Ten Tips for Going In-House
Identify your Enemy
This is probably the most important. Even if you join the large in-house legal department of a mega-corporation like Exxon, there will be an enemy. While the enemy might be individual, it might also be a group. You are in competition with anyone who enters at the same time you do. Contracting deparments often are at war with the legal department and if they are successful in getting you fired, it's one for their team.
Failure to identify your enemy means your tenure will be short. Legal ethics will only help as a sword, not as a shield. Someone may invite you to get involved in a matter or try to assign a case to you that is a battlefield where many have fallen. If others have failed, it's for a reason. "I can't get involved in that matter because of conflicts." Sun-Tzu is your friend.
Learn the Back Story
Many matters that cross your desk will appear to be routine. Review of a contract; a non-disclosure agreement, updating corporate forms in view of new legislation or a court decision. Beware of those matters that while appearing routine contain only partial facts and only part of the story.
In a dispute between members of a joint venture, as the calendar year rolled around approving the company's financials and renewing registrations is considered routine. Your counterparty asks if these routine matters can be resolved, notwithstanding the parties' disputes. You agree because of statutory requirements only to find that a not-so-bright light on your team has refused to cooperate on routine matters in a misguided effort to obtain an advantage over the substantive dispute.
"Oh no," the genius said, "we can't agree to paying the annual registration fee."
"If you don't the company will be delisted," you respond.
"Then that will be their fault," he claims, "because blah blah blah."
Consider every matter a minefield. Even when you know the backstory.
Go Out of Your Way to do Favors
An in-house legal department may be a new animal for many within the organization. Before your arrival if they only dealt with outside counsel who weren't part of the organization and subject to the company's chain of command. They dealt with lawyers like they might deal with any other supplier or customer. Initially, they will not know how to deal with you. Attorney-client confidentiality is one area of confusion, because your client is the organization. No non-lawyer will understand this.
Win allies by going the extra mile and helping your colleagues outside the legal department meet their deadlines, even if it means goodbye to that 9 to 5 that you dreamt of before going in-house.
Keep an 'Attaboy' File
Every time anyone in the organization praises you, make a note if the praise is oral and a copy if written. These encomia should go into an "attaboy file." You will need this information when it comes time for salary review or when someone in the organization, unhappy with your legal advice and tired of filing reclama after reclama, tries to get you thrown out the door. See "Identify your Enemy" above.
Time Records, Time Records, Time Records
The bane of lawyers is the requirement to keep detailed time records so that bills can be prepared for clients. One of the advantages of in-house practice, supposedly, is that there is no need to keep such records. Don't believe it. You still need to keep them for a host of reasons, but here are four:
— identifying people present at a meeting if this becomes an issue (it will)
— justifying your salary (and value to the organization)
— aide-memoire for those off the cuff oral legal opinions
— keeping a follow-up to your to-do list
— proving corporate legal expenditures in court for fee reimbursement
Plaintiff lawyers, or any lawyer taking a fee on a contingency fee basis often believe that there is no need to keep time records. This belief evaporates the moment they are ordered to prepare a bill of costs in a matter where the client is entitled to attorneys fees. Reconstructing time spent is a task for novelists because it is properly called narrative fiction.
Contemporaneous records are admissible in court. Reconstructions might be admissible, but then again, there is a high risk that they will be cut by the presiding judge if disputed. And they will be disputed.
Educate your Superiors
Unless your superiors are old court hands, they will not understand that there are certain activities that are a necessary part of lawyering. One example is talking to opposing counsel. Your superiors may foolishly believe that this is some kind of betrayal and that no quarter should ever be given. The opponent should be met on the battlefield only. This attitude is stupid. Even the most contentious cases require cooperation from opposing counsel and without communication there is no cooperation.
A factory of a certain size may have an in-house medical facility; a clinic or even a physician on call. No corporate officer would question an in-house physician as to why he prescribed Tylenol instead of aspirin to an employee who reported a headache but the same officer will feel privileged to question why you served standard form interrogatories or Requests to Admit to an opposing lawyer.
A little knowledge is a dangerous thing; explain generally that conduct in litigated civil disputes is governed by the Rules of Civil Procedure. Offer to send a copy to the offending corporate officer. He will say yes, not read what you send him and in the future hopefully will keep his nose out of court business.
