Sterling Miller is a highly experienced General Counsel, Corporate Secretary, and in-house attorney. He is currently General Counsel of Marketo, a marketing automation firm. Sterling is also the author of the highly-regarded Ten Things You Need to Know as In-House Counsel blog and author of the book Ten Things You Need to Know as In-House Counsel: Practical Advice and Successful Strategies.
Given your experience as in-house counsel and given the rise of technology and its impact upon the legal industry, what is your take on the use of technology within in-house legal departments?
I think it’s great. The use of technology to improve services has long been part of business everywhere. The fact that it has taken so long for it to catch on in legal departments does not reflect well on in-house lawyers. I think part of the reason is lawyers, generally, aren’t comfortable with technology, at least in the role of first adopters. We’re pretty good with using technology that has been around a while. The exponential increase in the use of technology in legal departments over the past few years bodes well for in-house lawyers. First, it means we are catching up with the business side of the house in terms of using technology to improve performance. Second, it means in-house lawyers are getting more comfortable with technology and are starting to want to be first in adopting it. And, third, it provides a pathway to “doing more with less” which has always been more of a buzzword than a reality. Technology, however, gives you the tools to make it a reality. I am especially excited to see how the use of artificial intelligence over the next five years plays out for in-house lawyers. For the first time, there is a way to get drudge work done at low cost and high speed and high quality while freeing up in-house lawyers to do more of what is really needed: analysis and counseling. I think we should change the name to “augmented intelligence” because that what’s really happening.
What skills do you see lawyers needing beyond the standard legal toolkit?
I think basic business skills are sorely lacking, especially in the in-house world. In that world, Legal solves business problems using their knowledge of the law. It’s difficult to solve a business problem if you don’t understand how businesses work. The language of business is numbers. You need to know how to speak numbers. Can you build a budget, do you know how to read a P&L, Cash Flow statement, a balance sheet? Do you have a grasp of cost-benefit analysis, or probabilities – how to create a decision tree for example, or set up a game theory exercise? If not, you are probably unable to provide all the value the business needs from an in-house lawyer. Secondly, you need to develop your “practical” skills. If you are not giving practical solutions, the business will tune you out quickly. Practical solutions mean you must be a good judge of, and are comfortable with, “risk.” If you can only sign off on zero risk, your career may be shorter than you’d want it to be. Lastly, I would say you need to know how to communicate well, both in writing and in-person or on the phone. Don’t forget the human touch. One phone call can resolve the problems caused by 25 back-and-forth emails.
What has been the biggest challenge you have faced in our career working in-house?
Back in a prior job we got hit with two antitrust lawsuits, plus a Department of Justice investigation. I can easily debate the merits of each, but the one thing you cannot debate is the huge cost arising from defending cases like this in terms of money, time, emotional well-being, and distraction. In civil antitrust cases, the damages are tripled. So, any damage number the plaintiff comes up with will get dramatically bigger should you lose. Meaning, if there was ever a bet the company type case, this was it. Or, I should say these were it. One antitrust headache is horrible. Three make you want to quit and take up landscaping. I did not have a day off – including weekends and holidays – for over two years. I would go to bed thinking about the 1000’s of people who could lose their jobs if we lost these cases. Not a pleasant way to try to fall asleep. Fortunately, we got through it and came out fine. But, I never ever want to go through something like that again.
What was the impetus behind you starting your ten things blog?
I retired from my former general counsel job in late October 2014. We had just gone through a successful IPO and after 20 years at one place, I was fortunate enough to have the option to go try something different. I was speaking at a conference about a week later and afterwards, there was a cocktail hour for the speakers and the attendees. Several young in-house lawyers came up to me and started asking questions about what it took to be a successful in-house lawyer. I came up with a handful of things there on the spot and they started writing them down. That’s when the bell rang. If anyone was going to write down my thoughts about what you need to know as an in-house lawyer, it should be me. When I started, I hoped that 100 people would follow the blog. I am getting close to 3,000 today which just blows my mind. I think the one things that truly distinguishes “Ten Things You Need to Know as In-House Counsel” is that I try to write very practically, stuff you can really use in your day-to-day practice. At least that’s what I hear the most from people who write to me about the blog. A lot of legal materials out in the world read like the writer is shooting for a Harvard professorship. No one wants to read that.
What do you see as the biggest challenge in-lawyers face today? How would you advise them regarding that challenge?
I think it’s the age-old problem of not enough money or resources to get to everything. There is always way more to do than you have time or money to deal with. So, the first thing you need to learn is to accept this premise and just learn to live with it. Then you need to learn how to prioritize and how to delegate properly. My to-do list has three things on it to start the day. Those the most important things I want to try to get done today. A list of 50 things-to-do is kind of useless because I would never get to all of those things in any reasonable period of time and I probably will spend more time updating my to-do list than actually doing work. That’s why a list of three things works so well. Once you learn how to prioritize, then you need to learn how to truly delegate. Delegation isn’t simply pushing your work onto someone else, it’s a systematic way of training people to handle work for which you are not the best person to handle. Give me a smart person with some ambition, and you can make two people very happy – me because I have moved low value work off my plate, and them because they are learning new skills and getting new responsibility which makes their job fun and interesting. That’s also the key to retaining people – different work and more responsibility. When you are good a delegating, pretty soon you have a team of uber-capable in-house lawyers, paralegals, and admins. That team can get way more done then you alone trying to save the world.
Legal innovation is close to becoming a buzzword. How would you define it?
To me, the mistake is to think of innovation as technology. Technology is great and certainly is part of innovation, but the real meaning of innovation is not being afraid to try something different or do something in a different way. The status quo is the enemy here. Just because you or your department have done something one way for a long time, doesn’t mean that’s still the best way to do it. It might mean new technology, but it can just as easily mean a new process, or new faces, or new clauses in contracts. I remember once a good while back, I was general counsel of an online travel company. We got complaints from one of the groups in the business that our contracts were “too long.” The easy thing would have been to say, “Sorry, we’re Legal and this is the way the contact has to be.” Instead, we set up a half-day meeting with the head of that group and his team and we went through the contract section by section. We explained why the provisions were there and why they were needed, and they told us what sections gave them problems when negotiating with customers. From that session, we were able to write a shorter, more customer friendly contract that Legal felt good about and the business now had invested themselves in. They were much more likely to try to stick to the provisions during negotiations because they helped draft the contract and they understood why the language was needed. So, we innovated the contract, without technology, and everyone was happy.