"This is Not Legal Advice"

One of the biggest changes in working as an in-house lawyer versus working at a firm is that you’re no longer surrounded by people who approach problems like a lawyer. Product development, engineering, marketing/engagement, BD/sales, creative, policy, HR and management all have different discipline-specific takes on how to approach business problems.

This means that you’ve got to change the way you do things. A lot. (Of course, good outside counsel know and understand this too.)

In no particular order, here are the 8 major things I’ve learned (and rediscovered) about practicing law at a company - I find it useful to remind myself of them from time to time:

1. Presentation is everything. Even if you’ve got the best intentions at heart and your analysis is spot-on, your presentation will make or break you.

2. Cut to the chase. People have about 1/10th the interest and concentration to dig into an issue (especially a legal one) as you think they do, so keep communications short and direct. Focus on recommendations backed up with justification and minimize analysis. Keep that genius argument to yourself unless it is material to the decision.

3. Make recommendations, not CYA emails. Don’t stop at analyzing risks - recommend a path and justify it well.

4. Stay true to yourself and your ethics. As a lawyer, you are the conscience of the company and everyone you work with. If you’re really not sure what to do, use your state bar ethics hotline.

5. Be relevant when you apply the law, not stoic. There are very few black-and-white risks out there and determining the likelihood of a bad outcome is usually a subjective exercise. Relevance is especially important when negotiating a deal as the person on the other side usually has a very different idea of the importance of certain risks.

6. Identify your mentors. There are many, many ways to be a lawyer, not to mention a service-oriented professional. Find people who do it like you think it should be done.

7. Know your stuff and be prepared to justify your position. Many of my clients have at least a layman’s specialization in a particular area of law that applies to them, and sometimes a deeper specialization than I do.

8. Know when you need to be involved (and, more importantly, when you don’t). Almost all business problems have a legal component, but not all business problems are legally significant. Figuring out when you need to be involved is incredibly hard to do, especially if you’re a problem solving oriented type-A. Seriously, if you figure out how to do this well - let me know and I’ll buy you a drink.

In my current job, I put a fair amount of thought into translating “legalese” into “human” readable language. Easily comprehensible language should be a key component of any document designed to communicate ideas, including contracts and disclosures. In reality, this can be hard to achieve for many reasons, not the least of which is that legal documents are frequently drafted by committee (usually with its members each looking for a different outcome which may conflict).

I typically find that there are two approaches to plain language drafting.

“Plain English” Documents

The first way is straightforward - write the documents in simple, easy to understand terms. While it sounds easy, I find that this is by far the more time-consuming method.  Regardless, I prefer this type of writing, especially given a consumer audience.

A good example of a document employing this method is Twitter’s Developer Rules of the Road.

Summaries/Tips

Another method is to create a legally operative document that was written in unedited “legalese” and present a separate summary of those legal terms or inline tips summarizing concepts.

Some excellent examples are the Creative Commons Licenses which contain a “human readable” license deed as well as legal code.

Choosing an Approach and Pitfalls

There are varying advantages to each approach.

By using plain english in the document you are drafting, only one set of terms applies, whereas summaries necessarily restate certain terms and can cause conflicts.

In comparison, summaries allow the drafter to retain operative legal terms that may be required in certain cases, such as a license grant or disclaimer of warranties which are difficult to draft in “plain English”.

Because of the comparative advantages and disadvantages, I find that the alternative that works the best for a document is driven by the circumstances surrounding that document. For example, plain English documents may work best in situations where there are few operative legal terms, whereas summaries may help individuals understand specific concepts.

As a final thought, the two approaches are not necessarily mutually exclusive. Consider Twitter’s Terms of Service, which tries to combine summaries with plain English drafting.

The FTC is looking into the impact of digital rights management on consumers.

In its public comments, the EFF has strongly advocated that DRM is cracked frequently on introduction and eventually break a consumer’s ability to use the products that they bought and paid for.

It’s fascinating that this issue is now being considered in the consumer rights rubric, considering that, just a few years ago, it was generally viewed as simply a copyright owner’s ability to control the nature of the distribution of her coopyrighted works.

Indemnification is one of those “boilerplate” clauses which some licensing attorneys (including  myself) love to mess with. Generally, the provision’s purpose is to deal with the balancing of risks in a situation when one of the contracting entities is sued by a third party over a set of events. Generally, these are events over which, as between the parties, the indemnifying party has control.

There are many ways to slice up the provision. However, two very important things to consider are the indemnification trigger (e.g. on settlement/final judgement v. any alleged claim, etc.) and indemnification procedure.

Additionally, outside the clause itself, depending on the deal, thinking about a cap on damages is also important and, since indemnification may likely arise out of an indirect claim, one also wants to consider the limitation on liabilities as well.

It is worthwhile to note that a very brief indemnification clause can be more indemnitee favorable (for great examples of this phenomenon, see various website terms of services) because the length involved in the clauses frequently involve detail around the scope and procedure of the indemnification.

Here’s a sample mutual indemnification on breach clause:

“A party (“Indemnifying Party”) shall, at its expense and the request of the other party (“Indemnified Party”), defend any third-party claim or action brought against the Indemnified Party, and its affiliates, directors, officers, employees, licensees, agents and independent contractors, to the extent it is based upon a claim that, if true, would constitute a breach of a warranty, representation or covenant of the Indemnifying Party set forth in this Agreement (collectively, “Indemnified Claims”). The Indemnified Party shall promptly notify the Indemnifying Party in writing, specifying the nature of the action and the total monetary amount sought or other such relief as is sought therein. The Indemnified Party shall cooperate with the Indemnifying Party at the Indemnifying Party’s expense in all reasonable respects in connection with the defense of any such action. The Indemnifying Party may upon written notice to the Indemnified Party undertake to control and conduct all proceedings or negotiations in connection therewith, assume and control the defense thereof, and if it so undertakes, it shall also undertake all other required steps or proceedings to settle or defend any such action, including the employment of counsel which shall be reasonably satisfactory to the Indemnified Party, and payment of all reasonably incurred expenses. The Indemnified Party shall have the right to employ separate counsel to provide input into the defense, at Indemnified Party’s own cost. The Indemnifying Party shall reimburse the Indemnified Party upon demand for any payments made or loss suffered by it at any time after the date of tender, based upon the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of claims, demands, or actions, in respect to any damages to which the foregoing relates. The Indemnifying Party shall not settle any claim or action under this Section __ on the Indemnified Party’s behalf without first obtaining the Indemnified Party’s written permission, which permission shall not be unreasonably withheld, and the Indemnifying Party shall indemnify and hold the Indemnified Party harmless from and against any costs, damages and fees reasonably incurred by Indemnified Party, including but not limited to fees of attorneys and other professionals, that are attributable to such Indemnified Claims. The Indemnified Party shall provide the Indemnifying Party reasonably prompt notice in writing of any such Indemnified Claims and provide the Indemnifying Party with reasonable information and assistance, at the Indemnifying Party’s expense, to help the Indemnifying Party to defend such Indemnified Claims.”