CCBJ November-December 2021

Corporate Counsel Business Journal November  December 2021 VOLUME 29, NUMBER 6

WOMEN IN BUSINESS & LAW

Developing a Culture To Foster DEI SASHA CARBONE DISCUSSES THE ORGANIZATION’S EFFORTS TO IMPROVE DIVERSITY AND INCLUSION – FROM THEIR ROSTER TO THEIR STAFF AND BEYOND.

INSIDE A Focus on Solutions, Strategy and Continuous Improvement Farther, Faster, Together Taking Advantage of Tax Equity Maximizing Individual Talent and Creating Team Success As Legal Tech Surges Forward, Don’t Get Left Behind

In This Issue LAW BUSINESS MEDIA

Kristin Calve

EDITOR & PUBLISHER

Kimberly Fine

MANAGING DIRECTOR PROGRAMMING

Dylan Shepard

EDITORIAL COORDINATOR

AT THE TABLE . . . . . . . . . . . . . . . . . . . 2 A Focus on Solutions, Strategy and Continuous Improvement Kristin Calve

Neil Signore

SVP & MANAGING DIRECTOR OF EVENTS

Lainie Geary

DIRECTOR OF CLIENT SERVICES

Amy Lemel

DIRECTOR OF CLIENT SERVICES

Jennifer Coniglio VP FOR EVENTS & SPECIAL PROJECTS

Matthew Tortora

FRONT . . . . . . . . . . . . . . . . . . . . . . . . . 7 PULSE . . . . . . . . . . . . . . . . . . . . . . . . . 11 11 Taking Advantage of Tax Equity

16 Courts Differ on the Meaning of the Work Product Rule’s "Anticipation" and "Litgation" Elements Thomas Spahn

18 Data Collection Meets Diversity, Equity and Inclusion Marci Hunter

WOMEN IN BUSINESS & LAW . . . . 22

Rob Williams

22 Maximizing Individual Talent and Creating Team Success Joy Fuhr

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.

CORPORATE COUNSEL BUSINESS JOURNAL (ISSN: 1073-3000), November/December 2021, volume 29, number 6. Published bimonthly by Law Business Media, 104 Old Kings Hwy N, Darien, CT 06820. Subscription price: $110 a year. Periodical postage paid at Darien, CT, and additional mailing offices.

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.

Sasha Carbone

30 A Focus on Legal Excellence

33 Exceptional Firm Culture Starts at the Top Deborah Festa

36 Diversifying the World of ADR Kimberly Taylor

OPS . . . . . . . . . . . . . . . . . . . . . . . . . . . .41 41 As Legal Tech Surges Forward, Don’t Get Left Behind Ken Crutchfield

44 How Technology Is Changing the Consumer Experience Andre Bouchard

Pat Hanelt

WRITER

26 Fostering DEI Using Training, Mentorship, and Networking Opportunities

Shariff Bakarat

SENIOR DATABASE MANAGER

OFFICE ADMINISTRATOR

VOLUME 29, NUMBER 6

Iris Jones

Austin Waters

GRAPHIC DESIGNER

NOVEMBER  DECEMBER 2021

Kristin Calve At the Table

A Focus on Solutions, Strategy and Continuous Improvement  Kim Gerber, general counsel and corporate secretary at L’Oréal Travel Retail Americas, talks about the unpredictable path that brought her to the iconic French brand, why her grandfather was such an inspiration, and what traits she finds essential in her colleagues.

CCBJ: What led you to join L’Oréal?

Kim Gerber: In hindsight, my move to L’Oréal was not a predictable one. Prior to joining L’Oréal, I worked for Ryder, one of the country’s largest third-party logistics providers.

That was my first in-house job. I worked there for seven years, being promoted over time to successively larger and more complex roles. At the time that I was approached about the position at L’Oréal, I was general counsel for Ryder Supply Chain Division, and I had created a strong network and reputation throughout the company in North America. The position at L’Oréal was intriguing to me for a few reasons. First, I’m an American lawyer who was working for a quintessential American services company in their global headquarters. In contrast, the role at L’Oréal involved working for the Miami-based subsidiary of a French corporation – L’Oréal Travel Retail Americas – which sells products, not services. This change from domestic to international work, from a headquarters office to a satellite office, and from services to products, meant that there were innumerable opportunities to challenge myself and to grow.

I thought that this pivot would make for an interesting adventure. Further, before I joined any products company, it was really important to me as a consumer and as a mom to look for a values match on the issues that matter most to me.

Those include commitments to sustainability and ethical sourcing, as well as diversity, equity and inclusion. As an in-house lawyer, it’s important for me to feel confident in the company’s mission and its products, in order to be able 2

NOVEMBER • DECEMBER 2021

to work authentically and more powerfully every day. I was interested in the commitments that I saw L’Oréal making in these areas.

Please tell us about your leadership style and who or what has influenced it.

My maternal grandfather had the most significant influence on my leadership style. He wasn’t a lawyer, but he was impressive in many ways. He was a man who grew up dirt poor and prioritized his education to be become a college dean at one of the country’s largest universities. He was a veteran who served in World War II and married someone he viewed as his equal far before that kind of thing was ubiquitous. I aspire to have his patience and his ability to see the good in people. He used to ask me regularly if the way that I acted made me proud and if I had done my best.

NETWORK 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 and business needs of their organizations.

Strategic Partners American Arbitration Association Akin Gump Strauss Hauer & Feld LLP

An attorney must be smart but able to distill points into easily digestible pieces and provide actionable advice.

Barnes & Thornburg Clifford Chance H5 Jones Day

He was an unrelenting supporter and a fair critic with high expectations. He brought out the best in those around him by believing in them, giving them the tools to succeed, and then holding them accountable. As a leader, I hope to do the same.

McGuireWoods LLP

What qualities do you look for when you’re hiring new people for your team?

Nuix

I want to work with a team that is committed to continuous improvement, willing to have tough conversations, is accountable for deliverables, and acts with unquestioned integrity. Subject matter expertise is important, of course, but that can be acquired. Whereas good judgment and business acumen need to be there from day one. An attorney must be smart but able to distill points into easily digestible pieces and provide actionable advice. To be honest, I don’t care how good a position is if it cannot be communicated clearly to get the buy-in of stakeholders.

Advisors

When it comes to outside counsel, I want them to tell me what I don’t know. My true partners are those who take the time to understand our business and company culture, so that they can respond effectively in a way that matters to us and resonates with my leadership. Those who get and retain my business understand the unique challenges and needs of my clients and enable me to respond to them.

How would you describe the culture of your organization?

L’Oréal is a complex global organization with more than 85,000 employees and 36 well-known brands under its

McNees Wallace & Nurick LLC National Association of Corporate Directors (NACD) Weil, Gotshal & Manges LLP

Exterro Computershare Contract Logix FRONTEO FTI Consulting iDiscovery Solutions JAMS Logikull NAM (National Arbitration and Mediation) OpenText™ Discovery Wolters Kluwer’s ELM Solutions Wolters Kluwer’s Legal & Regulatory

Contributors Anderson Kill Morae Global Cornerstone Research Neota Logic Fish & Richardson Society of Corporate Herbert Smith Freehills Compliance & Ethics Ipro Tech

Zapproved

Please help us improve and expand our services to corporate counsel by sharing your ideas with our publisher, Kristin Calve, at 844-889-8822 or kcalve@ccbjournal.com.

CORPORATE COUNSEL BUSINESS JOURNAL

3

PinHawk offers a variety of newsletters including...

Leading Law Departments Corporate Legal Law Technology Daily Digest Legal Administration Digest ...and more!

4

SUBSCRIBE HERE bit.ly/3yDvoJF NOVEMBER • DECEMBER 2021

corporate umbrella. As a French company founded in the early 1900s, the company has a Parisian sense of artistry and creativity embedded in its DNA. Each L’Oréal entity around the world, including mine, operates with a clear personality that’s reflective of the global L’Oréal culture but also infused with the culture of the location where it’s based and the customers it serves. My teammates in Miami can be described as imaginative, entrepreneurial and ambitious.

We have employees working here from all over the world, and engaging with disparate viewpoints is very much essential to our business model.

What’s the best career advice you’ve ever received?

