CCBJ January 2023 Edition

Corporate Counsel Business Journal

January 2023

VOLUME 31, NUMBER 1

Legal Operations

2023 Top Trends

KATIE JOHNSON AND KIM RADEK SIT DOWN WITH CCBJ TO DISCUSS HOW THE C-SUITE FULLY EXPECTS GCS AND LEGAL OPS TO PLAY A MORE PROMINENT PART IN STRATEGIC DECISION-MAKING AND RISK MANAGEMENT ACROSS THE ENTIRE BUSINESS.

INSIDE

Rolling with the Pandemic and Beyond

Problem Solving by Connecting the Dots

Insights from the World of Professional Hockey

AND MORE!

Kristin Calve EDITOR & PUBLISHER

Austin Waters GRAPHIC DESIGNER/PRODUCTION MANAGER

Neil Signore SVP & MANAGING DIRECTOR OF EVENTS

Jennifer Coniglio VP FOR EVENTS & SPECIAL PROJECTS

Matthew Tortora SENIOR DATABASE MANAGER

Katie Mills

In This Issue

The participants in the CCBJ Network demonstrate, through their many contributions, their unwavering commitment to the advancement and success of corporate law departments. The engagement and support of these “partners of corporate counsel” assure we continue to develop and distribute the news and information this unique and sophisticated audience relies on to meet the evolving legal

needs of their organizations.

POSTMASTER: Please send address changes to Corporate Counsel Business Journal, 104 Old Kings Hwy N., Darien, CT 06820; by emailing info@ccbjournal.com; or by calling 844-889-8822.

The material in this publication contains general information, is not intended to provide legal advice and should not be relied on to govern action in particular circumstances. The sources of material contained in this publication are responsible for such material, and any views or opinions expressed are solely those of the source.

Problem Solving by Connecting the Dots

CCBJ: For starters, what led you to start Kona Advisors?

Bruce Werner: I spent the first part of my career in our third-generation, 80-year-old family business, Werner Ladder Company. We had a good run. But our markets changed in the late 1990s and we decided to sell it. We made the right decision, at the right time, for the right reasons. When I left the business, I took some time off, did some entrepreneurial things and, one day, I got a call from a corporate attorney friend of mine. He said, “I’ve got a client with a problem and I don’t know what to tell him. I’m a little bit embarrassed. I need to do something to help him. Would you have lunch with the guy?” And I said, “Sure.”

I listened to his problem and said, “Well, that’s not very hard. I can solve that for you.” And he hired me. I printed up some business cards, set up a website, and became a consultant. It took off from there. I look for interesting problems to solve, while working with people worth spending time with. Almost all of my business comes from warm referrals. Almost all of it is through attorneys, primarily corporate attorneys and to a larger extent estate attorneys. Some referrals also come from bankers and accountants. But most of my work comes through the legal profession.

Why don’t we backtrack a little bit and talk about your family business and how your role in the company contributed to your consulting expertise.

I’ve been out of the business for 20 to 25 years and I’ve seen hundreds and hundreds of other companies. And what I’ve come to realize is I was fortunate to have a great family business. It was the perfect training ground to learn how businesses run. The example I always give is when people think about what makes a business great, they think about its functional silos. “They have a great sales guy” or “a

great marketing person” or “a strong CFO.” I had a lot of assignments that required me to work across functional areas, and I determined that a business is like a house. It has bricks and mortar and everyone looks at the bricks, which are the functional areas—sales, marketing, engineering, HR, finance—but it’s really the mortar that holds everything together. And if you don’t understand how the mortar works, things fall apart.

So, to get really big things done in business, you have to be able to connect the dots. We were an engineeringintensive company and I’d sit in a board meeting and

 Helping private and family-owned businesses owners achieve their objectives

a house.

mortar. Everyone looks at the bricks, but it’s really the mortar that holds everything together.

we’d have a conversation about the properties of certain plastics that we used to engineer parts. And the cost of the plastic. And the product liability issues of a plastic part versus a metal part. You had to be able to stitch all that together to know what was going on. So, when I say it’s really all connected, it was that experience which gave me that lens, that point of view.

Now when I look at business situations, I look at what’s being presented by the client, “I have a sales problem, I have a capital problem.” But I also look at what’s around it and how it all gets stitched together because if you really want to move the needle for the client, you’ve got to look at the whole situation. If you don’t ask the right questions, you can’t get the right answers. Clients usually start with a narrowly defined problem. The nature of the things I work on impact the entire enterprise, not just one area. My most common question is “how do we double the size of your business?” So, if we push in one area, like a little bubble of mercury, you need to anticipate and address the implications of that push for other parts of the business, because if you don’t you’re not going to achieve the true objective.

Having a highly effective board is important. But dovetailing with that is a directors’ understanding that their role is governing, not running, the company.

There’s a couple of pieces here. Let’s break it down. First, let’s distinguish governance of a family-owned business from governance of businesses generally. If it’s a familyowned business, you need a family governance system that’s separate and apart from the business governance. Without that, the business side doesn’t get clear direction; family issues complicate the business issues and the two need to be decoupled. Family governance is

a whole area of work in itself, so let’s leave that one aside for the moment. On the business governance side, the key rule for board members is “noses in, fingers out, sensors on” which means, you ought to be sticking your nose in to ask insightful questions to reveal issues, but you don’t put your hands in to fix the problem. “Sensors on” means you should be looking for areas of trouble before the trouble starts.

As a director, you’re not part of the executive team, even if you got there because you were a successful executive who could run a P&L. There’s a necessary transition from being a great CEO to being a great director. It’s a different skill set, a different persona. And if you’re used to driving a P&L it feels very unnatural to do the analysis, arrive at an answer—and then purposely sit on your hands and do nothing. I do a lot of work educating boards and staffing boards. Picking people who can make that shift is important. There’s a whole art and science to how to recruit directors. But it can’t be ignored because for a board to be effective, it needs to be staffed right.

Good boards are good by design. It’s not, “I’m going to pick my three best friends.” It’s, “What do we want this board to achieve? What are the skills and experiences required to do that?” Each seat should have a designated purpose. We need a marketing person, an M&A person, a tech person; that’s the typical nomenclature. Then it’s the responsibility of ownership to say, “Here’s what I want you to work on.” Good boards work on issues that are three to five years out. If you’ve got a crisis, of course you’re in crisis mode. But otherwise, the board should be anticipating what’s coming and plan accordingly.

Oversight, strategy, capital structure, management succession and risk management are the five things boards do. The management succession piece is particularly important as it takes a few years to groom successors, not just for the CEO, but also their direct reports, which requires thinking one or two layers down because as you move people up, you create a vacuum. And we all know that nature abhors a vacuum. So boards are in large part about the future.

A business is like

It has bricks and

What is your advice for owners or organizations considering forming their first board?

I do a lot of work with people forming their first board. Often times it starts with owners just being a little bit stumped about some issues and their friends say, “Hey, you ought to go form a board” and they decide they need one, but don’t really know what it is. While that’s a normal way of getting started, it’s not the most effective way. I often explain about designing a board, and setting ownership directives, or “What’s ownership concerned about?”

For private companies, the owner and the CEO are often the same person. But those are two different hats. So which hat are you wearing when you make a decision? Let’s use your owner hat. The business is an asset. You own this asset to achieve certain goals in life. Yes, you need to pay the bills and put the kids through college. But bigger than that, what’s your ownership strategy? This is something I talk about in my new book. What do you want

to achieve in your life because of your business? Consider also that you can always make more money but you can’t make more time. When you’re younger or the business is newer and you’re struggling to survive, that’s not a relevant question. But I see owners, usually in their early 50s and maybe they’ve been in business for 20 years— who, having achieved some measure of success—start asking life’s bigger questions.

They still have decades ahead of them, but it’s more than just paying the bills. So I go back to, “Well, what do you want this business to do for you?” And the four key components of ownership strategy are how do you want to spend your time, achieving financial security, defining your legacy (because one day you’re going to sell or leave the business) and taking care of the people who made you successful.

Companies ordinarily start to think about a board when they’re in the 25 to 30 million dollar revenue range. They’re growing and so they can see the problems ahead, but they

have a fairly small management team without the necessary depth, and they need more help than can be provided by another 60-hour-a week employee.

Boards are well suited to provide that advice and experience. If you want to have a really effective board, you begin by connecting the dots. You have to start with, “What do we want to achieve? Where’s the business? Where are the owners in their life cycle? What are the key issues? How do we design and staff the board accordingly? How do you run the board to stay on point for solving those issues?” If the owners don’t really know what they want, then you have to start there before moving forward. Because to just get a bunch of smart people in a room without clear direction isn’t a good use of time.

Tell us about your book!