In 1998, General Augusto Pinochet of Chile traveled to London to see his doctor and his friend Margaret Thatcher. He had made the trip several times, but on this occasion a Spanish judge had filed a warrant for his arrest. The warrant was served, Pinochet was arrested and prevented from leaving the country.
In 2018, Meng Wanzhou traveled from China to Canada on her way to a conference in Mexico. She had made the trip to Canada on numerous occasions and even owned property in Vancouver. But on this occasion, authorities in the United States had prepared an criminal complaint charging her with violations of American laws relating to Iran.
Pinochet was accused of committing acts not in the United Kingdom, but in Chile. Under Spanish law, these acts were a violation of Spanish law. Meng was accused of committing acts not in Canada nor in the United States. Under American law, the off-again, on-again sanctions against Iran are given extraterritorial application.
"Extraterritorial" is a bad word in China. A very bad word.
The Chilean Air Force sent a passenger aircraft from Santiago to London where it waited for the moment to take the General home. That moment came when the British courts ruled against extradition on the grounds of ill health. Politics had nothing to do with the decision, although it is clear that the fight over extradition was between Spain and Chile.
In the Meng case, the fight is between the United States and China. The two countries are in the middle of a trade dispute and the President of the United States has conceded that the Meng case is part of that dispute. No Canadian laws have been broken. Canada is, in effect, a mere bystander. Meanwhile China has taken action of various kinds against two Canadian citizens in China.
What should Canada do? It has a treaty obligation with the United States. But Canada has no dog in this fight and faces the threat of real consequences should it accede to the U.S. extradition request. Clearly, a technical solution is called for, and here it is.
First, the Prime Minister should, through its representatives, let China know that if Canada were to take any actions which might be viewed favorably by the Peoples Republic, that it would expect reciprocal actions. At the same time, American diplomats would be reminded that it is unfortunate that Canada has been caught in a dispute between the United States and China.
Canada can directly ask whether the United States will indemnify Canada for any actions taken against it by China. I already know the U.S. response to the question, "what will you do if China imposes trade sanctions on Canada on account of this affair?"
Oh, they might weep and wail, but the Americans will say, in essence, "we will do nothing. We will not indemnify Canada."
So here is a modest proposal to resolve the matter, though keep in mind it is the principle here and not the particulars that count. The day before* the next hearing, a monolingual French-speaking judge will be substituted for the current judge in Vancouver. At the hearing, she will note that the American extradition request was not submitted in French. Or if it was submitted in French--this is utterly unlikely--that it suffers from technical issues. Resolving those technical issues could take a while. While those technical issues are being worked on, Meng's bond conditions are enlarged to permit her to return to China on the condition she will return to Vancouver if asked.
The American lawyers in court that day will be shocked, but the American diplomats in Ottawa know that it is coming after their negative answer.
The plane, of course, will be waiting at the airport, fueled and ready to take her away. The Huawei portion of the trade dispute will be resolved in a manner favorable to Meng when that dispute is inevitably resolved. Wal-Mart is China and middle America must have Walmart. Without China there is no iPhone. The two countries are in a symbiotic relationship.
You may say this plan will not work because there is no French language requirement for extradition requests, you miss the nature of the judiciary. The law is whatever the first instance judge says it is. Interlocutory appeal is an exception. Not only does every court have local rules, every judge has her own local rules.
Anyone who has ever filed a federal brief in an appellate matter** knows that the rules are hypertechnical and change without warning. There are rules governing the placement and color of wax seals on letters rogatory. Certainly a technical omission can be found or created. Because the omission will be technical in nature, it is no one's fault and no one is responsible. Canada saves face and so does the United States.
What about the rule of law? Meng is not accused of a malum in se crime, but an American regulatory and political violation which is not against the law in her own country. Indeed, it is not even a violation of the law in Canada.
By the way, if you think that this scenario has not already been discussed in Ottawa, Washington and Beijing, you are more naive than I am.***
Oh, and what were the long term diplomatic consequences of Britain's refusal to honor Spain's extradition request for General Pinochet?
There weren't any.
Could someone please pass this note to Justin?
* Thailand changed the judge the day before a final hearing in a closely-watched case involving a decades-long dispute with Saudi Arabia. The new judge's rulings "appear inconsistent" with earlier rulings in the case.