When I moved from working at a law firm to working in-house, someone on the business team said to me, “I don’t want to hear problems. Bring me the solution to problems I didn’t know I had.” That stuck with me as an important take on the role of an in-house lawyer. Go ahead and issue-spot, yes, but take it a step further. I aim to be solutions-focused and strategic, understanding that the answer I give will not always be what the team wants to hear, but I am committed to finding a way to accomplish their goals even if we take a different route to get there. It’s important to build trust and confidence through collaboration, so that stakeholders bring you in early enough that you can guide the trajectory of the topic.

What changes would you like to see within the legal profession?

As a profession, we have a lot of room for improvement.

The pandemic laid bare many of the issues that attorneys have faced for years without adequate resolution. Burnout, mental health and the pressure to be constantly on come to mind. During the pandemic, we have seen that new technology enables us to be at home and still fully connected and engaged, which can have its advantages at times, but it also obliterated any line that remained between work

I aim to be solutions-focused and strategic, understanding that the answer I give will not always be what the team wants to hear, but I am committed to finding a way to accomplish their goals and home. Someone said to me recently, “We no longer work at home. We live at work.” At times, the weight of responsibilities can become intolerable. As a profession, we must demand greater support and balance in our lives.

Many attorneys dropped out of the workforce over the past two years when the demands became unbearable, and it should never have come to that.

Further, I’m fortunate to be the head of the Diversity, Equity and Inclusion Initiative at my entity. That has given me an opportunity to look deeply into many of the issues we face as a company and more broadly at national and global statistics.

We see many women in the law but too few in meaningful authority positions on management committees and as general counsel. The same is true of other underrepresented groups. When a law firm does a pitch to me, I want to see their diversity statistics. Many are surprised to hear that I want to see this information and that I can consider it in staffing any project. Until we have true equality in the legal field, we need to use our buying power as in-house lawyers to put our thumb on the scale to require it. I believe we have devoted a lot of resources to removing the barriers to entry, which is important, but we have not yet figured out what to do with someone once they get in the door. How much are we mentoring, sponsoring and advocating to ensure that there is a pipeline of opportunities for those who come from different backgrounds or face different circumstances? It’s not enough to have diversity in a company or a law firm. We need diversity reflected at all levels, as well as the necessary infrastructure to enable people to succeed. 

CORPORATE COUNSEL BUSINESS JOURNAL

5

MANAGING DISPUTES ONLINE ISN’T NEW TO US. That’s why AAA®’s experienced leaders and secure technology are enabling parties to resolve cases even now.

For over 90 years, the not-for-profit American Arbitration Association® (AAA®) has moved parties toward an efficient resolution to their disputes — even during the most challenging times.

Our people, rules and technology infrastructure have supported parties through crises and natural disasters. Nearly two-thirds of disputes filed with AAA settle prior to the first hearing, many of which without accruing any arbitrator compensation.

To learn more about AAA WebFile®, Fast File, Quick Pay, online case management or virtual hearings or to file a case during COVID-19, visit adr.org/covid19

EXHIBIT A

EXPERTISE Matters. adr.org | +1.800.778.7879 ©2020 American Arbitration Association, Inc. All rights reserved.

6

NOVEMBER • DECEMBER 2021

Front Farther, Faster, Together This piece, posted on the Legal Evolution blog (#277), is from Jason Barnwell, an attorney in Microsoft's Corporate, External, and Legal Affairs department and leader of its Modern Legal team. Barnwell provides food for thought for anyone interested in the challenges confronting the profession. "This post is part of a series that reflects my legal industry learning journey, building upon my career journey (080), professional evolution (142), focus on knowledge work (159), and future practice design theory (210).

This installment examines the changes happening now that require us to evolve to serve a civilization experiencing exponential change powered by the fourth industrial revolution and how we might get there faster, together. The College of Law Practice Management Futures Conference strongly influenced the thesis presented here: that we are experiencing accelerating change as a secular trend. My tentative solution is, in part, to invert the law’s traditional pyramid structure.

CORPORATE COUNSEL BUSINESS JOURNAL

7

Required Reading Briefly Weil elects 26 new partners and announces a new counsel class. The new partners are based in Boston, Frankfurt, Hong Kong, London, New York, Paris, Silicon Valley and Washington, D.C. The United States Senate has confirmed McGuireWoods partner Michael F. Easley Jr. to serve as U.S. Attorney for the Eastern District of North Carolina.

Clifford Chance announces that U.S. and international tax specialist Paul Seraganian will join its U.S. Tax, Pensions & Employment (TPE) practice as a partner based in its New York Office.

Frank X. Schoen joins Baker Botts in New York as a partner in the global projects department.

Barnes & Thornburg adds Megan New as a partner in Chicago office where she’ll join the firm's Intellectual Property Department.

FTI Consulting, Inc. appoints Greg Crouse as a senior managing director in the firm’s Dispute Advisory Services practice.

McNees Wallace & Nurick announces the addition of attorneys Zachary Einsig, Kaitlan Price and Rachel Rowe to the firm’s Real Estate Group.

Laura Colombell Marshall joins McGuireWoods’ Government Investigations & White Collar Litigation Department as a partner in Richmond, Virginia, and Washington, D.C. JAMS shares that Hon. Elizabeth A. White (Ret.) has been installed as the 42nd president of the National Association of Women Judges (NAWJ).

8

NOVEMBER • DECEMBER 2021

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.

REPORT: 2021-2022 Judicial Hellholes Researched and published by the American Tort Reform Foundation, Judicial Hellholes for 20 years has been calling attention to jurisdictions “known for allowing innovative lawsuits to proceed or for welcoming litigation tourism.” Over the years, some civil justice systems have made positive changes, while others have become more deeply entrenched in the practices that landed them on the hellhole list in the first place.

(That has spawned two other lists, “Escaped” and “Everlasting Judicial Hellholes,” which also make for interesting reading.) There are 8 hellholes on this season’s list, though two venues are a cut above (or below) the rest: California (a perennial #1) and New York, which is “mounting a strong challenge.” Rounding out the list are: Georgia Supreme Court; Philadelphia Court of Common Pleas and Supreme Court; Cook, Madison and St Clair Counties, Illinois; Louisiana; City of St Louis; and South Carolina (for its consolidated asbestos docket). Don your hip wader and check it out.

MULTIMEDIA WEBSITE: Notes to MY (Legal) Self Olga Mack, CEO of Parley Pro, is a writer, podcaster, entrepreneur and – well, you name it. She frequently contributes to Above the Law, where you will find this piece: “” Usually, titles such as this don’t merit much attention.

But this one is a cut above. Mack lasers in on the challenge faced by lawyers who once were employed for their legal knowledge and now are employed for . . . well, you name it.

“What used to suffice in private practices is no longer sufficient in-house, as rapid changes, increasing business needs, remote workforces, worldwide regulatory concerns, and the pandemic all combine to bring about new an distinct issues.”

Among the skills Mack discusses are: humility, creativity, agility in learning, influencing, and clear communication. The future may be unknown, Mack writes, but one certainty is that the profession is not becoming simpler. “To satisfy the evolving needs of the job, in-house counsel must stay adaptable.”

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.

Shariff Barakat is a partner in Akin Gump’s Washington, D.C. office. His focus is on domestic infrastructure and renewable energy projects.

Shariff represents developers, sponsors, tax equity investors, lenders and other stakeholders in the acquisition and development of power generation projects.

Andre G. Bouchard is a partner with Paul Weiss in their Wilmington office. Previously, he served as chancellor of the Delaware Court of Chancery, presiding over some of the highest-profile disputes involving the nation’s largest companies. Mr. Bouchard advises companies and their boards of directors on a full range of issues concerning fiduciary duties and other Delaware law aspects of corporate management.

Sasha Carbone is the Associate General Counsel and Assistant Corporate Secretary of the American Arbitration Association.

Her responsibilities include providing legal counsel to the American Arbitration Association and its international division, the International Centre for Dispute Resolution, on a broad range of issues, particularly in the areas of dispute resolution, corporate governance, cybersecurity, data privacy, employment and contract management.

Ken Crutchfield is the president and general manager of Wolters Kluwer Legal & Regulatory U.S. He leads the Legal Markets group and is responsible for setting the vision and strategic approach with a focus on developing leading digital products. His group aims to provide legal professionals across a wide range of markets with expert content and analysis and leading workflow solutions.