The name of the book is Your Ownership Journey. You can find it at www.brucewerner.com. (Not very surprising there.) When I started consulting 20-plus years ago, a friend said, “If you’re a consultant you have to write a book. That’s what consultants do.” And I thought about it and said, “Well, it seems like a lot of work and I don’t have anything to say so I’m not going to do it.” Of course my friend was right. Fifteen years go by, I accrued more experience and started to have things I wanted to say, so I started writing columns to find my voice. I write a column for forbes.com and another, targeting the legal profession, for financial poise.com.

I’ve been doing that for five or six years. The more you write, the more things come into focus. I started to form opinions and theories about the ownership journey and things having to do with owning private and family businesses. One day I said, “You’ve written 40 or 50 columns, what do you have?” I took all these columns,

spread them out on the table, shuffled them around, found I had the arc of a story and said to myself, “Well maybe I have a book in me after all.” And so the book came to be, with the help of a great publisher and editor who specializes in working with consultants.

The book focuses on the issues a private company owner faces over the life cycle of ownership. It starts out talking about ownership strategy and how that leads into developing a business strategy. Once you know what you want as an owner, you then need a business strategy to help you achieve your ownership strategy. And once you have a business strategy, you need capital and talent to drive the business strategy. There’s normally some M&A involved.

There’s certainly conflict management, and there’s questions of governance for your business, hence the board work. A lot of private company owners never buy or sell a business until they sell their own business. So they actually don’t know how the game is played. So we talk about M&A. There’s a chapter on family business. And towards the end of the book, I talk about how, as you move through the life cycle, you think about the fact that eventually you’ll die or retire, and that you get to choose one but not the other. So as people start to think about the latter part of their career, it comes back to what do I want to do? How do I want to live? What should I do with the business?

The last chapter is about life after selling a business or passing it to someone through succession planning. I have seen too many people with great business careers who walk away with a ton of money but then they’re unhappy because their whole identity was wrapped up in the business. They don’t have a lot of hobbies and may struggle to get out of bed in the morning. That’s no way to spend the last decade or so of your life. So I talk about getting ready for the last chapter of life, because that takes a couple of years to prepare for. It’s about spending your last years with “no regrets” and how you plan ahead for that. The book walks through all of that, with lots of real-world examples. (The names, of course, have been changed to protect the innocent and the guilty.) I’ve gotten some nice feedback from readers, so that’s appreciated. 

It’s not about getting the right answer, it’s about asking the right questions that matters.

Front

Judicial Hellholes: Georgia Is Hot

Thanks to a $1.7 billion verdict against Ford Motor Co., along with several other “nuclear verdicts” – verdicts topping $10 million – Georgia has grabbed the top slot in the annual list of “judicial hellholes” from the American Tort Reform Association. Debra Cassens Weiss, a senior writer for the ABA Journal, tells the tale. The verdict, which is being appealed, arose from a wrongful death suit filed by the family of a couple killed in a rollover wreck blamed in the suit on allegedly defective truck roofs. Weiss quotes a press release in which the president of the American Tort Reform Foundation blasts the verdict as “riddled with ethically questionable events and severely biased court orders.” One key reason cited for the high verdicts in Georgia, according to Weiss, is a statute that allows plaintiffs lawyers to use “anchoring” tactics, which drive up jury awards. In addition to Georgia, the foundation named seven other judicial hellholes: Pennsylvania Supreme Court and the Philadelphia Court of Common Pleas; California; New York; Cook County, Illinois; South Carolina (asbestos litigation); Louisiana; and St. Louis. (See chart on this page.)

#1: GEORGIA Nuclear verdicts are bogging down business and third-party litigation financing is playing an increasing role in litigation. The Georgia Supreme Court issued several liability expanding decisions in 2022 and placed the onus for reform on the Georgia legislature.

#2: PENNSYLVANIA The Pennsylvania Supreme Court continues to promote forum shopping and eliminated an important rule governing the filing of medical cases. The Philadelphia Court of Common Pleas, with most of the state’s nuclear verdicts, is a preferred court for mass tort litigation.

#3: CALIFORNIA Baseless Prop-65 lawsuits thrive in courts and the volume of litigation skyrockets. Small businesses are weighed down by frivolous Private Attorney General Act, Americans with Disability Act, and lemon law suits.

#4: NEW YORK California and New York battle it out for the most “no-injury” consumer class action lawsuits and the most claims under the ADA, and New York is seeing a surge in nuclear verdicts driven by “anchoring.”

#5: ILLINOIS Cook County, is a magnet for “no-injury” lawsuits stemming from the state’s Biometric Information Privacy Act and consumer class actions, with an overwhelming percent of nuclear verdicts in the Cook County trial court.

#6: SOUTH CAROLINA The consolidated docket for the state’s asbestos litigation has a reputation for extraordinary pro-plaintiff rulings, many driven by a Texas law firm that has helped make the state a hot spot for asbestos claims.

#7: LOUISIANA Coastal litigation continues to drain state resources and judicial misconduct runs rampant across a state where COVID-19 litigation not permitted elsewhere thrives.

#8: ST. LOUIS Junk science is permitted in St. Louis courts, which have a history of nuclear verdicts, and courts allow “phantom damages,” which renders St. Louis a favorite jurisdiction for asbestos litigation.

SHORT TAKES: Nuggets from

Privilege Case Causes Concern

Adam Shaw, a partner with Boies Schiller Flexner, writing for Bloomberg Law, worries that protecting privileged communications may get much harder in the not-too-distant future. “For the first time in 40 years, in In re Grand Jury, the US Supreme Court will set the standard for when legal and business communications are covered by attorney-client privilege, which is central to the everyday work of in-house counsel. “Corporate counsel play significant legal and business roles and regularly create communications that contain both legal and business advice. It would be burdensome and futile to try and keep those roles and purposes separate.”

What, When & Why Tech

In this piece from the Law Society Gazette of England and Wales, Mike McGlinchey, head of client consulting at Pinsent Masons Vario, Glasgow, discusses legal tech in a very practical way, noting that the growth of tech is sprouting new problems as the number and variety of products becomes overwhelming and the perception that technology is always the answer takes hold. To wrestle tech issues to the ground, McGlinchey suggests grouping them by focus area (e.g., knowledge management, risk and compliance, contracting, spend management) and try color coding to show the capabilities you have, the capabilities you need, and the benefits to be gained.”

ESG: Today’s Boardroom Hot Potato

In a recent BDO survey of 250 public company directors, well over half of respondents said ESG oversight is the lookout of the Nominating and Governance Committee, while a mere 13% said they have a separate ESG Committee. According to TheCorporateCounsel,net, this means that other standing board committees increasingly find ESG landing on their plates – whether that makes sense or not.

SEC Ratchets Up Enforcement

In this piece from TheCorporateCounsel. net, Dave Lynn, a partner with Morrison Foerster, looks at the SEC’s 2022 enforcement activity. “[I]t should come as no surprise that overall enforcement activity at the agency was up in the fiscal year that ended September 30, 2022,” writes Lynn, noting that the agency’s 760 enforcement actions – a 9 percent increase over the prior year – included 462 new actions, 129 actions against issuers delinquent in their filings, and 169 followon administrative proceedings to bar or suspend individuals from certain functions in the securities markets.

Automatic Writing

Can tech transform legal writing?

Absolutely, says Ross Guberman, founder of Legal Writing Pro, which helps attorneys and judges write more effectively, and the developer of BriefCatch, a legal editing software tool. He elaborates in an interview with the ABA Journal. After years running legal writing workshops, Guberman’s clients convinced him to automate his writing tips and techniques. That led Guberman to develop BriefCatch, which attempts to walk the line between quality and efficiency in legal writing by using tech to scan an entire document and applying 12,000 rules to it in just seconds.

Teaming Up for Diversity

Onit, which provides enterprise workflow solutions, and JusticeBid, a minority-owned diversity analytics and outside counsel selection provider, have joined forces in a strategic technology alliance to provide tools to improve the diversity of outside counsel and other vendors. The idea is to provide clients with a better understanding of their diversity climate and help them find new diverse options using JusticeBid's outside counsel selection platform. This, say the folks from Onit and JusticeBid, can significantly save in-house time and money.

