31 August 2009

In-house counsel briefing out

In an interesting interview by Law.com of Ken Massaroni, General Counsel at Seagate, Massaroni says:

Q: Other than IP litigation, what other kinds of matters do you typically send to outside counsel?

A: Pretty much all of our litigation -- including HR matters and commercial contract disputes -- goes to outside counsel.

Q: Approximately how big is Seagate's corporate law department? Has there been a recent trend in terms of either reducing or expanding the size of the law department?

A: Our department numbers approximately 50, including both lawyers and non-lawyer staff. Seagate has recently gone through some reductions, and the legal department was affected by that.

Q: What kinds of matters that you deal with are more efficiently and effectively handled in-house rather than by outside counsel?

A: There are a whole host of activities that I think are better handled by inside attorneys and that are also accomplished on a more cost-efficient basis. Those would include all of the counseling on HR matters, all general corporate matters and the negotiation of commercial contracts, to name just a few. These are the kinds of things where inside attorneys can work closely with our clients to the point where we understand the issues to a degree that would be impossible for outside counsel to achieve on anything like a cost-effective basis.

I see several reasons for briefing out:
  • too much work and not enough lawyers
  • insufficient expertise internally
  • doing the work would be a poor utilisation of in-house lawyers
In-house counsel are uniquely placed to spend time getting to know the company's real business. Law firms will tell you they can do the same thing, but they can't. It follows that in-house counsel should do the work that requires that intimate knowledge, and it's only the other work that might be a candidate to send out.

Briefing out litigation is a good example of the last point - litigation is rarely part of core business (even if you're an insurance company) and your in-house lawyers have been hired on the basis of how they fit core business needs.

Litigation is also an example of the second point - a property company doesn't need to employ experienced litigators, because litigation is (hopefully) infrequent.

As for the first point, it seems that many large organsiations brief out about 60% of their legal work. That implies that the working hours of in-house lawyers are largely of their own choosing, since they could easily double their workload (and hours) and still not get all the legal work done. Therefore an in-house lawyer needs to decide what is an appropriate workload for his or her life.

12 August 2009

Cyberspace September 2009

Watch out

I recently received a letter from "Domain Renewal Group" inviting me to renew my domain name with them. However, my registrar is a completely different company. On closer inspection it was actually an invitation to switch to them as my registrar and renew for $45 pa. However, I actually use GoDaddy, and I pay $12.75 pa. The letter also invited me to purchase a related .info domain for $75 for 2 years. GoDaddy sells .info domains for around $1. DRG is well known across the internet for these sorts of letters, and the letters are vaugely similar to those sent in 2003 by Domain Names Australia, for which it was sued by the ACCC (FCA v 926 of 2003). Moral of the story? Read the fine print (speaking of which, was literally 1mm high on the back of the letter).

Windows 7

As a Microsoft Technet subscriber I am now using Microsoft's latest operating system, Windows 7 on my main computer. It works well, even with old programs, seems to be as fast as Windows XP, and offers more security against malicious attacks. But should you upgrade when it's released in October? Don't upgrade existing business systems running Windows XP. Wait until you need to refresh your hardware and your new systems will have 7 pre-installed. Having said that, make sure you test all your software and confirm with your suppliers that they will support their software under Windows 7. Windows Vista users might be more interested in upgrading, as it is very likely that anything that runs on Vista will run on 7, and 7 is faster than Vista on the same hardware. The same warning about testing applies though.

Working online

I recently wrote about ways to save a lot of cash and use better systems when setting up a new office by using software (and telephony) as a service, rather than installing and maintaining your own software and hardware. I've also written about online wordprocessing using Google Docs or Zoho. Microsoft has just announced it is going to offer a similar online system which will allow you to access your Word, Excel, PowerPoint and OneNote files from anywhere. You'll be able to use the full Office applications (and this will be the main way you use it in the office), as well as less powerful versions in the web browser and on mobile phones and other devices. There will be a free but advert-laden version and a paid subscription. The latter may even be sufficient for many small businesses who don't use the complex features in Office.

