No Surprises, Please!
California Lawyer

No Surprises, Please!

April 2012

As the Silicon Valley-based general counsel for a midsize public company, I am responsible for every "legal" thing that goes on in my organization worldwide. And since this is my third gig as a GC, that means I have a lot of experience running into surprises. Sometimes they're pleasant ones. Sometimes they're not. And sometimes they're a little bit of both.

I remember one situation several years ago that fell into the third category. Three companies were involved, and to protect the guilty as well as the innocent I'll refer to them here as companies A, B, and C. It also involved an engineer I'll call Z, who created something of a problem when he left company A to join company B.

That's when counsel for company A contacted counsel for company B claiming that Z had copied all the work he did while at A and brought it with him to B. Company A's counsel was sure of himself and very aggressive: Unless company B immediately agreed to a series of onerous demands, company A would launch a very expensive and fast-moving lawsuit with a TRO. Counsel for company B needed to move quickly.

Company B's investigation soon confirmed the allegation. But just when things were looking hopeless, the investigation turned up another critical fact: Before Z worked at company A, he had worked at company C, a very large tech enterprise that dwarfed both companies A and B. And, as it turned out, when he left company C he'd done exactly what he did when he left company A - copied all his work onto CDs and took it with him to his new job. Needless to say, this was a very pleasant surprise for company B since any lawsuit by company A would now very likely bring down the wrath of company C. The result: Counsel for company A suddenly became much more reasonable, and the matter was resolved without a nasty, and very public, lawsuit.

I really like that story. But for me, being in the middle of that sort of excitement isn't very appealing. In fact, when a reporter once asked me what I most wanted from my outside counsel, the advice I gave was: Don't surprise me.

At the time, I had been thinking about a recent board meeting at which one of the outside attorneys I worked with raised a legal issue that he had never discussed with me. Imagine my surprise! And though I was able to get through that meeting without looking like a complete idiot, I was very unhappy. After the meeting he and I had a conversation that was very unpleasant (at least for him), and we put the incident behind us. We still have a great relationship, and he remains one of my most trusted outside advisers - especially now that I'm sure he'll never do that again.

Surprises also tend to be unpleasant when they arise from questions that should have been asked but for whatever reason weren't. This brings me back to an experience I had decades ago as a young litigator (my first career). It involved one of those thankless tasks that young lawyers are often stuck with - document production for a grand jury subpoena. This was, you understand, during the dark ages before e-discovery.

As part of the job, another young lawyer and I had to work closely with the client representative whose responsibilities included the transactions that were the subject of the subpoena. We worked with him for weeks to go through his department's files and track down files from other departments that might be relevant. When we were finally done, sitting in his office, talking and joking about how painful the whole process was, a strange look suddenly came across the client representative's face. He reached down and opened a large drawer in his desk that was crammed full of files. Turning to me and my colleague he asked, in all sincerity, "You guys didn't need to make copies of the documents that I work with every day, did you?" What a near-miss that was!

Now, so many years later, I'm still telling my colleagues that what I worry most about on the job is what I don't know. With emails and videoconferencing, a tremendous amount of information is constantly flowing to me. All of that is helpful. But it is not enough.

Every time I travel to one of our offices or attend a conference, I pick up valuable bits of information from colleagues over lunch or coffee, or just by bumping into someone in the hallway. The serendipity of these informal encounters has convinced me that personal contact gives me the best chance to learn both what I need to know and what I need to ask to do my job well.

It's not that I have anything against emails or videoconferencing. It's just that I hate surprises.

Rich Gray is the Silicon Valleybased vice president and group general counsel of Spirent Communications.

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