**Here, the rules are quite granular and even address how words should be counted: a 20,000 word brief may contain more than 20,000 words because certain words are not counted, but if the amount of counted words exceeds the permitted amount, the brief will be rejected.
*** See, https://www.cbc.ca/news/politics/kelly-craft-ambassador-china-meng-1.5013176
Lawyers are famous for bulging briefcases. In a world of emails with dozens of attachments and tricks to avoid page limitations like using 1.8 line leading instead of double spacing, what do you do if you have a portable document file that exceeds size limitations? How can you reduce the size of a pdf file? Technology creates solutions but sometimes works as a barrier.
The first step is to reduce the resolution of any images in the document. If the document is going to be viewed on a computer screen, images need only be set at a resolution of 72 dpi. Images created in the CMYK colorspace take up even more room. Convert all your images to 72 dpi RGB and you will see a substantial size savings.
There's a commercial program called PDF Squeezer (https://witt-software.com/pdfsqueezer/) that will do the work for you. At six dollars, this tool will not break the bank. Unfortunately, it's available for the Mac platform only. Will someone please banish the meaningless phrase "free download"?
If six dollars is too dear or if you live in a country subject to the American weaponization of finance, there's a free alternative for Linux: https://github.com/bnanes/shrink-pdf.
If you simply must put 13 ounces into a 12 ounce container, use the Winrar compression program to split your file into pieces with a maximum size of 10 MB. Then you will be able to email the pieces. Just don't send one hundred of them in the same email.
Finally, if you are creating the document, do you have to send a pdf? PDF's are difficult to read on the go because in the hive mind, pdf=A4. This is not true. PDF's are size agnostic. You can create a pdf to match the screen size of an iPhone. Another alternative is not to use the pdf format all. Word documents can be exported to the ePub format with just a few more steps. Epub files are easy to share and read on smartphones.
OG lawyers may prefer printing and mailing the document. Which means labels and a program to format them. By the time all the set-up is finished, you could have typed five labels on a typewriter. Which is why law offices keep a few of the ancient venerable machines around.
And which is why some of them have bulging briefcases to carry around all the paper.
Next: the abomination that is electronic filing.
The anomaly known as the “frequency illusion” or the “Baader-Meinhoff phenomenon” occurs when a fact you just heard of all of a sudden seems to crop up everywhere. Bruce Jenner changed his gender and appeared in a white dress on the cover of Vanity Fair, perhaps motivating Melanie Trump to copy the outfit at the Republican National Convention. Suddenly, trans people seem to be everywhere. Bradley, now Chelsea Manning leaked documents, went to prison and changed his sex; North Carolina is in an uproar about unisex bathrooms. Opponents point out the fact that American homes lack gender-restricted bathrooms and the country hasn’t gone to hell (or maybe it has, as some would reference Trump’s election as proof). But no matter, the bathroom issue is about the survival of the Republic. The Texas trans mayor of the aptly-named town of New Hope, pop. 640, appeared on CNN to argue for tolerance.
But then there’s Bangladesh.
In the same Bangladesh where bloggers’ lives are at risk, police confiscated a πέος used in a fake sex-change scam. A Bangladeshi family claimed that it had harnessed the powers of a djinn, who had intervened to change the sex of their fifteen year old daughter, who was now their son. The djinn had even kindly arranged to perform a circumcision, in accordance with both Islamic and Jewish traditions.
Villagers flocked to the family and their djinn with pleas for help with medical and marital problems. Crowds amassed and disorder developed: the police became aware of this unusual addition to the health care system and dispatched officers to investigate. The officers took the new trans man to a physician, who determined that the girl had hidden what the Spanish call a consolador tied to her waist under her clothes. The girl and her family were arrested and charged with fraud. The distraught villagers would have to seek medical care from allopathic physicians after all.
The frightening aspect of this story is how easy it was for the family to fool people. In the Gregorian year of 2017, a man in Bangladesh could announce, “a djinn changed my daughter’s sex” and people believed him. Not only did they believe him, they rushed to his home to obtain favors from the djinn. It is easy to discount the villagers as naive and uneducated, but is this really so different from the struggle against #fakenews?