Deborah Festa is a partner with Akin Gump, leading their Structured Finance & Securitization practice. She represents institutional investment managers and global investment firms in collateralized loan obligation (CLO) issuances. Deborah advises on securitizations, warehouse financing arrangements and follow-on refinancing and “reset” transactions in the U.S. and in Europe.

Joy Fuhr is a partner with McGuireWoods. She defends manufacturers and energy producers. She focuses on public and private nuisance, environmental, climate change, toxic tort, and product liability claims. She serves as national counsel and lead lawyer for Fortune 500 Companies in state and federal courts throughout the country.

Marci Hunter is a diversity, equity and inclusion analyst at Barnes & Thornburg in the greater Fort Wayne area. In her role, she facilitates data collections and analysis surrounding DEI efforts across the law firm and entire legal industry. Prior to Barnes, Marci had an extensive career with Lincoln Financial Group and served as their Project Manager, Q&A Testing, Technical Specialist, Compensation Research Consultant and Data Engagement Analyst.

Iris Jones is Akerman’s chief marketing and client development officer. She oversees the firm’s client development team to advance the overall strategic plan of the firm by continuing to grow their client base while also deepening existing client relationships. Ms. Jones works closely with firm leadership to build the firm’s brand equity.

Thomas E. Spahn practices as a commercial litigator. He regularly advises Fortune 500 companies on such high-stakes issues as properly creating and preserving the attorney-client privilege and work product protections when conducting corporate investigations, when hiring outside consultants, when dealing with the government, and during other daily and extraordinary situations. He also advises in-house counsel on ethics issues, including conflict of interest, confidentiality, and dealing with corporate wrongdoing.

Kimberly Taylor is the president of JAMS. In her role, she oversees the operations of JAMS in the U.S. as well as abroad. She works directly with JAMS’ CEO, and is responsible for the company’s day-to-day operations as well as all 28 resolution centers across North America. Kim also provides operational and strategic leadership for international expansion efforts.

Barnes & Thornburg elects 27 attorneys as new partners, the largest and most diverse class in the firm’s history.

Weil, Gotshal & Manges announces that Andrew Morris has joined the firm as a partner in the global Tax practice in New York.

Anderson Kill announces that Diana Shafter Gliedman, a senior shareholder in the firm’s New York office and member of the firm’s Insurance Recovery Group, has joined the firm’s Executive Committee.

Akin Gump advises Alpha Bank S.A. on the formation of a strategic partnership with payments specialist Nexi S.p.A. Exterro announces the addition of legal discovery expert and technologist Jenny Hamilton as its new general counsel.

Clifford Chance partners with Greenmap to provide advice and assistance on a pro bono basis in respect of the design and implementation of the International Guarantee Trust Fund for Renewable Energy (iTrust).

Frank Ready joins Wolters Kluwer’s Governance, Risk & Compliance division this week as senior specialist, corporate communications, for its Legal Services businesses.

Morrison & Forester advises VoiceBase in connection with its sale to LivePerson, Inc. FTI Consulting, Inc. announces that Brian Papp has been named a managing director within its Strategic Communications segment.

SUBMIT YOUR ANNOUNCEMENTS TO editor@ccbjournal.com

CORPORATE COUNSEL BUSINESS JOURNAL

9

10

NOVEMBER • DECEMBER 2021

Pulse Taking Advantage of Tax Equity SHARIFF BARAKAT AKIN GUMP STRAUSS HAUER & FELD Overall, I’m a tax lawyer. I started out as a tax lawyer and I

Shariff Barakat, partner with Akin Gump Strauss Hauer & Feld, discusses the tax-equity and project finance implications of upcoming Biden administration legislation, including the proposed bipartisan infrastructure bill and related renewable energy matters.

practiced pure tax law for the first four years of my career.

CCBJ: Shariff, you recently joined Akin Gump. Tell us

related to renewables taxes and tax equity. I also support

Then I also became a corporate lawyer, primarily handling the commercial and corporate side of tax-equity financing transactions, but also other related transactions in the renewables and infrastructure space. At Akin Gump, I’m in the tax group and I’m the go-to person for all things

about your practice and what your primary focuses are.

the project finance and development group from the

Shariff Barakat: I work mainly on renewable power

the transactions. Again, for the most part, I focus on tax

projects, on the finance and tax side. In the United States, many technologies – and renewable energy projects in particular, such as solar and wind power plants – are subsidized by the federal government using tax credits.

tax side as well as the commercial and corporate side of equity, but I also handle some mergers and acquisitions and some debt financing as well.

That’s where my practice is right now. But there are

There are relatively complex financing structures in

some growing areas of focus. Renewables are not going

place to efficiently monetize those tax credits, and

anywhere. They’re growing and they’re showing no signs

those structures are often referred to as “tax equity”. I

of deceleration. There is some really cool stuff on the

specialize in tax-equity financing, and for the last number

horizon as well. One of the things I’m really excited about

of years it’s been very solar and wind focused.

is carbon capture and the asset class and industry that CORPORATE COUNSEL BUSINESS JOURNAL

11

is growing and developing around that. In fact, that was

changes there, but as it relates specifically to my world,

one of the really cool synergies between myself and Akin

including power projects and infrastructure assets,

Gump, which as a firm has a really venerable traditional

there’s been a bipartisan infrastructure bill in the works

energy practice. So marrying that up with my tax-equity

for a couple of months now and it has now been passed

expertise has been an area of focus for myself and for the

by both chambers of Congress. There is also a companion

firm and many of our clients right now, and it should be a

bill that is getting worked on as well. If we take a

growing area going forward.

step back from the project finance and development perspective, the big-picture takeaway is that there’s a

What developments do you anticipate we will see

lot of public money coming into this space. All of this is

from the Biden administration within tax equity and

going to lead to more project opportunities and financing

project finance?

opportunities because the public dollars aren’t going to cover all of those costs.

We probably need another interview – or a whole series of them – to go over everything that’s going to happen here.

Then on the tax side, we’re sticking with the same

There is some major legislation making its way through

framework for about five years. We’re not doing a

Congress right now that is focused on implementing

major overhaul of the system here, but we are tweaking

“the Biden agenda.” There are going to be a great deal of

things in very material ways. One of the things that is

12

NOVEMBER • DECEMBER 2021

How has the Biden administration influenced investor

The Build Back Better Act contains, if passed, will mean a big boom for renewable energy project development.

attitudes toward domestic infrastructure and

most interesting to me is how these bills are going to

looking around and saying, “We need to do something

impact the tax-equity markets. For several years now, since the Tax Cuts and Jobs Act, there’s been a lower level of corporate tax capacity in the United States, which interestingly enough has not helped companies in the renewables space. That’s actually been a problem for them, because the tax credits generally need to be monetized by large financial institutions like Wall Street banks and insurance companies. Those guys had their tax liability cut almost in half. So there has simply been less supply while at the same time you have growing demand in the form new renewables projects.

The Build Back Better Act that is still being negotiated contains mechanisms that are designed to eliminate this bottleneck. However, these “direct pay” mechanisms come with their own considerations that make them only situationally ideal. Tax equity will still have a place,

renewable energy projects?

Generally, the private sector, the people, the electorate, the business community and the world – everyone is about climate change. We need to create a sustainable environment that humans can continue to grow and thrive in.” And the Biden administration is in that camp.

They’re among the people who want to do that. There’s already a very eager attitude, openness and a desire to invest in and develop renewable energy projects, infrastructure projects, pipelines for captured carbon or hydrogen, those kinds of things. Many people are also thinking about information technology and how we’re going to be communicating and sharing data over the next several decades.

The Biden administration is doing a lot of good work to help the U.S. government play a

especially for solar projects.

major part in all of those

Then on top of that, you have a whole host of incentives,

discussing earlier, there

subsidies, and carrots and sticks that are being put into law to promote renewable energy and address climate change generally. Much of those are getting run through the tax code. There is a proposed tax credit for hydrogen, for instance. There are tax credits that will become active in about five to six years that are technology agnostic that wouldn’t just be for wind or solar – they would be for anything that reduces greenhouse emissions. So, big picture, there is a very concerted effort to address climate change and to address the country’s aging infrastructure.