Around the courts

Remedies, particularly in Trade Practices cases, can be inventive. In ACCC v Harvey Fresh (1994) Limited [2009] FCA 853 the Court ordered that the unsuccessful respondent publish a specified statement on its home page that was viewable immediately upon accessing the web site, include its logo and be at least 40% of the "images on the screen."

In Sands V Channel Seven Adelaide Pty Ltd & Anor [2009] SASC 215 the court considered the defamation common law defence of fair and accurate report where the publication ocurred on the Internet. This was an important point, as at the time South Australian legislation provided no statutory protection. The court held that the common law defence did apply to the Internet. Another interesting remark was that:
There is no presumption of law that there has been substantial publication in respect of an internet publication. It is for the plaintiff to prove that the material in question was accessed and downloaded. In this case there has been no “platform of facts” proved by the plaintiff from which an inference can be drawn that substantial publication of the website article occurred within South Australia.
The moral? Don't forget to subpoena or seek discovery of the web server logs!

Cyberspace August 2009

Learn it or lose it

The USA (land of the free, home of the armed) has a lot of case law in relation to electronic discovery. A large proportion of that relates to costs, and the recent case of Chen v Dougherty (USDC No. C04-987 MJP http://www.ediscoverylaw.com/uploads/file/Westlaw_Document_Chen.doc) is interesting because a lawyer had her costs reduced to USD$200/hour "for certain time spent on discovery... (as her) inhibited ability to participate meaningfully in electronic discovery tells the Court she has novice skills in this area and cannot command the rate of experienced counsel." On one level that is a fairly obvious conclusion - a junior lawyer or someone operating outside his area of expertise can't claim high rates, but "inhibited ability to participate meaningfully" suggests that the modern lawyer needs to engage in understanding technology just as much as the law.


Netbooks are very popular at the moment, and for good reason. This column is being written on my original Asus eeePC 701 (7" screen) which provided sterling performance around Asia and Europe last year. A member of the senior bar also contacted me and recently took his around Greece and Bulgaria. We both used Skype (http://www.skype.com) over Wi-Fi to make phone calls on it cheaply and easily. I'm convinced that these netbook computers have a long term place in computing history, due to the portability of the device (under 1kg) together with cheap 3G within Australia and wireless when overseas. Not only was it a very cheap phone using Skype, it also offered storage for our camera cards, listening to ABC streamed radio, Google maps, ticket purchasing, tourist attraction research, hotel bookings and more. Many of the more recent netbooks have a 10.1" screen together with more storage, power and battery life making them easier to use. However, I think that they won't be as useful unless they can remain comparable in size and weight. The 3G data option, using a dedicated card or USB device, is a good one as you can buy 1GB of data per month for under $14 if you look around. Sitting up the back of a lengthy Registrar's list might become a lot more productive.

An even more portable device I have come to appreciate is the iPod Touch (http://www.apple.com/au/ipodtouch/). With a headset or clip on microphone (http://www.macally.com/EN/Product/ArticleShow.asp?ArticleID=171) it becomes a VoIP phone using Fring or provider-specific applications such as Skype or Pennytel. It offers very good phone call quality on a wi-fi connection. If your computing needs are light, you could just travel with the Touch as it offers email, calendar, contacts, Google Maps, web browsing and entertainment whenever you have a Wi-Fi connection. I'll be in NZ shortly, and I suspect the Touch will be enough rather than my eeePC.

Maintaining lists

Managing lists of things is often a problem, because doing it in Microsoft Excel or Word is cumbersome and inherently single-user. Microsoft SharePoint (an add-on to Windows Server - http://sharepoint.microsoft.com) might be a solution for you. Although I recently wrote a blog post about why I don't think SharePoint is a viable document management system, I do think that SharePoint is great at maintaining lists. My company maintains a number of lists such as those for document executions, bank guarantees, and safe custody. SharePoint has improved the way we do that, and we are gradually moving more data over to it. Benefits over Excel include multi-user, drop down menus for data consistency, avoidance of accidental changes, sorting and filtering. Since it's web-based you don't need to have any extra applications on the PC, including Microsoft Office.