Former Chief Counsel for Senate Majority Leader Chuck Schumer, Reggie Babin, Joins Akin Gump

Former PNC Chief Counsel Jon Mooney Joins McGuireWoods in Pittsburgh

Thomson Reuters Completes Acquisition of SurePrep, LLC

Epiq expands in Brazil, provides tech-enabled solutions for eDiscovery, litigation, and investigation services

Weil Advises Advent International on its $6.4B Acquisition of Dual-Listed Maxar Technologies

Tina Dorr Joins IP Practice in Atlanta with Barnes & Thornburg

SCCE launches new Sports, Compliance, and Ethics Conference in 2023

Onit Bolsters CLM Solution With AI-Enabled Risk Analysis Dashboard and Key CRM, ERP Integration to Drive Efficiency Across Enterprise Business Operations

Casey Lucier Returns to McGuireWoods After Serving on House Jan. 6 Committee

Virginia Attorney General Mark Herring and Deputy Solicitor General Martine Cicconi Join Akin Gump to Co-Lead Nationwide State Attorneys General Practice

Adrian Cartwright elected new Senior Partner at Clifford Chance

OpenText Partners with Allstate Identity Protection to Webroot Helps Protect People’s Digital Lives

Healthcare Partner Jason Schultz Joins Barnes & Thornburg in South Bend

Thomson Reuters and Blackstone Sign Definitive Agreement to Sell Shares of London Stock Exchange Group plc to Microsoft

Epiq Announces

Partnership with Fortune 200 Technology Company to Provide International Shipping and Office Services Solutions

CobbleStone Software

Introduces CobbleStone® Auto-Redline for Streamlined AI-Based Contract Negotiations

Clifford Chance advises Cinven on completion of its sale of Tractel to Alimak Group AB

Epiq Launches EpiqFAST, a new courtroom speech-totext platform

Former Treasury Department Leader Laura Black joins Akin Gump in CFIUS and Outbound Investment

Weil Advises Ardian on the Approximately €700M Financing of a Majority Stake in Neopharmed

Thomson Reuters Signs Definitive Agreement to Acquire SurePrep, LLC

Contract Logix Launches New Artificial Intelligence in Contracts (AI) Capabilities to Help Businesses

Accelerate Digital Contract Transformation

American Arbitration Association Names Angela Romero Valedon, Esq. as Miami-Based VP Managing Commercial Arbitration Services in Florida

Level Access Partners with Contentful to Help Brands Create Inclusive Digital Experiences

Required Reading

Too busy to read it all? Try these books, blogs, webcasts, websites and other info resources curated by CCBJ especially for corporate counsel and legal ops professionals.

SURVEY: HBR Consulting

According to Lauren Chung, chief practice officer and survey editor at HBR, there is a fundamental reassessment underway at many corporate law departments. Looking at the data from HBR’s 2022 Law Department Survey and info from 200 companies culled via its Sounding Board series, law departments have adopted a more intense and conservative focus on law firms’ annual rate reviews, becoming more cautious, as economic uncertainty has swelled. For example, in-house lawyers are planning to tighten up on acceptable rate increases, which has them grudgingly enforcing promotion-only bumps, among a dwindling number of other measures.

ARTICLE: Global Legal Post

This piece, from Global Legal Post, features a thought experiment from Anthony Widdop, global director of legal operations at Shearman & Sterling. “If you are a leader in an in-house law department with the benefit of a blank page,” he asks, “would you redesign your function as it is today. Widdop is convinced that this challenging and uncertain environment – he calls it a “burning platform” –creates a golden moment to make the case for serious change. Any corporate law department, he believes, can identify quick wins and major initiatives by thinking outside the box. “While there will always be opportunities to optimize staffing, GCs should look beyond headcount as the only lever to demonstrate value,” he says. “After all, we know that cost is not a strategy.”

OPINION: Bloomberg Law

Taking a tag-team approach, Evisort’s Memme Onwudiwe and Credit Karma’s Tom Stephenson make the case that having a law degree is a wildly overrated prerequisite for legal operations jobs. “The need for JD after someone’s name is less important than the role’s requirements,” Onwudiwe and Stephenson say. “Just because a position is within legal pedagogy is not a reason to prefer a lawyer over a subject-matter expert. Legal operations professionals have a unique opportunity to emphasize the importance of designing and implementing a business solution ecosystem to guide greater efficiency and decision-making.

Contributors

Thanks to the law firms, technology companies, alternative legal service providers, management consultants and other supporters of corporate law departments who share their insights and expertise through the CCBJ network. Your participation is appreciated.

Rick Burton is the David B. Falk Professor of Sport Management at Syracuse University. He is the former commissioner of the Australian National Basketball League and was chief marketing officer for the U.S. Olympic Committee for the Beijing 2008 Summer Olympics. His columns appear regularly in Sports Business Journal and Sportico. He is the COO North America for Playbk Sports.

Liz Carter, Esq. is the Senior Vice President of the East/Central Region of JAMS. Carter oversees regional operations for Resolution Centers located in 11 states, as well as JAMS Canada in Toronto. Carter works to identify and create new business opportunities and is actively involved in marketing and practice development initiatives for her region. She works closely with JAMS Global to implement international business development initiatives in her North American markets.

Simon Hems is an international dispute resolution and insurance recovery lawyer, predominantly focused on, and experienced in, international arbitration governed by the principle institutions, such as ICC, LCIA, ICSID, DIFC-LCIA Arbitration Centre, LMAA and ad hoc under UNCITRAL Rules. Simon has also handled matters at all levels of the English court system.

Katie Johnson is the Vice Chairman and Corporate Counsel at CSM Group. As the Vice Chairman and Corporate Counsel, Katie leads the organization’s strategic planning efforts, evaluates and monitors the organization’s operational and strategic risk, and oversees Human Resources, Marketing and IT for the organization. Katie has held this position since January of 2022. Previously, Katie served as the General Counsel to CSM Group from September of 2020 to January 2022.

Gina Miller has become an expert in mediation and arbitration practices since joining JAMS in 1989. As vice president, she oversees operations for JAMS Resolution Centers in California, Washington, and Nevada, and is responsible for creating new business opportunities and overseeing the implementation of regional and national marketing initiatives. She is the chair of the regional advisory committee, which works to enhance panel recruitment and overall panel relations.

Norm O’Reilly is dean of the Graduate School of Business at the University of Maine and a regular columnist for Sports Business Journal. He is minority owner of the Toronto-based marketing agency T1, with clients including Nike, UFC, Pepsi, Nissan, and Esso/Exxon.

Kim Radek is Director, Global Legal Operations at Koch Companies Public Sector, LLC (KCPS). In her current role, she is responsible for driving legal operations throughout the legal enterprise including process improvements, implementation of transformation and innovation efforts and resource optimization. She joined the Koch companies in 2014 serving as the Legal Operations Manager and Paralegal at Koch subsidiary, Molex, LLC, a global electronic component and solutions company. Kim holds a Bachelor of Arts in Political Science from the University of Illinois, Chicago and a Paralegal Certificate from Roosevelt University.

Mark Thompson is the Founder and Managing Director at Epeus, an independent project risk management and advisory firm which helps energy leaders tackle complex capital project risks, so they can protect their profits and secure their reputations. Before founding Epeus, Mark worked as a Project Manager for Transocean.

Bruce Werner has a specialty in working with family businesses, both as an advisor and as a board member. His governance experience includes forming new boards and serving on established boards, both advisory and fiduciary. He has performed audit, governance, and compensation committee work. In the nonprofit world, Werner has served as board chair and worked on governance, nominating, strategy, compensation, finance, and investment committees.

Clifford Chance advises on US$155 million Colombian TGI tender offer

Smarsh and Exterro Announce Partnership to Optimize the E-Discovery Process and Reduce Costs of Key Cycles for Legal Teams

SCCE & HCCA Welcomes Meric C. Bloch and Judith W. Spain to Its Board of Directors

Onit and JusticeBid Announce Strategic Alliance to Help Companies Improve Diversity of Their Outside Counsel and Other Vendors

Weil Seeks Money Damages for Prisoners Whose Religious Freedoms Have Been Violated

Level Access, in Collaboration with G3ict and IAAP, Releases Annual State of Digital Accessibility Report

Epiq Launches Regulatory Risk Insights™ to Uncover Actionable Insights about Potentially Illegal Corporate Activity

Funds Practitioners Tim Becker and Wells Miller Add Strength in Tax Offering with Akin Gump

DISCO Launches Collect For Slack, a Unified Cloud-Based Solution for Legal Teams to Manage and Preserve Slack Data

OpenText partners with MAD Security to improve response time to cyberthreats and shrink the attack surface

American Arbitration Association Revises Arbitration Rules & Mediation Procedures for Healthcare Payor Providers

Soo Y. Park Joins Barnes & Thornburg In Los Angeles

Pulse

Rolling with the Pandemic and Beyond

to make sure we’re giving them what they want and sometimes what they may not yet even know they want. We make sure we’re ahead of the game. It’s all in furtherance of helping our clients resolve disputes, either through mediation, arbitration or some other form of alternative dispute resolution.

CCBJ: To start off, can you share a bit with our readers about your respective roles with JAMS?