That’s going to create opportunities.

opportunities. As we were are the subsidies and incentives, some of which are getting run through the tax code, some of which are getting run through grant programs and research credits and programs. It’s all coming together to create a really optimal time to be

Shariff Barakat is a partner in Akin Gump’s Washington, D.C. office. His focus is on domestic infrastructure and renewable energy projects. Shariff represents developers, sponsors, tax equity investors, lenders and other stakeholders in the acquisition and development of power generation projects. Reach him at sbarakat@akingump.com.

looking at U.S. domestic

CORPORATE COUNSEL BUSINESS JOURNAL

13

I’ve seen more startups in the carboncapture space in the last year than in the previous four years put together.

world that’s flooded with money from central banks everywhere, there’s going to be leverage. That will be an interesting dynamic to watch develop – the forms that the leverage takes, particularly in the renewable energy sector, and where that leverage sits, whether it sits with the projects or further upstairs in investor pools

infrastructure and renewable energy projects – and the investor base, the private community, is seeing this and they’re jumping all over it. I’ve seen more startups in the carbon-capture space in the last year than in the previous four years put together. The Biden administration is amplifying existing investor sentiment and private sector sentiment in terms of where to build projects and develop

somewhere. I don’t know what it’s going to look like, but it feels like there’s going to be a lot more leverage in the system over the next 10 years than there was over the previous 10 years.

What should our readers know about tax equity and project finance to ensure that they are best

infrastructure.

representing their companies and stakeholders?

What types of new investment vehicles do you anticipate?

We can break that down into opportunities and traps for

From what I’m seeing, the contours of who is investing

corporate America does not participate in tax equity and

and how the investments are being made isn’t changing too dramatically. But I think you’re going to see a bit more innovation on the investment vehicle side. For example, in the renewable energy space as I mentioned earlier, there are negotiations going on right now in some of the legislation for “direct pay.” And that would effectively make some of the tax credits refundable. Looking at the structure of those direct pay options, it’s not perfectly equivalent to what tax equity is or will be in the future, in terms of how the money comes in or the timing of the diligence. But even for direct pay, you’re going to have new types of financial products that are going to help bridge the gap between what tax equity looks like today and what any kind of direct pay option might look like in the future.

We may also see an uptick in public-private partnerships.

That’s likely coming given how much focus there is on infrastructure and due to the inherent public utility nature of infrastructure. And then finally, in a 14

NOVEMBER • DECEMBER 2021

the unwary. Let’s start with the opportunities. Much of the tax-equity markets. Tax-equity financing sources are dominated by major financial institutions, banks and insurance companies – although there are some profitable corporates, tech companies, media companies, and others that do participate. But I think there is untapped potential there. Tax equity is something to take a look at to see if your organization might have an appetite for it. The way I like to describe it to people is that you can cut a check to the Treasury or you can cut a check to a renewable energy project developer. Those are both methods to pay your taxes, but by doing the latter and supporting a developer, at a fairly minimal risk, there are some good returns to be had.

There’s a learning curve, but it’s not as steep as people might think. You have to understand the assets, of course.

But it’s worth looking into. It’s worth seeing if your company has the profile to do it. And there’s a lot that can be outsourced, which brings up the question of how

you are dealing with project finance generally. Are you

is external – is crucial. You want to get a product that is

being well advised? And this is where we get into traps

effective and well-tailored to the particular entities, to

for the unwary – because project finance is inherently a

the particular borrower. Not just something off the shelf

non-recourse type of mindset. The developer is not on

but something that really works for the specific project,

the hook generally is a project does not work out, but

the specific business and the specific organization.

specific assets are, so you have to ask, you know, what the

Sometimes you see folks cut corners, for lack of a better

covenants are. What does the deal really look like? How

way to put it, and try to save on the costs of external

is it going to impact the commercial side of the company

advisers and whatnot. But you don’t know what you don’t

going forward? What constraints is it going to place on

know, right? So if you’re not a frequent user of project

management and their flexibility and their ability to

finance, be cautious and make sure at the outset that

pursue their own endeavors?

you’re are well advised and well educated. But also, be aware that there are really cool opportunities out there in

Having a good understanding of the answers to these

terms of tax equity. There are opportunities to turn a tax

questions, and getting good advice – which often times

liability into a profitable investment. 

Data Collection Meets Diversity, Equity and Inclusion MARCI HUNTER BARNES & THORNBURG

With a focus on increasing its diversity, equity and inclusion (DEI) impact, Barnes & Thornburg felt it was important to begin collecting data on DEI efforts and client needs more efficiently. The firm created the position of DEI analyst and hired Marci Hunter, an experienced quality assurance professional and DEI supporter, for the role. Here, she expresses the importance of DEI data analysis.

CCBJ: What sort of quantitative analysis is being looked at by legal and corporate leadership teams? Is it mostly to improve their retention data, build their hiring pipeline, or for other reasons?

Marci Hunter: All of the above. The first rule of a map is to know where you are. Harnessing your data sets you up for success in any context, including driving change relative to diversity, equity and inclusion. The guessing goes away.

The tone-deafness is undermined. The self-referencing and efforts to reshape reality are thwarted. And quite frankly, harnessing the data reveals opportunities. We can’t be successful without it.

In the past few years, diversity has grown even more important to our clients. Many request diversity demographics on a regular basis. A higher level of diversity is becoming the standard in our field. An example of this is the Mansfield Rule Certification; Barnes & Thornburg is working to become Mansfield Certified in the 2021-2022 certification period.

The Mansfield Rule Certification measures whether law firms have affirmatively considered at least 30 percent women, attorneys of color, LGBTQ+ and lawyers with disabilities for leadership and governance roles, equity partner promotions, formal client pitch opportunities, and senior lateral positions.

The goal of the Mansfield Rule is to boost the diverse representation in law firm leadership by broadening the pool of candidates considered for these opportunities. And it’s succeeding at its intended purpose.

16

NOVEMBER • DECEMBER 2021

It is said that what doesn’t get measured doesn’t count.

What are some areas that aren’t getting measured that should be?

Who gets promoted. In our law firm world, who receives billable credit. Who are the client leads or relationship lawyers? Other areas that should be counted are average length of service regarding diverse talent and employee engagement. We as employers should want to be the best version of us, so we have to dig deep.

It seems important for organizations to make clear to employees the connection between their daily decisions and the resulting diversity outcomes. What is one way companies can do that?

Diversity training and education is key. There are many tools and resources. For Example, Barnes & Thornburg has diverse Talent Resource Groups that anyone can join whether you’re a member of the specific demographic or not.

These groups help us celebrate culture, diversity, awareness, and education for those demographic groups. If employees don’t have the capacity to join the groups, we highly encourage them to participate in any event held by the various groups.

They are very fascinating and everyone comes away learning something new.

Marci Hunter is a diversity, equity

and inclusion analyst at Barnes & Thornburg in the greater Fort Wayne area. In her role, she facilitates data collections and analysis surrounding DEI efforts across the law firm and entire legal industry. Prior to Barnes, Marci had an extensive career with Lincoln Financial Group and served as their Project Manager, Q&A Testing, Technical Specialist, Compensation Research Consultant and Data Engagement Analyst.

A 2019 McKinsey and Lean In survey of 329 companies across the United States and Canada showed that 34 percent of HR leaders said their company sets gender targets for representation at junior levels of management, and 41 percent at senior levels of management. Is it feasible for organizations to have DEI goals that involve actual numbers when trying to attract and retain a diverse workforce?

Targets are okay, but they only focus the “diversity” component of DEI. Standing alone (even if all set targets are met), such tells you nothing about whether those women (the example in the study) are part of an inclusive team or are treated equitably when it comes to promotion and advancement opportunities. Targets sometimes give folks the false impression that they are moving the ball when in

reality, the story is incomplete. So they are fine, but only as a part of a strategy.

As mentioned previously, the Mansfield Rule is an excellent bar to reach as far as “diversity.” To really attract and retain a diverse workforce, the focus would also need to be on equity and inclusion. The candidate pool would need to consist of open-minded people of diverse backgrounds who clearly understand the culture the company wants to achieve.  This article should not be construed as legal advice or legal opinion on any specific facts or circumstances.

The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.