Imagine if you were a lawyer tasked with defending the family. Wouldn’t your first defense be, “how could anyone believe this nonsense? How can this possibly be fraud?” The only way that these acts could constitute fraud presumes the existence of djinn that perform medical miracles.
In a way, the family was lucky to be charged only with fraud. If the πέος had turned out to be real, if they in good faith had attempted to command djinn, they might have been charged with sorcery instead. There is but one penalty for sorcery under Islam and that is the same penalty suffered by too many bloggers in Bangladesh.
This article was first posted to LinkedIn, a family-friendly, SFW site. Thus, I have used the Greek term πέος above instead of the English word. The graphic shows the ruins of an ancient temple in Indonesia dedicated to πέος worship. The source for this story is https://tribune.com.pk/story/1320628/bangladesh-family-arrested-fake-penis-scam/. Republished at:
Man on a String, Michael Wolfe, Houghton Mifflin, 1973
The Alleys of Eden, Robert Olen Butler, Henry Holt 1981
The Sympathizer, Viet Thanh Nguyen, Grove Atlantic, 2015
Thirty-five years after a haphazard evacuation from Saigon, In August, 2010, the United States declared the Iraq war over and moved its troops south to a friendlier Kuwait, still grateful for its rescue from Saddam years earlier. Vietnam, if not an ally, was now a friend. The war called the "American War" in Vietnam was but a distant memory. The United States had lost battles, but until Vietnam it had never lost a war.
It is said that only generals can make peace. Nixon's path to an "honorable" peace detoured past the Watergate. After the Paris Peace Accords were signed in January, June 1973 was the last month anyone was drafted. The war was now in the hands of the ARVN, the Army of the Republic of Viet Nam. Between the North Vietnamese Army and Saigon were Richard Nixon, Henry Kissinger and their willingness to use B-52's. Then Nixon was out and Gerald Ford his timid replacement who asked Congress for authority to backstop the ARVN. Congress said no.
In case of an evacuation, Bing Cosby's "White Christmas" would be played over and over on the Armed Forces Radio and Television Network. In April, the ARVN crumbled, the NVA headed to Saigon and after nearly twenty years Bing sang.
History makes literature. Published in 1973, Michael Wolfe's Man on a String sets his story in the interregnum between the U.S. drawdown and the full pull-out in 1975. He tells the story of Michael Keefe, a military cameraman from the Midwest who decided to stay in Vietnam as a stringer for a news network. The network had fallen on hard times--no one wanted to hear about Vietnam anymore--and Keefe is forced to resort to black market dealings in order to stay alive. When these fail, he is made an offer by Colonel Xe, a Vietnamese officer who had once fought the French but now was allied himself with the South and more importantly, greed. Keefe's mission takes us through the terrain of a decaying war into a Papillon-like journey into hinterlands that, due to their isolation, have become a refuge from the war. But there is no refuge for Keefe--he must go back. Wolfe's writing brings the end of war to life.
Robert Olen Butler's first, almost forgotten but Pulitzer Prize winning novel is about an American deserter who stayed in Vietnam after the collapse of the ARVN. The deserter speaks Vietnamese, has a Vietnamese girlfriend and lives on the economy, far from the paradise of the military commissary and PX. He somehow escapes, makes it to California and hooks up with an antiwar group who, in those days when driver's licenses bore no photographs, provide him with false papers. While the deserter is back in what the GI's called "the world" it is clear that Vietnam has never left him. Deserter or not, even for those who returned from Vietnam it was a one-way trip.
Fast forward forty years. The children of the Vietnamese exile, educated in the United States, Australia and elsewhere, speak and write English perfectly. Mindful that concentrating refugees in one area creates political instability, as had happened in Florida, the U.S. had resettled Southeast Asian refugees throughout the United States. Cambodians are assigned to Minnesota and Chicago.
The U.S. military recovers its honor in the operation against Grenada; a small war put together to make sure that our soldiers still had the mettle shown by both sides during the Battle of Gettysburg. The Grenada success led to the invasion of Panama, an action that violated our Treaty of Neutrality with that country but so what? George Bush 43 needed a war. Even though we invaded Panama we were already there: the 193rd Infantry Brigade was stationed at Ft. Clayton, across from the Miraflores locks, the first set of locks on the Pacific side of the Panama Canal.