Liz Carter: Okay, I’ll start. Gina and I are the heads of operations for the company. I’m based in New York and I oversee mostly the Midwest, from Chicago and Milwaukee down through Texas, as well as the East Coast. Our roles overlap and are very similar, so I’ll let Gina fill in anything I forget. We oversee the day-to-day operations of all of our resolution centers; panel relations, as it were. We work with our talent development to make sure our associates (those are our employees) are trained and that any HR issues are dealt with. Then there’s client service. We interact with our clients

Gina Miller: I cover California, Washington State, and Nevada. To add to what Liz said, we also serve as the company JAMS ambassadors, serving on legal boards for bar associations, including participating on webinars and podcasts. We oversee the national client experience and we co-chair the National Operations Committee where we work with several of our colleagues throughout the organization to keep a pulse of company policies and update them as necessary. We’re part of the strategic initiatives for the company. And we’re the ones responsible for monitoring adherence to JAMS service standards. Anything from day-to-day operations to our having a really strong hand in a practice development initiative for the organization.

 JAMS’s client service goes virtual as Liz Carter and Gina Miller share their experiences during the COVID-19 pandemic.

LIZ CARTER & GINA MILLER JAMS

JAMS operates 28 resolution centers across North America, and each of you oversees large portions of that. How do you work together to ensure that JAMS client service and offerings are national and cohesive?

Miller: So for me, and I think I speak for Liz as well, it’s easy because we respect each other and we contact each other almost daily. Most often we are in sync with everything that goes on in the organization within our realm of responsibility. And our JAMS “culture,” which I was going to talk about a little bit further into the discussion, is that the mindset of all the associates in our organization is to do good and provide our clients with a quality experience.

As for ensuring cohesiveness, this is especially challenging as we entered the next new normal of hybrid work. We’re continuing to hear cases virtually and we are noticing an uptick in in-person hearings. We’ve definitely had to change our mindset in regards to delivering client service. We recognized that we needed to have a specialist to oversee our client experience initiative; we now have a national client experience manager who provides us with an unbiased understanding of our strengths and helps us identify opportunity areas.

Liz Carter, Esq. is the Senior Vice President of the East/ Central Region of JAMS. Carter oversees regional operations for Resolution Centers located in 11 states, as well as JAMS Canada in Toronto. Carter works to identify and create new business opportunities and is actively involved in marketing and practice development initiatives for her region. She works closely with JAMS Global to implement international business development initiatives in her North American markets. Reach her at ecarter@jamsadr.com

How do we define client service?

and regular standards and that they’re being followed. Our talent-development team also works closely with our associates to make sure that we’re delivering the same service across the board. It’s never a hundred percent because our Dallas clients may expect something different from our Los Angeles clients. So sometimes there’s regional, or even local, differences with respect to small things, such as the food the clients eat or the drinks they want in the fridge or the way they interact with our case managers. But our goal is to make sure that whether you’re walking in the door of a JAMS office, or getting on a Zoom call with a JAMS moderator and a JAMS neutral, that you’re getting the JAMS experience no matter the location.

Miller: It’s even before you walk in the door. Because we know there are differences, we endeavor to ensure that we’re meeting our clients’ expectations. The teams have come together and created what we call a “tech check” to ensure that the clients have what they need to connect with us. To reduce any kind of technical problems, we contact our clients before their actual hearing starts. Collaboration is customary at JAMS. Our teams, even though they’re on different coasts, serve on committees together and work on initiatives together to ensure that these things happen.

Carter: We also, in addition to having somebody oversee the client experience, we also have a committee of managers on the ground that meets regularly to talk about some of the things that we’re doing in the offices to make sure that there’s consistency

Carter: At JAMS we have people who have been at the company for a long time in various roles and in various locations. We also have new people that bring their own experience from other companies. So the cohesiveness doesn’t just kind of happen because we’re lucky; it’s the people we have in the organization and the experiences that they bring.

You both began your careers at the manager level within regional resolution centers. Can you talk a little bit about what inspired you to stay with JAMS and how your career has evolved?

Understanding that a client’s needs will change and making sure to change along with them.

Miller: I started as what, at that time, was called a “client coordinator.” I was a junior in college at the time, so it was a very entry-level position. I continue to enjoy being part of a company that helps people to resolve the most complex disputes, whether it’s a business dispute or a personal dispute—is so interesting and JAMS is so encouraging that it quickly became more than just a job.

The work is fulfilling and I like working with people who generally care about doing the right thing. I also had a few senior managers who invested in me; encouraged me to go get an MBA; mentored me and has supported my growth and development. There’s no place that I would rather be. We care about our clients and helping them move on with their lives. Anytime anyone says to me, “Wow, you’ve been at JAMS a long time. Tell me more about that,” I say it’s because this is not just a job; it’s where I feel like I’m actually giving back and helping people resolve something that’s not going well in their lives. The JAMS culture is what keeps many of us dedicated to JAMS. I am fortunate to work with many wonderful talented, caring and intelligent people, including my counterpart, Elizabeth “Liz” Carter, the president, Kim Taylor and our general counsel, Sheri Eisner.

Carter: My journey is a bit different. I came to JAMS 15 years ago as the manager of the Chicago office. I had practiced law before that so I understood ADR, but didn’t know the first thing about case management. But I succeeded because of my team. They taught me everything that I needed to know. The people who worked with me taught me everything I needed to know. Our panel of mediators, arbitrators and other ADR professionals also helped me learn the business. I shadowed the cases; we’d sit and debrief. They’d come into my office at night and tell me about their cases and even ask, “What do you think?” So it was really rewarding that way. It was intellectually satisfying. And if you’re curious, you’ve got just some of the smartest people in the legal profession working with you.

And then I stayed because number one, our mission, like Gina said, is helping people, resolving disputes, doing good. But even if the mission is great, if the co-workers aren’t, it doesn’t matter. The people at JAMS make the company; there’s just a feeling of mutual respect, deep friendships, caring, learning.

People like Gina; the president of our company, Kim Taylor; the operations professionals on my team; the other people on our senior management team. That’s why I’m still here. Everybody cares so deeply about what we do and we care deeply about each other. So it makes the tough days worth it, but the tough days are fewer than the good days.

Miller: I think it’s true that people are most fulfilled at jobs where they work with people who are supportive and that work well together. Anybody who stays at a job that long, that’s one of the priorities. And the tenure of the associates at JAMS, the last time I checked, was over 10 years. People who come to JAMS usually stay at JAMS. Then there are those who leave because we’ve inspired them to go to law school, so now they’re clients.

Talk about what you’ve learned about client service since joining JAMS and how your personal or organizational approach has shifted over the years. There’s a lot of stuff that’s packed into client service for an organization like yours.

Carter: I guess what I’ve learned over the years about client service is that you really have to step out yourself when thinking about what client service is. You always have to be thinking from the perspective of the client. So what we’re doing more of now—and the pandemic probably forced us to make 15 years of advances in a matter of months because we had to figure out how to operate a business that was in person 100% of the time to one

Gina Miller is the Senior Vice President of the West Region of JAMS. Miller has become an expert in mediation and arbitration practices since joining JAMS in 1989. Miller oversees operations for JAMS Resolution Centers in California, Washington, and Nevada, and is responsible for creating new business opportunities and overseeing the implementation of regional and national marketing initiatives. She is the chair of the regional advisory committee, which works to enhance panel recruitment and overall panel relations. Reach her at gmiller@jamsadr.com .

that was virtual 100% of the time to one that is functioning in a hybrid capacity and with respect to each, how to make that worthwhile and effective for our clients. As mentioned, we hired somebody whose whole job is to figure out what the client experience is and make sure that we’re delivering. We’re always asking ourselves what do our clients want, what do they need and how do we deliver the service.

We’re also cognizant of things like technology. While we pride ourselves on being a very personal business—our case managers are very, very skilled at their jobs; know a lot about the services we offer, the neutrals, our geographic locations, our international capacity, our rules, etc.—we also recognize that clients don’t always want to talk to us. In fact some want to do everything electronically. So we have to know when that is and how to deliver that service at the same level as when they would call us. We’ve had to be really agile and adept at figuring out, “Oh, this client only emails so they never want me to call them.” Or how do we make a Zoom mediation or a hybrid Zoom mediation effective when the mediator and one party is there in person but the other party isn’t. How do we make sure the person on the screen feels invested in the process? That’s all part of the client experience. And those are things that three years ago we didn’t have to necessarily think about but then things changed literally overnight, and the clients didn’t even necessarily know what they wanted.

Miller: We’ve always been very thoughtful in our approach to client service. We frequently discuss client feedback. My mindset is , “Think about if you were in the client’s shoes. How would you want to be treated?” How do we best communicate with them? I’m very proud of our shift from in-person to virtual. Our learning curve was almost immediate. The way we were able to adapt, pivot, adjust to a new way of serving our clients, I never could have imagined how quickly the entire organization was able to do that. Not only for us to equip ourselves to do that and do it well but also to handhold our clients to make sure that they could still do business with us. It’s not the same client experience, obviously, because we don’t see them as often as we did before, but we want them to feel like JAMS is still there, still cares, is still available, and is still responsive to all their needs.