CORPORATE COUNSEL BUSINESS JOURNAL

17

Courts Differ on the Meaning of the Work Product Rule’s "Anticipation" and "Litigation" Elements THOMAS E. SPAHN MCGUIREWOODS

Fed. R. Civ. P. 26(b)(3)'s and parallel state work product rules apply to documents and tangible things prepared "in anticipation of litigation or for trial." But the Rule does not specify the degree of required "anticipation."

In Penn Engineering & Manufacturing Corp. v. Peninsula Components, Inc., the court ruled that work product protection only applied if "'there existed an identifiable specific claim of impending litigation'" – explaining that "even [a] 'likely' prospect of litigation is insufficient."

Civ. A. No. 19-cv-513, 2021 U.S. Dist. LEXIS 153047 at *7 (E.D. Pa. Aug. 12, 2021) (citations omitted). Six days later, the court in Verret v. Acadiana Criminalistics Laboratory Commission held that the work product doctrine "'can apply where litigation is not imminent.'" Case No. 6:20-CV-01302, 2021 U.S. Dist. LEXIS 156381, at *3 (W.D. La. Aug. 18, 2021) (emphasis added) (citation omitted). Eight days after that, the state supreme court in University of Louisville v. Eckerle held that "[l]itigation must be imminent or pending" and that "'the mere potential for litigation is not sufficient.'" No. 2020-SC-0216-MR, 2021 Ky. Unpub. LEXIS 49, at *11 (Ky. Aug. 26, 2021) (emphasis added) (citation omitted).

Corporations and their lawyers must determine the pertinent court's standard when assessing a work product claim,

and the likelihood of success in satisfying that standard.

Of course, this can be difficult if the corporation does not know where it might be sued. Next week's Privilege Point will address a court's interpretation of the word "litigation."

Of course, regular civil and criminal litigation satisfies the "litigation" standard. But other similar proceedings might not. In University of Louisville v. Eckerle, the Kentucky Supreme Court held that "the university's employee grievance process . . . does not constitute litigation." No. 2020-SC-0216-MR, 2021 Ky. Unpub. LEXIS 49, at *10 (Ky. Aug. 26, 2021). The court explained that "[a]lthough the parties in the employee grievance process are typically represented by attorneys, the mere presence of counsel does not magically transform an internal, nonbinding process regarding employment disputes among colleagues and coworkers into a judicial or even quasi-judicial action." Id. The court snarkily mentioned "U of Thomas E. Spahn practices L's untimely epiphany" – as a commercial litigator. He noting that the University regularly advises Fortune 500 had earlier argued that companies on such high-stakes "the 'non-legal' nature of issues as properly creating and preserving the attorney-client grievance process created privilege and work product no obligation to preserve protections when conducting documents in anticipation corporate investigations, when of litigation." Id. at *10, *9. hiring outside consultants, when Courts' varying interpretations of the work product rule's "anticipation" and "litigation" elements can create uncertainty for plaintiffs and defendants. 

18

NOVEMBER • DECEMBER 2021

dealing with the government, and during other daily and extraordinary situations. He also advises in-house counsel on ethics issues, including conflict of interest, confidentiality, and dealing with corporate wrongdoing. Reach him at tspahn@mcguirewoods.com

PROUDLY INVITES YOU TO...

LEGAL OPERATIONS

Beverly Hills

MARCH 27-29, 2022 THE BEVERLY HILTON In-Person Events are back in full swing at CCBJ in 2022, and we are looking for speakers to join us in Beverly Hills for our upcoming Inner Circle event. CCBJ’s Inner Circle offers our audience the opportunity to participate in an interactive discussion among legal professionals. The format offers peer-to-peer solutions along with insights from subject matter experts. Guided discussions will fuel professional development networking opportunities.

If you are interested in speaking or if you would like to nominate a colleague, please contact Kimberly Fine, Managing Director – Programming kfine@ccbjournal.com.

CORPORATE COUNSEL BUSINESS JOURNAL

19

Thank you to our Sponsors!

Thank you to our esteemed faculty, attendees and supporters for a successful, in-person event, CCBJ’s 3rd Annual Women in Business & Law, at The Tarrytown House Estate this past Nov. 15-16, 2021. It was so nice to see all of your smiling faces once again!

Would you recommend WIBL to a colleague?

5.0 out of 5 Stars

Women in Business & Law Maximizing Individual Talent and Creating Team

Success

 Joy Fuhr, partner with McGuireWoods, discusses her role in strengthening women’s leadership and opportunities at the firm, as well as the ways those lessons can be applied to help everyone be more successful – as lawyers and in life.

CCCBJ: You’ve been with McGuireWoods for more than 25 years and currently serve as a partner with the firm’s national litigation practice. You are also the national chair of the McGuireWoods Women Lawyers Network. Can you tell us about that group and its role within the organization?

Joy Fuhr: We have about 1,000 lawyers at McGuireWoods, including about 400 or more women attorneys. Those women are spread out among our 21 offices, and so the Women Lawyers Network really does a couple of things to help them.

22

NOVEMBER • DECEMBER 2021

First, we provide marketing and professional development opportunities. If somebody wants to attend a program or do a client event, we provide support. We focus on senior associates, so that they get the opportunity to do client events and enrich their individual networks by developing their contacts with our important clients.

The second thing that we do is try to identify, develop and retain our top female talent across the 21 McGuireWoods offices. The signature program that I developed and started in 2015 is the Women’s Leadership Development Forum, which is a leadership program for senior women associates who are two to four years away from the non-equity partnership decision. It’s a once-a-year program for about 12 women from throughout the firm who’ve been selected for their superior work and high potential to become a partner at the firm.

You have to take the necessary time to rest and recover and maintain some perspective.

We also have another signature program, which is a family liaison program. When a parent is going out for maternity leave, or coming back, we support them and make sure they understand the different options they have within the firm. We help them understand what their responsibilities are for handing off work – and we also make sure that they understand the benefits the firm offers. A feature that I think is fairly unique is that when they come back, there is an on-ramp period during which they have a reduced billable hours requirement, to help them integrate back into the practice.

You are also a former member of the firm’s Board of Partners. What can you tell our readers about your role within the board and how it has shaped your perspective on the role of leadership?

The Board of Partners is a group of equity partners that is selected from throughout the firm, and our role is to provide counsel and advice to the Executive Committee and learn what their goals for the firm are, and then relay that to the rest of the partnership. Being on the board, you learn a lot about firm management, and you are also able to inform the Executive Committee about what the rank and file folks are thinking. I was on the Associates Committee at the time, so I knew what the associates’ concerns were – and also, being part of the Women Lawyers Network, I knew what their biggest challenges were too.

Those connections really put me in a position to make sure those points of view were included in planning, as well as to better understand where the firm was coming

from, so that I could help develop programs for women that would be relevant to them and help them advance and meet the firm’s expectations. The firm is always evolving, so it’s important to make sure that what we’re doing is in line with that, so that these women are prepared when the partnership decision comes up. The goal is to help ensure that they have done all of the things that matter to the firm’s top management.

The other thing that’s happened is that now about 40 percent of our department chairs are women. So having women in those roles, as well as on the Board of Partners, and having a large percentage of women participating in the firm’s other committees and subcommittees, our voices are definitely being heard.

One of the key drivers of success for any women’s program is having the buy-in and support of firm management. And around this same period of time that I was on the Board of Partners, the Diversity Action Council was developed. Tracy Walker, our managing partner, leads that group. So senior management holds the firm accountable for the goals it sets.

So there’s really been a number of things that have come together to increase women’s leadership roles within the firm, as well as to ensure that our pipeline remains strong and that we have a bunch of strong young women who are joining the partnership ranks. All those things together have allowed the firm to do well and increase its numbers of women in the partnership ranks, as well as in firm management.

Who or what has influenced you, and how has that helped you further your success?

My overall mindset comes from my background as a former professional tennis player. I was ranked number one in the country when I was 14. I played in college at Princeton, and I played professionally for a couple years before going to law school. With that background, one of CORPORATE COUNSEL BUSINESS JOURNAL

23

the things that you learn – and I think LeBron James is the most recent example of this – is that if you’re going to have peak performance, you have to have peak recovery.

