans or a Hawaiian shirt to work — even shorts if it's a particularly hot and humid day.  (And even in New York, not just in Boulder.)  But no matter what you wear, you can make sure you look neat and professional, not sloppy.  Skip the ripped jeans or faded/frayed/rock concert t-shirt.  Tuck in the shirt if it's that kind of shirt, and wear a belt.  The discipline of "dressing up" carries productivity a long way.  Want to really test this out at the edges?  Try wearing a suit or tie one day to work.  You feel different, and you sound different

– Doing your expenses.  Honestly, I've never seen an area where more smart and conscientious people fall apart than producing a simple expense report.  Come up with a system for it — do one every week, every trip on the plane home, every time you have an expense — and just take the 5 minutes and finish it off.  Sure, expenses are a pain, but they only really become a pain and a millstone around your brain when you let them sit for months because you "don't have time" to fill them out, then you get accounting all pissed off at you, and the project's size, complexity, and distance from the actual event all mount

– Follow rules of grammar and punctuation.  Writing, whether for external or internal consumption, is still writing.  I'm not sure when everyone became ee cummings and decided that it's ok to forget the basic rules of English grammar and punctuation.  Make sure your emails and even your IMs, at least when they're for business, follow the rules.  You look smarter when you do.  Maybe — maybe — with Twitter or SMS you can excuse some of this and go with abbreviations.  But I wouldn't normally consider a lot of those formal business communications

I could go on and on, but I think you get the idea.  A little self-discipline goes a long way at work (and in life)!

New Shoes

This isn't really a post about new shoes, I promise.  Remember, I live in the world of pattern matching and analogies.  But I did go running yesterday morning — my first run in a new pair of running shoes.  I usually get new running shoes every 3-6 months, depending on how much mileage I'm logging.  And I find the same thing every time:  I may not realize I'm uncomfortable running in the old shoes, but the minute I put the new ones on, I realize just how far the old ones had deteriorated and just how much better life is in the new ones.  Same model shoe – just a fresh pair.  And I run faster, stronger, and happier.

How much of your professional life works the same way?  I often find that small tweaks to renew and refresh existing processes, relationships, thought patterns, and work product make an enormous difference in the energy I bring to work, and in the quality of the work I do.  Last week, for example, I had two such events.

First, I went through and overhauled what I call my "operating system," which is really my fancy, David Allen-style to-do list.  I changed some categories and formatting, cleaned out some dead items, rethought some items, added some new ones.  And voila – I went from semi-ignoring the system to running my priorities by it once again.  And I've had my most productive week in a long time.

Second, I completely re-thought the dynamics of my relationship with someone on the team.  They had grown stale.  Check-in meetings weren't interesting or productive any more, just perfunctory.  Together we sat down and crafted a new way of working together, a new list of topics we were going to tackle together that added more value to the organization.  It was like a breath of fresh air.

We can't completely reinvent ourselves every time we need a career pick-me-up.  But we can remember that every few months, it's time to put on a fresh pair of running shoes and put some spring back in our steps.

Opening Night

My brother Michael, internet marketer by day and a writer by night, had his first play produced last night off-Broadway at the Manhattan Repertory Theater’s SummerFest.  The play is a romantic comedy called Fallout, and it’s my favorite thing he’s written of about 8-10 works I’ve read over the years, both screen and stage plays. 

This is the first time I’ve ever had a bit of a “behind the scenes” look at an Opening Night, and it was fun to be a part of it.  When I think about entrepreneurial pursuits in business, I’m not sure this even compares.  For Michael, it seemed to be the equivalent of a company’s founding, a product launch, and an IPO — all rolled into one.  It was more intense than any individual thing I’ve seen in business over the years. 

And it came out great.  The play was a big success with the audience (and not just among those of us whose last name is Blumberg).  Michael, the director Robin, and the incredibly talented cast did a great job, so much so that the theater company is extending the run to one extra night, this Sunday at 7 p.m., since the three initial nights are sold out.  Anyone interested, the number to call for tickets is 646-329-6588.

Book Short:  Bringing it on Home