Carter: And it’s not just the associates who’ve made this shift. It is our panel, which is comprised largely of retired judges and lawyers who throughout their careers had extensive technological support. They had to literally learn overnight how to conduct a proceeding that had been up close and personal over a computer monitor. Of course now we’re seeing hybrids and back to in-person but when you think about it, it is crazy that in an organization with 400-plus neutrals and 300-plus employees, everybody figured out how to go from completely in-person to completely remote; how to resolve some of people’s biggest legal disputes, including weeks-long arbitration hearings, without leaving one’s home.

Miller: We’ve also considered what our associates may be missing by not having that in-person face time with their colleagues, supervisors and clients. One thing we do encourage associates to take advantage of Microsoft Teams, Zoom, etc., to have that face time with their manager, a colleague or the neutral that they’re supporting. We’re thinking about different ways to engage so you don’t lose some of that in-person experience. It’s not a hundred percent the same, but it’s the next best thing and people have adjusted to that.

Can you speak to the principles or values that drive your client services ambitions at JAMS?

Miller: One of our core values is to adapt quickly to the customer’s demands and the customer’s needs. That’s how I would define good client service: understanding that a client’s needs may change and making sure to change along with them. Another is being available to our clients.

Carter: Mediation sessions or arbitrations are clients’ only opportunities to have their stories heard, whether it’s a business dispute, a personal injury problem, a family law issue or an employment matter. And every time we do an associate survey, they talk about how important providing excellent service it is to their job satisfaction. Because they know what a big deal it is.

When everything they do is geared to making sure to give clients the best experience during an extraordinarily stressful period in their life—a period made worse by the pandemic—it became even more important to our associates to do it well. 

Legal Operations 2023 Top Trends and Best Practices for General Counsel

KATIE JOHNSON & KIM RADEK CSM GROUP & KOCH COMPANIES PUBLIC SECTOR, LLC

 Katie Johnson and Kim Radek sit down with CCBJ to discuss how the C-Suite fully expects GCs and legal ops to play a more prominent part in strategic decisionmaking and risk management across the entire business.

internal market intelligence to be able to utilize internal resources more or possibly better outside counsel leverage volume in ways that we weren't able to before. For us, it’s definitely more of an internal market intelligence and how we're using it now, but how we want to use it even more.

CCBJ: Market

Intelligence

can be looked at in many different ways. How do you see it?

Kim Radek: As I thought about this question, and the definition of market intelligence, it could be a lot of times external factors. I think for Koch, being a large company that we are, our legal capability has depending on the day 350 individuals in it globally, so we look at a lot of market intelligence more internally. Koch, as its own market or like I said we're a very diversified company and several different types of industries and so we use all of our data internally to help us make decisions. I don't think we're currently using it enough, but we will get there eventually.

I think for us, it's important to know that we've been on our own journey in the last several years. We've undergone a lot of transformation which now allows us to be able to leverage our internal market data. We used to sort of operate more as individual legal departments and have been working more “borderless-ly” across all of our legal departments. We’ve been able to utilize people skills and talents, no matter which Koch company they're employed by.

I'll give you an example of one way that has helped us leverage our own market intelligence. We recently brought together most of our people that sit in the EMEA region into one team where previously they were in separate teams, so we're actually able to use some of our spend data, where previously maybe someone in a legal department would have gone to an outside counsel, not realizing that they had a peer in another Koch company that could have offered the counseling and advice that they needed. We are using that

Katie Johnson: Being in the construction industry, we're really leveraging the market intelligence and watching it very closely for our clients. We have a lot of products that are delayed and hard to get like concrete or HVAC units and our schedules and our contracts are all based on timeline, so we have to leverage that to inform our clients of what's going on in the marketplace and set up our contracts to be successful knowing what's happening.

Talk about the key performance indicators you use to deploy your strategy that best support the success of your business operations and spend management.

Radek: Prior to 2018, we were not even able to get spend data across the entire Koch enterprise. Some Koch companies had an e-billing matter management system, and some did not. One of the things we needed to do to start thinking about all of our legal departments as one capability was to be able to grab all of that data in one place, and so we did implement SimpleLegal in 2018 and had all of the legal departments come into that, so all of the vendor data and all of those invoices are coming into one system, which now allows us to actually have KPI's across our whole Koch enterprise.

We're continually evaluating KPI's to use. We use probably what is the generic list of things for all companies, really looking at how can we go outside the box, think about other ways we can be slicing and dicing our data. I’ll name a couple of things here. For us, it was really important because we are so large to be able to look at things at a high level across Koch, but also within each operating company. Companies that are more visible to people like Georgia Pacific is one of our co-companies and so we wanted to

be able to seed it by co-company which also has lots of divisions within each of those co-companies.

We're doing things like what's our spend by practice area, sub-practice area, in each region by the co-company. We have a panel of law firms. What's our spend panel versus non panel within each of those categories? What are our top ten matters and what's the spend related to that? Who are top ten vendors? What's our spend by matter lead? Which attorney is leading the matter on our year over year spent? We did try to gather some data at matter close and have found that it hasn't been super useful but continuing to find ways to get at some data on performance of our firms.

We also do internal allocations at Koch. We don't keep time, but we're directionally correct in how we build back our businesses, and so we also add an element of our internal allocations overlaid with our matters and our spend. One

thing that we've also done in the last couple of years is add tiering to our matters. Not in all practice areas, but in some of them, sort of looking at the risk to Koch, what’s the value and level of complexity tiered those matters, so we're looking at by tier, what's our spend related to that and just making sure that we've had that calibrated the right way. Are we spending the most on our most complex riskiest matters and the least on those lower tier matters that don't have as much risk? It’s an ongoing process that’s never done and we need to all get better at KPI's and look at what we're not thinking of and what is beyond what everyone is tracking.

Johnson: We have a less sophisticated system to manage this, but we do manage our year over year spend. One of our biggest costs is software. So that's something that we're constantly looking at, we have. Created in the past two years, really a pretty strong strategic road map that walks us through and we meet quarterly to look at these KPI's

to measure them to see what we're doing. And as the year end approaches, we're also reevaluating all of our spend and that's you know across the board throughout all our departments as well.

Talk about the trends you anticipate for improving matter management and how you collaborate within your division and also with your business units to monitor and communicate the status of active matters.

Radek: When we first moved all the companies onto one e-billing matter management system, we very much were focused on the spend part of that and less focus more on the matter management. What has been nice for us is the custom attributes allow us to be able to sort of configure the e-billing matter management tool to allow us to sort of shift more into matter management. Spend is important but what are those matters that we have? What jurisdictions are they in? Improving matter management also means about putting the right people with the right work. Do we really need to have an attorney managing all of our matters? Can it be managed by a paralegal or a legal specialist or an analyst?

We have our data from our e-billing manner management system as well as other systems feeding into dashboards. We are constantly looking at that for our trends and continuing to look at it. We utilize those dashboards when you ask about collaborating with our division and business units. All of our attorneys have clear lines of sight with the general counsels of the Koch companies as well as business attorneys within each of those companies and the business leaders as well. They're utilizing all of the data that we're feeding into our dashboards from our various tech solutions that we utilized in legal and have sort of real time access to things like spend or matter trends across all of our practice areas, so it's always open communication since we are such a large group, we have some centralized specialty areas like all of our litigation, M&A, labor employment, those groups sit together and make sure that they're communicating

with the Commercial Council, Business Council out in our operating companies as well as those GC's and their business customers as well, so it's really just about making sure that data that's available is open to everyone and that they are communicating in ways that they always have.

Johnson: For us in the construction industry, our matter management is different. We're not dealing with litigation or matters like that, but we have huge projects for building several hundred million projects for our clients, so it's keeping all of that information in one spot. We use a system called Procore that is really instrumental and allows our clients, our trade contractors that we use on each of the job sites and work with to have all the information into one spot and we are working with Procore to establishment a new system where we can do all of our documentation and emails amongst the team and it will be all documented in Procore. For US, communication is huge and we're still in the age of we're doing a lot of emailing back and forth with our trade contractors or with the architects and engineers and now for us to bring all of this into one system in which we can have documentation is pretty exciting.

Which tools do you use to manage the various dashboards that you have?

Radek: We have an IT group within legal ops. Koch has an overall IT group, but it's very nice to be able to have that because I know a lot of our audience members do not have IT within legal ops and are working with and liaising with their own IT groups that have lots of other priorities working with other functions as well and so we have set up API’s that pull the data from various tools. SimpleLegal is our e-billing matter management tool and we're pulling from that.