And so with all of these programs that we have, I think we have encouraged people to take on that mindset – that they’ve got to prioritize their recovery period, and when they get elevated to a new role or a new responsibility, they have to constantly be pruning and shedding the things that no longer serve them.

So, for instance, you go from being an excellent associate to making it as a partner, and now you have a team that you’re leading, so you have to be able to learn to delegate.

And so part of the program that we’ve developed is helping the high-potential associates learn how to maximize not only their performance but also their recovery, so that they can stay in the game and avoid burnout. That’s been especially important during this time of more remote activities, since you might feel like you have to be on 24/7. But you have to take the necessary time to rest and recover and maintain some perspective.

I think that has allowed me to do what I’ve done in the firm, including coming up with programs that have resonated with women who may feel especially stressed with home life, family and other responsibilities.

McGuireWoods has invested significant resources and mindfulness in its quest to elevate women into leadership roles. What’s your advice to others, both men and women, who are looking to do the same?

You’ve got to take every person’s strengths and weaknesses into account. Find out the things that people are really good at. That’s another thing that comes from having an athletic background – you play to your strengths, and when you’re looking at someone else, you also identify what they do well individually, as well as what the firm can do to increase that person’s chances of success. How can we maximize people’s strengths? Most recently, for example, we had a woman 24

NOVEMBER • DECEMBER 2021

One of the key drivers of success for any women’s program is having the buy-in and support of firm management. on my team go on maternity leave, and when she came back, she realized that she really needed to be closer to her home town to make everything work. Well, we have 21 offices, and we wanted to make it work, so she is now in an office in her home town.

And that’s something that I think is an example of that individualized approach that I’m talking about. It’s not a one-size-fits-all situation. Everybody has needs, and we try to identify them and have that person be candid about what they need. And I think we retain a lot more people that way.

That’s actually one of the advantages of the increase in Zoom and remote capabilities. As a practical matter, we’ve got a lot of teams that work across different offices, so face-to-face is no longer an everyday occurrence for many of our teams. But recognizing that people can be productive with a flexible schedule and within different offices is probably the number one thing that we’ve learned, which can actually help people succeed at a law firm. In many ways, the pandemic has strengthened relationships internally and with clients. Having a broad view into at-home circumstances, and being able to observe the level of commitment team members have, that seems to have demonstrated that working from home can be productive.

What can be done to strengthen these opportunities to create or preserve flexibility in the workplace?

At McGuireWoods, we returned to working in the offices on more of a full-time basis on October 4. But we’re doing a hybrid approach, certainly to begin with, and

WOMEN IN BUSINESS & LAW

we recognize, as I just said, that many people were very, very productive while working remotely, and they were able to maintain their client relationships while working remotely. This is important for women especially, I think, who often are having to manage a lot of different competing interests.

That said, I do also think that, especially for junior lawyers, it’s important that they do come into the office and have those face-to-face opportunities. So what I think will work best, based on what I know now, is a hybrid approach. People have the flexibility to come in and learn, but also the flexibility when it’s not necessary to come in to be able to work at home efficiently.

To that end, having a dual office situation is ideal, where you maintain a great home office as well as all the materials you need at the firm, so you can seamlessly go between the two. I think that will set most people up for success, and I think our firm has demonstrated they’re willing to support that as we all try to adapt to the new normal.

More broadly, what is your hope for the future of the legal profession?

I’ve seen a lot of changes over the last 30 years, and I think that most of them have been positive.

Our law firms especially have demonstrated that they are becoming more and more flexible, and I think that gives them a competitive advantage with professionals of all kinds. I think a lot of men want the same sort of flexibility that women do – that ability to be active with their families and pursue their own personal goals. So I think that increased flexibility and individualized attention and not having a cookie-cutter approach to leadership or individual advancement, that really that benefits lawyers from all backgrounds. It will make them better lawyers and also

Joy Fuhr Joy defends manufacturers and energy producers. She focuses on public and private nuisance, environmental, climate change, toxic tort, and product liability claims. She serves as national counsel and lead lawyer for Fortune 500 Companies in state and federal courts throughout the country. Reach her at jfuhr@mcguirewoods.com

happier individuals.  CORPORATE COUNSEL BUSINESS JOURNAL

25

Fostering DEI Using Training, Mentorship, and Networking

Opportunities

CCBJ: What is the American Arbitration Association (AAA) doing to add diverse arbitrators and mediators to its panel?

and mediation. Our focus on panel diversity also dates back many years. For example, we were a co-sponsor of the National Women’s Arbitrator Development Program in the late 1970s. We also co-sponsored aminority labor arbitrator development program with Cornell and Hofstra universities in the 1980s. In the past 10 years, we put into place many of the initiatives that are still active today – working on them, improving them, seeing what works and what doesn’t. One of the things that is really important about our diversity and inclusion effort is that we track it. We develop metrics to make sure that we are achieving our goals.

Sasha Carbone: As part of our shared commitment to diversity and inclusion, we are actively recruiting women and racially and ethnically diverse arbitrators and mediators. The AAA has been engaged in a multiyear effort to increase its panel diversity, and the executives of our organization are actively recruiting diverse candidates who meet the criteria for our panels. It’s one of our organizational goals, and we look at those numbers on a quarterly basis and an annual basis to see how we are doing. Last year, 51 percent of our new panel members were women or racially and ethnically diverse people, which is an increase over the previous two years.

Another significant AAA program that I want to highlight is one that we developed to reach out and further diversify the pipeline of up-and-coming ADR professionals. That’s the Higginbotham Fellows Program, which we started in 2009 in honor of Judge A. Leon Higginbotham Sr. who was a prominent African American civil rights advocate. He was the first African American to serve as a judge in the U.S. District Court for the Eastern District of Pennsylvania, prior to his appointment to the U.S. Court of Appeals for the Third Circuit. It’s a very important program of ours, and we wanted to name it after someone who tirelessly championed African Americans and racially and ethnically diverse individuals.

Another important aspect of our recruitment process is outreach. Over the past several years, the AAA has built coalitions with national and local organizations, including racially and ethnically diverse bar associations, to provide training and create opportunities for diverse practitioners to get onto our panels.

Historically, what initiatives has AAA put in place to increase diversity in the field of alternative dispute resolution (ADR)?

This program provides training, mentorship and network opportunities to ADR professionals from groups that have historically not been included in meaningful participation in the field. The fellows are matched with AAA panelists as mentors in the areas of their interest, and the mentors provide networking opportunities and advice during the fellowship year. Mentorship has been really key in helping the fellows reach the next level of their careers. Also, importantly, the program provides a pathway to get onto the AAA’s roster.

We have been advancing diversity and inclusion in ADR since at least the 1960s, when we established a dispute settlement program to help ease crises in cities through arbitration

Some of the fellows who participate are interested in becoming advocates in ADR, and others are interested in becoming arbitrators and mediators themselves. This

 Sasha Carbone, associate general counsel and assistant corporate secretary of the American Arbitration Association, discusses the organization’s efforts to improve diversity and inclusion – from their roster to their staff and beyond.

26

NOVEMBER • DECEMBER 2021

provides a way for them to network, get to know the AAA and ultimately apply to be on our roster. Since 2009, the Higginbotham Fellows Program has had more than 150 fellows, making it one of the foundations of our diversity effort. In fact, 43 fellows have been added to the AAA roster of arbitrators.

We also have a program called the Diverse Student ADR Summit, which we launched in 2019. It’s a one-and-a-halfday ADR program that introduces diverse law students to ADR and gives them an in-depth understanding of what it really takes to become a successful arbitrator and mediator.

The presenters are experienced ADR professionals and litigators from a variety of backgrounds. We’ve received significant interest in the program, and the applicants have been from all over the country and overseas as well.

Successful applicants were all provided with a stipend to cover their travel and lodging expenses.

What does AAA do to help ensure that diverse arbitrators are presented to the parties for potential selection?

recruit more. “In 2020, our diverse list process generated approximately 30 percent diversity on average.

How does AAA define diversity?

Historically, the AAA has focused on women and racial and ethnic diversity, but we define diversity more broadly to include other groups that are underrepresented in the ADR field as well.

What are the benefits of selecting a diverse arbitrator?

We believe that there are many benefits. Having diversity of thought and people from different backgrounds improves decision-making – and, importantly, it increases the public trust in the process.