After those two "wins" Vietnam was increasingly seen as an aberration. Not every team can be the 1972 Miami Dolphins. Every now and then you take a loss; hell, even the Russian hockey pro's lost to a U.S. collegiate pick-up hockey team. We were back on.
Gulf War I came in 1990. Paying close attention to Deng Xiao Ping's opening to capitalism with a Chinese face and the benefits it brought the northern People's Republic, the Vietnamese government turned slowly towards freer markets.
America has once again become a warlike place. Peter Jennings worshipped at the feet of the war god Mars with a paen to the launch of an armed cruise missle towards a country that was one of the few that accepted refugees from our war in Iraq, echoing Maykovsky's "a racing motorcar is more beautiful than the Winged Victory." Of Thrace, that is.
Wolfe writes that "whenever a convoy stopped the earth opened up and fruit vendors and others selling goods appeared." Wolfe presciently noted also that in the Vietnamese highlands, all sorts of produce grows. Wolfe was not the only one. The Vietnamese planted coffee and if they could not beat Colombia on quality they could on price.
Soon businessmen of all sorts were traipsing back and forth to the renamed Ho Chi Minh City, led in the main by the sons and daughters of those who fled in 1975 but who preserved their five tone language. Business travel became so common that the front-page of the Wall Street Journal noted the disquiet of Vietnamese-American wives who did not accompany their husbands on these business trips.
There is an American experience of the Vietnam war, and there is a shared Vietnamese-American experience of the postwar period in America. The Vietnamese struggled, as do all immigrants, with the language, with becoming successful, with earning a living without the contacts that smoothed day to day life in the homes they could not return to.
There has been no great novel of the Cuban diaspora. I am not sure why this is the case. There are certainly many talented writers, in English and Spanish, who could have produced such a work. Unlike the Vietnam diaspora, the Cuban diaspora never lost hope that next year there would be a return to Havana.
There may be potholes in the streets of Miami, but who cares? The future lies in Havana, in Camaguey, in Cardenas, in Santiago, in the municipios that Florida lawmakers strangely kept alive. There was euphoria when Fidel died, as if the community knew collectively that "ya viene llegando" and that return was just around the corner.
The Vietnamese refugees of 1975 knew that there would be no return. Though they could not take a minor southern city like Miami in the 1950's, they started coalescing in neighborhoods in places like Los Angeles; their neighborhood came to be known as Little Saigon. There are more than a million and a half people of Vietnamese descent living in the United States.
Forty years after the fall of Saigon, the Pulitzer Prize winning The Sympathizer, was published. The novel is really three books, not one. New York publishing's prejudice against the novella shines through. Let's be generous and call the book a triptych.
In the first panel, the war is ending and a Vietnamese general much like Wolfe's Colonel Xe gets out and decides to settle scores in Los Angeles. The war is over, Americans don't want to hear about any of it, but the general held the power of life and death over his men and dreams of leading an army back to liberate Vietnam.
The second panel is about the making of a Hollywood film (think: Apocalypse Now) about the war and stands independently, as does the third panel which documents a man's effort to go back to Viet Nam on a rescue mission only to be captured and imprisoned by the VC who were never the VC at all, but who are now the country's masters.
The first panel of the triptych is the most interesting, for except in a few rare instances, such as the discrimination against Vietnamese-refugee fishermen in such places as Texas and Alabama, the stories of the postwar Vietnamese have been decidedly under the American radar. The Sympathizer resurrects the memories of the escape of Saigon and those early years building lives in a new country.
Not to read Wolfe, Butler and Nguyen is to forget that time when war brought nothing but shame.
It is a lesson forgotten today. Don't overlook these books.
A few notes: (1) the mention of the 193 Inf.Bde. at Ft. Clayton is called, "going off on a tangent." According to the Treaty of Neutrality Concerning the Panama Canal, the United States pledged not to interfere in Panama's internal affairs. If a full scale invasion designed to remove that country's leader doesn't constitute interference, then what does? (2) Vietnamese as spoken in the north has six tones; the southern variety has five. Since reunification, linguists have noted a certain amount of blending. Vietnamese spoken in the United States for the most part retains five tones. The paragraph concerning the lack of similar work from the Cuban diaspora doesn't really fit in, but in this case I decided not to take Warhol's advice and let this "darling" live.