We also use Power Apps for our Microsoft Office 365 Shop. Power Apps is a workflow tool that takes in data. It can be an

intake for using data from there, so all of these APIs dump the data into a warehouse and that warehouse is where our Power BI dashboards are fed from. It also is pulling from ServiceNow as an intake plus the Power BI’s and then we're recently changing our contract management systems and so it will also pull from there. It was important for us to create it a warehouse but then all of these disparate systems are feeding data into that then we can pull from for our power BI dashboard.

Johnson: We use Power BI as well and each of our departments and execution teams have a Power BI Dashboard with information that feeds in on a corporate level. We also use the software called Align. This helps us track our day-to-day activities and feeds into the KPI’s that we're working on for each quarter as well.

Are there additional trends that you anticipate for improving your matter management and how do you collaborate within your division and business units to monitor the communication and status of activity between the active attorneys and the other executives within the capacity of the group.

Radek: For us, one thing that we're looking at even more that we can be doing in matter management is how we can use alternative legal service providers more. We are really about putting the right people with the right work regardless of their background and so are there pieces of work and can we be having more. I mentioned the experiments we're doing where we have low risk sort of litigation matters. There is an opportunity for even higher risk matters to be managed by legal professionals that aren't attorneys in our labor and employment space, we're starting to have a team that responds to EEOC allegations just go ahead and do mediations and negotiations instead of turning that part of the case over to an attorney.

For us, we must continue to see what is the work that really

needs to be done by an attorney in House versus not and making sure we have the right skill sets there. I think that tiering system will help us with that also. How do we get this sort of rolling at the firms? We don't always need the most senior partner to work on matters. Are we calibrating the right risk with our matters even on the firm side as well? We've just started talking about that actually last week we had our panel firms all together in a large meeting.

As far as the collaborating with our division business units, our general counsel's rights sit on leadership teams within each one of those operating companies. The business unit attorney leaders below them also participate in those leadership meetings, so there is always open communication, and it's not just on active matters. They are counselors to those business units and those divisions about legal things and non-legal things. They're a leader within their own rights and speak up and collaborate in things beyond what we would call legal matter as well, so there is constant communication there.

Johnson: We really rely on our HR professionals to handle HR related concerns and they come to the legal department when they have questions, and we can support them and reach out to outside counsel when necessary.

The same is true with our projects and our field execution staff. They are the ones who are the experts in the field, and they oftentimes are going to know more than we do both especially about their specific projects. We work to educate them on their client contracts with specifics of that contract but rely on them every day. The other attorney and I, we also do at a 10-minute huddle every day with our executive team to make sure that we're all on the same page about the matters that are happening every day.

To hear the rest of this exclusive interview, check out ccbjournal com/video 

Insights from the World of Professional Hockey

NORM O’REILLY & RICK BURTON NATIONAL HOCKEY LEAGUE

 In Business the NHL Way: Lessons from the Fastest Game on Ice, authors Norm O’Reilly and Rick Burton borrow a page from Moneyball.

CCBJ: Can you briefly talk about yourselves and why you wrote this book?

Norm O’Reilly: I’m the dean of the Graduate School of Business at the University of Maine and a professor of sport management there. Rick and I have been writing together for over 15 years, including currently a regular column for Sport Business Journal (SBJ). We’ve co-authored a number of academic articles and three books. Business the NHL Way is our most recent effort. During COVID we had time on our hands and we reflected on the idea of doing a book that’s very different from anything we’d done before. It’s really in the Moneyball ilk—actionable insights through data analytics.

The National Hockey League is an enormous financial success story. They’ve grown their revenues to nearly six billion dollars under a commissioner who’s been a stalwart leader for three decades. We really wanted to see what we, as business and sport management professors, could learn from the sport that’s had unbridled business success, and to share that with industry professionals, entrepreneurs, corporate people, owners of companies, etc.

Rick Burton: I’m the David B. Falk professor of sport management at Syracuse University, where I have been since 2009. One of the things that makes Norm and me interesting as academicians, and also as authors, is that we’ve actually lived out in the business world that we write about. Norm is a partner in a thriving agency in Canada called T1, and I was the commissioner of a professional basketball league in Australia as well as the chief marketing officer of the US Olympic Committee for the Beijing Summer Olympics. So any topic we work on together we keep in mind how our writing can apply to a practitioner as well as a student, faculty member or administrator. We’re trying to combine considerable research with a real-world perspective, having lived it out on the mean streets.

Talk to me a little bit about what makes professional hockey so translatable to the business world.

O’Reilly: Hockey is a game that’s fast, exciting, still relevant to Millennials and Gen Xers, and growing. It’s also got a global footprint—maybe not at the level of a soccer, basketball or mixed martial arts, but right behind them. In fact, we predicted a number of years ago that hockey could pass Major League Baseball as the number three sport in North America. In short, there’s a lot of upside potential.

We felt there’s really a lot we could learn from the sport: around brand and leadership, business model dynamics and innovation, and some of what they’ve done to reach into new markets. There are a lot of stories, the Southern US being probably the greatest example of how a non-hockey playing area with no hockey culture or background has come to be home to vibrant NHL franchises and hundreds of thousands of kids playing the sport, with a really exciting growth trajectory ahead of it.

Burton: You may be thinking that football, basketball and baseball are bigger and asking yourself, “Why they would pick hockey?” Part of the reason is that Norm and I are both of Canadian heritage and we both played it growing up. But mostly it’s the nature of play.

In football, only half the players play at a time. They will play offense, and the other half of the team will play defense, and they are not out on the field at the same time. Also, only two or three players ever come in contact with the ball. In baseball, your nine starting players generally will play the entire game, but when a team is on the field, all nine are out fielding, but then they all come in and sit in the dugout and only one of them bats. In basketball the five players that start the game generally play the majority of the minutes, and the bench players don’t really play much at all.

What’s wonderful about hockey is that if you make a roster, you’re going to skate a lot of minutes, every game, all the time. The average NHL shift—meaning the length of time that a player is on the ice—is only about 52 seconds. And then that player will shift off the ice and a new player will

come on. But 52 seconds later, that player will shift off, and another one will come on, and they will rotate like that for 60 full minutes of play. It requires a different kind of camaraderie, bonding and commitment to team that we found fascinating.

What has the NHL done that other leagues have failed to capitalize on?

O’Reilly: It’s probably more accurate to say they’ve been first movers in some areas. One that we talk about in the book is Las Vegas. All the major North American sport leagues have been eyeing Las Vegas for a number of years. It’s grown faster than any other Western city in recent years. It’s an attractive place, a tourism mecca and there are a lot of very wealthy individuals there who could be potential owners. There’s the links to the casinos and shows, and plenty of relatively inexpensive flights to and from the city. But while the other leagues hemmed and hawed, the NHL moved very quickly, were the first in there; and got a great foothold. The Vegas Gold Knights are a great story.

We also talk in the book about copycatting. What the NHL has been brilliant at is looking at what other leagues are doing. Fifteen years ago the NHL lost an entire season. No

Stanley Cup was awarded because of a lockout. The collective bargaining led to a complete resetting of the league and how it operates. The players lost as much as a billion dollars in salary that was not paid out to them. The owners, for their part, didn’t collect any revenue. So what did they do? They looked at the NFL which, in terms of profit, is unquestionably at the top of the heap. They looked at their model of revenue sharing, their collective approach to performance, how they make sure all the teams are competitive year over year—competitive balance, we call it—and they copied that strategy. They were very, very smart to look at other models out there and adapt—at huge risk—and that has led to 17 years of incredible business success.

Burton: What’s important to note is framework or context. The NFL is a much bigger league, but the game is not played worldwide; in fact, it’s played in very few countries. Baseball is also bigger (at the moment) and has somewhat of a global footprint, but it’s been in and out of the Olympics in the past two decades., and while it has great strength and traditions, younger demographics appear to find the game, which averages three hours and ten minutes, slow.

Basketball, on the other hand, is a true global titan. The NBA has been spectacular at making the game visible and attracting players from all over the world—and we

think the NHL has some of that same thinking going on. (Commissioner Gary Bettman started his sports career at the NBA before moving over to the NHL.) Look at the NHL’s growing popularity in Scandinavia and Northern Europe, and how it’s starting to come into its own in China and Korea. There’s a lot to like about how the NHL has seized opportunities to grow its value, from the Olympics to the World Hockey Championships.

The NHL has $5 billion in revenue. Are its lessons applicable to those who aren’t running large businesses?