What can corporate counsel do to increase diversity on the lists of arbitrators that they are provided?

Advocates and their parties are the ultimate decision makers in terms of selecting the arbitrators and mediators

This is another important focus area for us.. We are committed to increasing diversity on the arbitrator lists that are provided to parties. We have developed case management programming to generate diverse lists, while ensuring that the parties’ qualifications are met. This part of our diversity effort is extremely important, because recruitment is only one piece of the puzzle. If we have diverse arbitrators and mediators on our roster but they’re not on the lists for parties to select from, obviously we can’t get to the ultimate goal of having those diverse arbitrators serve on arbitration panels.

The program’s coding also allows us to figure out where we have recruitment needs. If we are not able to create diverse lists, for any reason, in a particular area of the country or with the particular qualifications that the parties are seeking, it prompts us to know where we need to

CORPORATE COUNSEL BUSINESS JOURNAL

27

for their case. Providers like the AAA have the ability to recruit diverse arbitrators and provide diverse lists, as we’ve been discussing, but the parties using our services are the ones who make the actual selections and determine who will serve on their case. So, one thing that counsel can do is to talk to their clients early on about the value of considering diverse lists of arbitrators. They can also engage in discussions with opposing counsel about the composition of their panel – again, early in the process, before the lists are generated – and then communicate with the arbitration provider about their interest in having a diverse slate of candidates.

As I said, this should take place early in the process, and it should be collaborative with the other party in the dispute.

I will also say that I think the AAA’s focus on diversity and inclusion in ADR can serve as a complement to the diversity commitments and pledges that many companies are making overall. One way to turn those pledges and values into action is by asking for diversity in their arbitration panel.

How is the AAA focused on diversity and cultural awareness within the broader organization, beyond the roster?

There are a couple of aspects to this. First, the AAA’s governance structure fosters and supports diversity in the ADR field. We have an advisory component, composed of legal and ADR professionals who provide insight into the marketplace and guidance in terms of what the best practices are in this area. We also have an internal committee that consists of executives and staff.

So, we coordinate initiatives and collaborate with other organizations, as well as internally.

Also, more broadly, in 2017 we launched an important companywide staff training curriculum to create a greater level of comprehension about diversity and inclusion.

It includes 12 hours of training that provides the staff with opportunities to examine things like implicit bias

28

NOVEMBER • DECEMBER 2021

Sasha Carbone Sasha Carbone is the Associate General Counsel and Assistant Corporate Secretary of the American Arbitration Association. Her responsibilities include providing legal counsel to the American Arbitration Association and its international division, the International Centre for Dispute Resolution, on a broad range of issues, particularly in the areas of dispute resolution, corporate governance, cybersecurity, data privacy, employment and contract management.

and conflict resolution – as well as information about the organizational benefits of promoting a diverse and inclusive workplace.

More recently, we established an employee resource group that is focused on diversity, equality, and inclusion in the workplace to help our employees build and support cultural awareness, sensitivity, and understanding.

These and other initiatives are important to our organizational performance and success, and it is notable that 96% of our employees feel that the AAA enables a culture of diversity.

What is the AAA doing to encourage young, diverse lawyers to consider becoming an arbitrator or mediator?

I already mentioned the Diverse Student ADR Summit,

which is something that we want to expand upon. Also, with respect to the Higginbotham Fellows Program, we are starting to develop a post-program curriculum to continue to engage with professionals who are thinking about becoming an arbitrator or mediator.

Beyond this, AAA-ICDR Foundation’s Diversity Scholarship fund grants diverse law students/professionals with up to $2,000 of financial assistance towards participation in a degree program or fellowship in alternative dispute resolution or attendance at a well-recognized conference.

This helps to encourage diversity and inclusion within the field of ADR by supporting the pursuit of knowledge and skill development through training experiences that encourage inclusive leadership growth in the field of ADR. Additionally, the AAA collaborates with bar associations and law schools to highlight the careers in ADR and help students understand the pathways into this field. 

CORPORATE COUNSEL BUSINESS JOURNAL

29

A Focus on Legal

Excellence

Iris Jones, chief marketing and client development officer with Akerman, highlights how a firm’s culture plays a role in client retention and satisfaction, the growth of women general counsel at Fortune 500 companies and why the next generation should embrace artificial intelligence and cryptocurrency.

CCBJ: Iris, your career has offered you access to your fair share of high performing law firms. What qualities of a firm’s culture have you identified as a formula for success?

Iris Jones: I have been blessed with the opportunity to practice law in both the public and private sectors for two decades before transitioning to business development and marketing departments where I have lead for over 19 years. Client satisfaction is the most important ingredient for success in any size law firm. A firm’s approach to client satisfaction may vary but the goal is consistent across the board.

The past two years have taxed even the strongest minds.

That coupled with the added pressures of a country divided along racial, ethnic and religious lines has highlighted the need for mental and physical wellness programs. Law firms who provide access to mental health professionals instead of stigmatizing individuals who seek solutions will be the firms that hire and retain the great talents. Money is not the only draw for new associates and other professionals.

It's time to create a culture of belonging, inclusion, and support which every one of us needs at some point in our lives. When a law firm or any business entity creates a culture of trust, belonging, psychological safety, and respect, I assure you that will be a place where employees will always go above and beyond in productivity.

What are some key changes you have observed in the advancement of women in legal the profession during your career?

From the time I entered law school until now, there have

The days of acting sincere even if you don’t mean it are long gone. Clients have always been savvy buyers of legal services and now can be quite shrewd with a market saturated by reputable law firms, extremely talented lawyers, and dozens of Alternative Legal Providers (ALP’s).

been countless advancements for women in the legal

A firm’s culture plays a major role in client retention and client satisfaction. Attracting and hiring exceptional legal talent is now considered “table stakes.” Talent may get you in the door, but it won’t keep you top of mind with your clients. The formula for success is to take good care of your greatest asset—your people. Today’s business model is a drastic improvement from yesterday’s. Law firms are more empathetic and caring of their talented employees.

Firms with a culture of valuing its attorneys and other professionals will be successful in retention efforts and will experience a higher level of productivity from employees.

to go to achieve the C-suite ranks in Corporate America.

30

NOVEMBER • DECEMBER 2021

profession I’ve been proud to witness. In the 1980’s there were very few, if any, women managing partners of law firms and even fewer general counsel of Fortune 500 companies.

Though it is vastly different today, we still have a long way In 2007, I was the only chief marketing officer serving an AmLaw 100 firm. Now, there are three African American women serving as chief marketing and client development officers in the AmLaw 100.

The number of women named general counsel at Fortune 500 companies grew to 34 percent last year, which is very encouraging. The number of both women and men of color serving as general counsel is increasing, but we still have work to do!

WOMEN IN BUSINESS & LAW

Whether within the legal profession, or not, who and

excellence and achievement in the law. That thinking

what has influenced your leadership style?

must change. Legal excellence is one of the many benefits from bringing superb lawyers and executives of diverse

The way we are treated influences us all. A step beyond the

backgrounds into the law, partnership, and leadership

Golden Rule is the Platinum Rule: “Treat others not as you

positions. Undoubtedly, employees want to be a part of

want to be treated, but how THEY want to be treated.”

a firm that embraces DEI. Research shows that nearly 80 percent of workers want to work for a company that

In my early years as a law department head at the City of Austin my major responsibilities under the City’s Charter were to manage the outside counsel relationships, review and approve invoices from major law firms, and discuss pending litigation with the mayor and City Council.

Outside counsel who treated me disrespectfully or circumvented my role, taught me how NOT to treat others.

Oftentimes, we learn more from others’ poor examples than from great leaders.

values diversity and 52 percent would be more engaged at work if their employer improved their efforts on this front. Diversity has a direct impact on lowering attrition with diverse teams experiencing higher rates of retention.

Research continuously shows that diverse workforces increase profitability because varying experiences and viewpoints enhance innovation.

Secondly, I strongly advise the next generation to remain open to the next big thing, embrace artificial intelligence, Cryptocurrency, and the newest innovations in technology.

Next generation firms should consider increasing

Diverse teams are more likely to constantly reexamine facts and remain objective. They may also encourage greater scrutiny of each member's actions, keeping their joint cognitive resources sharp and vigilant.