Burton: We wanted this book to work for those running businesses of any size—or even working as an employee. What we saw with the NHL was that regardless of the amount of revenue the league does or the teams generate, there’s value in peering inside an organization showing really notable growth, then asking what someone who, say, owns or works at a tool-and-die shop can learn from how the NHL operates and its players conduct themselves. There are a lot of ways to use topics common in the game of hockey and then to extrapolate concepts from there.

For example, fighting is not unknown in hockey. In fact, it’s a part of the game. While there are penalties, it has not been outlawed. While there is no tolerance for physical fights in the workplace, conflicts are commonplace. We talk about conflict on the ice, where things are oftentimes settled with fists, and then translate that to the employee in an accounting firm that can’t stand their coworker in the adjacent cubicle. We give readers a new way of thinking about how to manage or resolve the conflict. That’s just one example where we get away from the issue of revenue and size of a business to a more common issue bedeviling the workplace.

O’Reilly: Another example would be the “Veterans Matter” chapter, which has implications for a lot of the talent challenges business owners and managers, particularly at smaller organizations, are facing. While the NHL’s revenues are $6 billion, after paying players’ salaries there’s not a lot left for staff. Moreover, the NHL is made up of 32 clubs which, taken individually, are small to medium-size enterprises—another reason our book is applicable to the small business operator.

Burton: So here’s our thought on veteran players. In the NHL, it’s common to see players between the age of 35 and 40 still on rosters, which is considered really old by pro sports standards. We did a case study on a veteran player Boston Bruins’ Zdeno Chára, and specifically his value to young players. There are hundreds of other examples that we could have used. For Millennials who might gravitate to this book, we also reference the movie, The Intern, starring Robert De Niro, about a retired businessman who becomes a senior intern, to drive home the point that experience and wisdom may be of value.

Hockey is rapidly becoming more diverse. What Role has the NHL played play in creating a more diverse and inclusive workforce and what lessons can be learned?

O’Reilly: While the NHL has not yet achieved its diversity and inclusion goals, the organization has made wonderful steps, however not at the level of what’s happening with Hockey Canada, where a lot of challenges diversity-wise have spurred the sport’s national governing body to begin addressing systemic issues. In our book, we dig into this in a couple of the chapters: one around women in sport, and specifically Manon Rhéaume, the first woman NHL player, who signed a contract with the Tampa Bay Lightning back in the early ‘90s; and a chapter on Don Cherry, the popular but controversial hockey commentator who lost his job after some ill-considered comments that may have been OK in the past but no more.

We also get into some racial and sexual harassment issues that have not been adequately addressed by maledominated leadership at some teams. The NHL recognizes that DEI is the way the league needs to go and the sport needs to change.

We looked inside an organization showing really notable growth, then asked what lessons it holds for someone who owns a tool and die shop.

Burton: Commissioner Bettman has made it a priority of his senior administrative team to seize every opportunity to promote the league’s commitment to diversity, inclusion and accessibility. We also write about paralympic, or sledge, hockey as well as the women’s pro league. While the sport is still dominated by white males, it’s the view of NHL leadership that this is something they can change going forward. We’ve already have an NHL team’s first black general manager and first black play-by-play broadcaster. These firsts are happening with regularity. Our book also addresses NHL players’ different backgrounds and professional progressions, talked about The Black Women’s Hockey Club, the growing number of black players in the NHL, and how teams and players across the NHL spoke out against racial injustice in the wake of George Floyd's death. However, all these developments have to be framed in the context of the NHL trailing other leagues on these issues.

For years the NHL was considered behind the times— too regional, too violent, and having terrible TV deals. When and how did all of that change?

O’Reilly: The NHL is now back on ESPN, has a big deal in Canada with Sportsnet, and is getting record revenues from those pieces. So, the regionality-of-coverage issue has disappeared. The league has also embraced eSports streaming platforms and has partnered with MLBAM, Major League Baseball’s Internet and interactive branch, to provide digital support.

On the issue of violence—this a very aggressive game, fighting aside—we talk a lot in the book about spinning your products with your target market. In the 1950s, ‘60s and ‘70s, hockey’s predominantly male fan base was as interested in seeing fisticuffs as they were a hockey game. That has changed as the sport has attracted more families, women and kids.

Ongoing rule changes also have drastically reduced drastically the amount of fighting, including the number of hitting-from-behind, aggressive plays, which carry

more penalties. The rule changes also make the game faster, more exciting, and higher scoring, all of which attract more spectators. They’ve created a product that’s more in tune with today’s market.

Burton: Also, there is, and will continue to be, a market for the violence that is a natural part of every sport. Mixed martial arts is seeing massive growth. In baseball, someone throwing a 100-mph fastball in the vicinity of someone’s head, or a or a player sliding into second base with their spikes up always gets the crowd going. In basketball, there’s the the massive slam dunk with one player throwing it down on top of a poor, helpless defender. Then there’s the all-out, violence of American football, where the collisions and contacts are the equivalent of car wrecks. Hockey also has its collisions and checking into the boards and fights which add to the game’s appeal. 

Rick Burton is the David B. Falk Professor of Sport Management at Syracuse University. He is the former commissioner of the Australian National Basketball League and was chief marketing officer for the U.S. Olympic Committee for the Beijing 2008 Summer Olympics. His columns appear regularly in Sports Business Journal and Sportico. He is the COO North America for Playbk Sports. Reach him at rhburton@syr.edu

Norm O’Reilly is dean of the Graduate School of Business at the University of Maine and a regular columnist for Sports Business Journal. He is minority owner of the Toronto-based marketing agency T1, with clients including Nike, UFC, Pepsi, Nissan, and Esso/Exxon. Reach him at norman.oreilly@maine.edu

When and How to Work with an Expert Witness

SIMON HEMS & MARK THOMPSON M C GUIREWOODS & EPEUS CONSULTING

 Simon Hems, McGuireWoods partner in international dispute resolution, and Mark Thompson, founder of Epeus Consulting, share their experiences in conversation.

What is an expert witness and when do you need one?

Simon Hems: The dictionary definition of ‘expert’ tends to be about knowledge, but that’s not quite how the law looks at it. Knowledge is nothing without experience.

In terms of need, I will start with each issue that needs resolving. Then I ask if we can resolve it by looking at the facts alone. If not, do we also need to apply the law? If we still can’t resolve it, then there is something else in play we are not expert in. Often, it’ll be things like valuation of a large asset, or the physical state of something at a microscopic level, or best industry practice, etc.

So, when I pick up the telephone to Mark, I’m going to him knowing what the issue is and where I think I need some expertise.

Mark Thompson: Yes, expert evidence must be something the lawyers don’t have the ability to do themselves.

In my mind, there are two categories of experts. There’s the technical expert in terms of a piece of machinery that failed, and we need to understand why, because one party is liable for that. We can do that. But more frequently we’re brought in to identify what’s normal in the industry, almost like a ‘customary practice’. You know, the contract says one party was supposed to do X, but nobody did it.

For example, I’m an engineer with a degree in electronic and electrical engineering. And I’ve been around vessels and rigs. So, I can comment on the distribution system of electrical systems on a rig. But I have that knowledge just from working. I wouldn’t regard myself in the same way as some of the specialists we use in our regular project work for clients. These days, a client would probably demand that kind of specialist as an expert on a case.

Hems: There is a further issue with expert evidence. Quite often, lawyers go off looking for experts with an answer in mind, as if they’re trying to reverse-engineer their expert evidence to prop up a case. Understandable, perhaps, when your job is to advocate a position. But if the expert is approached from a biased perspective, it’s easy for that expert then to stray into an area where they may have knowledge, but not necessarily expertise. The correct approach may actually be that two or more experts are required.

Thompson: I’m all in favour of having an expert team. Some of these disputes are just too broad for a single expert. My experience of working within a group of experts, though, is that they’re normally pretty good at self-policing in terms of that. After all, they know they’ll have to stand by their evidence, give testimony and be cross-examined.

How much contact does, or should, the expert have with the legal team?

Thompson: Well, you fly solo when doing your research and writing your own opinion, of course. But an interesting time for me is the so-called ‘meeting of experts’ which excludes lawyers. That’s a good opportunity to hear the other side’s view. Although I remember one time where the other side’s expert was attempting to win the case during the expert meeting and lecturing me for hours on irrelevant minutiae. I think lawyers could be a bit more relaxed about how their experts are going to act in this meeting, especially if the expert has some experience.

I remind our own experts that it’s not a general conversation they’re having with the other expert. There’s a formality to it. If there’s a particular question you’re both disagreeing on, those specific points need to be captured. But I’d like to backtrack a little and talk about when we’re brought in. Often, it feels we could add more value earlier.

Hems: Definitely. Ideally, I am retained very early, when something’s brewing but not yet slipped into a fully-fledged dispute. All options are still open at that point, including resolution at the project level or higher management

discussions. I would want to start looking for an expert straight away, while arbitration or litigation is still a worstcase scenario. Because even with a high-level investigation underway you’ll quickly get a sense of the types of discipline and expertise you want.

Another significant issue is cost. Because even though the client believes they’re in the right and would also admit that legal proceedings are expensive, they do not want to commit to more costs than they have to. So, quite often, persuading a party on a budget that the right thing to do is instruct an expert long before formal legal proceedings have been started, is challenging.

Thompson: Yes, time pressure is real. One of the things that we found over the years is clients don’t really want expert knowledge itself. They just say, ‘We need a report by a month’s time. Can you do it?’ And it’s like, ‘Hang on, we haven’t seen any of it yet. We don’t know what you’re asking!’ So, there is a frustration in terms of their assumptions of how fast an expert can work to arrive at an opinion. Because clients may have already made their mind up that they’re in the right. And they don’t really appreciate the process of actually ‘arriving’ at an opinion rather than just ‘holding’ an opinion.

Hems: I try to manage that by quietly working in the background to tee up experts. I suspect it drives Mark mad, though, when I call to say, ‘I’m looking for this. I don’t know when I’m going to want it.’ Then, six months down the line, it settles, and he hasn’t got involved at all. But in the meantime, I’ll have got some CVs lined up, so if mediation doesn’t work out, or if we are going into arbitration, I can instantly go to the client and say, ‘Right, we don’t hang around anymore, here are the names of people you need.’

How much access should the expert have to the whole case, not just their own part in it?

Hems: It is fundamental to understanding the issues to get access to whatever evidence is available, but also to give a steer on what further evidence we may need. I’m less keen on letting the expert behind the curtain and seeing all the

legal strategy. Because part of our role is to preserve that independence and to make sure our experts’ opinions are objective. The more non-contemporaneous information an expert gets, the more likely unconscious bias creeps in.

Most experts I’ve worked with are scrupulous. But it’s not hard to imagine ones with less experience of the process— who maybe haven’t been in court and had their reputation tested by an eminent KC—to find themselves being slightly led in terms of what the lawyers would like a report to look like compared to what an expert’s own work would look like. So, my line in the sand is somewhere in the grey area between all of the factual information and the full strategic thinking of the legal team. Exactly where the line falls depends on the circumstances of each case.

Thompson: Where I've struggled before and pushed back has been when I’ve been handed expert bundles that the lawyers have already put together. And I’ve been through all those bundles of factual information and contemporaneous emails and everything else coming out of the job. But there’s just not enough. So, I would then go back and say, ‘Look, here are the gaps.’ And then it helps the lawyers go back to the other side and ask for the information we need.

In one case, the information I was given to begin with had changed because the factual information coming out of the other side’s client, and even our side’s client, actually changed the opinion completely as the factual picture evolved.

What about experts being able to talk to factual witnesses?

Hems: You’re not going to find anything in the rules which puts limitations on this, especially in arbitration where there’s broad discretion in terms of what’s allowed. But I would be uncomfortable leaving a witness just to have a freeform conversation with an expert, because that has the potential to start to influence the witness’s evidence.

Thompson: I've never been comfortable being in the same room ‘unchaperoned’ with the client and the client’s people for that very reason. Also, during cross-examination, the other side’s KC is always fishing for collaboration.

Hems: New High Court guidelines mean witness evidence is much more focused and restricted to direct knowledge. Which I hope will filter through into arbitration. But some expert input is incredibly helpful.

In the area of upstream oil and gas, for example, a lot of the witnesses themselves have expertise in engineering or operational issues or project management. So, one thing I find quite helpful when taking witness evidence is to have an appropriate expert alongside. Partly to translate the language of the industry, and partly to help develop trust. It also helps me shape the right question. For example, once, as a more junior lawyer, I was talking to somebody about a piping dispute but kept referring to pipelines. I am still grateful to the expert who took me aside and explained the difference. Up to that point, I had been confusing and offending the witness in equal measure.

On the flipside, one issue for lawyers is knowing when you’ve got a good expert. Internal client expertise can also help inform us as to whether what an expert is telling us makes sense.

Thompson: Certainly, I’ve come across professional expert witnesses who have been doing it for a long time, just one expert witness job after another. They try to keep their industry knowledge up by speaking to the client’s people and the factual witnesses.

How do you feel about professional experts, who aren’t also practitioners?

Thompson: ‘Professional experts’, as opposed to the rest of us that do it for the love of it? Well, at Epeus, we think it’s vital to get that active knowledge loop going between bread-and-butter work and expert witness work. It’s a virtuous circle.

Hems: Yes, just because someone has 20 years’ experience, if they stopped active work 10 years ago, are they still an expert? How do they stay current? I naturally lean towards experts who are actively involved in their industry. They’re still learning: what’s right and what’s best practice, as opposed to somebody who only keeps up-to-date, if at all, through conversations one step removed, or academic books and articles.

What makes you nervous when your expert takes the stand, Simon?

Hems: The same reason I get nervous when any witness goes on the stand. You never quite know what’s going to be said. You’ve researched and prepared and considered. But that’s why we call it litigation risk. Anyone’s capable of having a bad day at the office. It doesn’t mean I don’t trust the expert; it’s just an inevitable part of being the legal team that’s trying to win an argument as opposed to an expert who’s just trying to give an opinion.

Another aspect is ‘hot-tubbing’, when all appointed experts on a subject give evidence together and are questioned by the tribunal. There can be insufficient guidance as to how that process should go. The tribunal leads the questioning, and each expert has a chance to have a say in response to those questions. In practice, I’ve found that sometimes one expert will become a bit dominant in the box over the other one. I struggle to believe that has no impact on how the evidence is received.

From a lawyer’s point of view, I’d rather have the expert who’s dominating the conversation than one who’s just playing second fiddle. A protocol or some kind of guidance might be helpful.

What does it feel like in the hot seat, Mark?

Thompson: Well, as Simon says, anyone can have a bad day. And, you know, there are three versions of your testimony: the one you prepared to give, the one you gave and the one afterwards you wish you’d given. And it is a bit of a performance. You learn your lines, which is your report, so you can refer to it quickly and accurately. Because by the time you’re attending the hearing, you’ve been through the case and the other side’s experts’ reports and comments. It’s almost like playing chess, where the KC is leading you through documents. And you should be able to know where their cross-examination is going. The KCs are professional question askers, they’re very skilful. And, fleetingly, you feel sorry for the other side’s expert who’s being crossexamined, because you can see where the KC is going, and

the poor guy doesn’t pick up on it and is then surprised.

Then it’s your turn and you’re reminding yourself of all the trigger questions you’ll be asked. You have to have your facts at your fingertips and generally surmise where you’re being taken by the KC, what they see as a smoking gun or a clanger in a document they think might trip you up. I mean, it’s nerve wracking. I’ve met some very cool characters in terms of experts but I’m sure we all get butterflies.

Hems: Experts definitely need a full grip on their report. Because in this day and age, quite often there will be quite large teams working on a report underneath the appointed expert. And you don’t want the heart-stopping situation where an expert is asked a question in a hearing room, and they look a bit lost and start scanning the room for the assistant who worked on that bit. 

Simon Hems is an international dispute resolution and insurance recovery lawyer, predominantly focused on, and experienced in, international arbitration governed by the principle institutions, such as ICC, LCIA, ICSID, DIFC-LCIA Arbitration Centre, LMAA and ad hoc under UNCITRAL Rules. Simon has also handled matters at all levels of the English court system. Reach him at shems@mcguirewoods.com

Mark Thompson is the Founder and Managing Director at Epeus, an independent project risk management and advisory firm which helps energy leaders tackle complex capital project risks, so they can protect their profits and secure their reputations. Before founding Epeus, Mark worked as a Project Manager for Transocean. Reach him at mthompson@epeusconsulting.com

LEGAL TECH STARTUP SPOTLIGHT

CEO: Kevin Harrang

HQ: Melville, NY

# of Employees: 440

Total Raised: $710.75M

Post Valuation: $374.25M

Institutional Investors:

• Apax Partners

Twitter: @verint

URL: www.verint.com/

PERCENTILE 94TH

WEEKLY GROWTH

Description:

Verint Systems Inc with its subsidiaries helps brands provide Boundless Customer Engagement. The company's solutions help iconic brands close the gap created when it lacks the resources required to deliver experiences that fulfill customer expectations. The operating business segments are Customer Engagement and Cyber Intelligence. The Customer Engagement segment derives maximum revenue for the company.

Most Recent Financing Status (as of 11-May-2021)

Apax Partners acquired a 12.5% stake in the company (NAS:VRNT) for $400 million on April 6, 2021, through a private placement. The shares issued are preferred stock with a conversion price of $50.25. The placement was completed over two tranches.

Source: Pitchbook (As of Oct. 2022)

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