I admire those who value different opinions, who listen actively, and appreciate diversity of thought before making

its “other professionals” category by hiring medical professionals, scientists and computer programmers, and senior level data analysts. Some firms are already in the advanced stages of expanding offerings to clients to address retaining the significant market share that ALPs have pursued and captured.

Third, I would also advise the next generation of law firm and legal executives to examine the compensation structure of your firm/company. Is it a system that rewards individual achievement or does it encourage, recognize,

impactful decisions.

and reward teamwork and team accomplishments?

What advice would you like to offer to the next

Diverse teams are more likely to constantly reexamine

generation of law firm and legal executives?

facts and remain objective. They may also encourage greater scrutiny of each member's actions, keeping their

Some in the legal profession still think diversity and

joint cognitive resources sharp and vigilant. When people

inclusion initiatives motives are distinct from legal

with varying “tools” for solving complicated tasks come CORPORATE COUNSEL BUSINESS JOURNAL

31

together and work inclusively to find solutions, we achieve powerful results. As we strive for differentiation in a highly competitive marketplace, most of us want the most powerful team to deliver the best results for our clients. The key to differentiation lies in how we best address our clients’ issues.

What are your hopes and predictions for the future of the legal profession?

I hope that our society continues to recognize how great lawyers and great lawyering can help improve society.

The last two years have not only impacted in person communications and budgetary objectives, but also revealed long-standing racial injustices which have motivated clients to increase the pressure on outside counsel to improve diversity, equity, and inclusion (DEI). In response to heightened client expectations for formalized DEI policies and metrics, many firms “say” they have programs in place; however, most are early in the journey.

Akerman’s Racial Justice Initiative (launched in 2020) is one of the reasons why I joined the firm. The firm believes in action and it speaks volumes. It is my hope that more firms will internalize this deeper commitment instead of just repeating a simple slogan or issuing a press release.

I predict more law firms will directly engage in service and support of their local communities and organizations.

Lasting progress can be made through meaningful programs and initiatives that directly impact the lives within their communities. Pro bono is one of Akerman’s (as well as other firm’s) major focal points across the country.

I predict that the genuine interest in making a measurable difference will grow to the highest level of dedication to serving our neglected communities.

Helping to extend justice to the underserved and needy should be a badge of honor. The law is a pillar for the kind of America in which our best selves can be realized.  32

NOVEMBER • DECEMBER 2021

Iris Jones Iris Jones is Akerman’s chief marketing and client development officer. She oversees the firm’s client development team to advance the overall strategic plan of the firm by continuing to grow their client base while also deepening existing client relationships. Ms. Jones works closely with firm leadership to build the firm’s brand equity. Reach her at iris.jones@akerman.com.

Exceptional Firm Culture Starts at the Top of resources. Look at how many women and diverse

 Deborah Festa, partner with Akin Gump Strauss Hauer & Feld, discusses the qualities that contribute to a great culture at a firm, including the crucial role of leadership. Also: Advice on what women can do to excel in traditionally maledominated fields such as finance law.

partners you find in those roles. I think you’ll find that

CCBJ: You joined Akin Gump back in May, and you lead

this or other traditionally male-dominated areas?

the firm’s structured finance and securitization practice.

What brought you to Akin Gump, and how does the

there’s a direct correlation.

What, if any, challenges have you faced as a woman working in finance, and what advice do you have for other women looking to be successful and influential in

I’ve always had good working relationships with both

culture compare to other firms that you’ve worked for?

men and women throughout my career, and I’ve learned a

Deborah Festa: Joining Akin Gump was a terrific move for

always have been far fewer women than men in the places

me, both professionally and personally. The firm’s platform is ideally suited to many aspects of my investment manager clients’ businesses, but it was actually the firm’s supportive and inclusive culture that was the deciding factor for me.

So many firms throw around buzzwords and spend much of their time marketing their brands, but at Akin we are really

lot from both. It’s undeniable, however, that there are and I’ve worked, both in terms of the client base and in the practice of finance law itself. The dearth of female role models was a challenge earlier in my career. That said, I was always happy to learn from successful male partners with significant practices, as well as from successful male clients who had built businesses from scratch.

walking the walk and keeping with the tone set by our chairperson, Kim Koopersmith. Our lawyers and staff treat each other with the utmost respect and professionalism.

Communication is really a two-way street in nearly all interactions, rather than a messaging monologue like you might find at other firms. Strategy is the product of dialogue and consensus.

If you want to know whether a firm truly values diversity and supports women, look at its leadership.

Diversity is celebrated both in our population and our perspectives. There are so many women here leading significant practice areas, which was a huge draw for me, and it’s very different than what you might see at many other law firms. That is a natural outcome of the culture here. I’ve always said that if you want to know whether a

What I would suggest to the younger generation of women is that junior lawyers source wisdom from wherever they can find it, from the people in their orbit who are taking an interest in them personally and in their career. In doing so, focus on becoming an expert

firm truly values diversity and supports women, look at its

in your field, establish credibility among your target

leadership – and not just in terms of titles, but rather who

clients, and build a professional brand that is in sync

has meaningful impact and input into the firm’s allocation

with your broader organization. At the same time, build CORPORATE COUNSEL BUSINESS JOURNAL

33

WOMEN IN BUSINESS & LAW

relationships in the broader community of the industry in which you are practicing, because all of these skills are universal paths to success. And in my experience, it works even in areas where you currently find fewer women in leadership positions.

What qualities does a great leader possess, in your view? What is your advice to lawyers who seek to lead in their profession, whether at their practice company or law firm or in a broader community?

It’s important to note here that a great leader might not be the one with the title or the microphone, but rather a quieter presence who has a loyal following. But with those behind-the-scenes leaders as well as those with official titles, I have noticed some common attributes over the years. Just to name a couple of them: First, effective leaders are consensus builders. That doesn’t mean you should stack your leadership ranks with yespeople who only tell you what you want to hear and create a private echo chamber – it means people who really

Deborah Festa

try to understand the views and needs of the broader organization and factor that information into a plan in a meaningful way.

In order to garner a collective buy-in, you really need people to feel safe in sharing their views. That means creating a culture that encourages honesty. Another thing I would point out here is that great leaders really embrace change, when it’s clear that change will benefit the organization. We all know after dealing with COVID-19 for so long now that change can be very difficult, but it also should be seen as an opportunity to rethink and test old models and see what’s working and what could be improved. Here at Akin Gump, for example, we are actively adapting to new ways of working together remotely and considering the impact on our lawyers and 34

NOVEMBER • DECEMBER 2021

Deborah Festa is a partner with Akin Gump, leading their Structured Finance & Securitization practice. She represents institutional investment managers and global investment firms in collateralized loan obligation (CLO) issuances. Deborah advises on securitizations, warehouse financing arrangements and follow-on refinancing and “reset” transactions in the U.S. and in Europe. Reach her at dfesta@akingump.com.

staff of returning to the office in a more regular way. I’m

fulfilling for you personally and professionally. I’m not

happy to say that in all aspects of this transition, our

advocating for rash changes, but if you have tried your

chairperson, Kim Koopersmith, has made it clear that

best to make the positive changes you believe would

the safety and well-being of our personnel is paramount.

improve the culture and the organization where you are,

Those aspects are guiding the firm’s approach, as

and you’ve hit a brick wall, consider whether your energy

opposed to a more rigid one that would dictate some kind

might be better spent elsewhere. In my experience, all

of predetermined outcome. And that’s an example of

too often, particularly women lawyers – including those

great leadership.

in relatively senior positions – do not act on career advancement opportunities that would require a lateral

What advice would you give to your younger self?

move because of feelings of obligation or guilt. I would say that if you don’t feel you have the support to reach

I don’t have too many regrets on a professional level,

your full potential where you are, there’s probably a

but one thing I will recommend to younger folks out

better place for you – and it’s worth the leap.

there who might be in a job that is not the right fit:

to make the legal industry and corporate life better for

Don’t hesitate too long to make a move that will be more

the women that come after us. 

CORPORATE COUNSEL BUSINESS JOURNAL

35

Diversifying the World of ADR I work with such an incredibly talented group of

 Kimberly Taylor, president of JAMS, discusses the importance of inclusion in the alternative dispute resolution community, including the vital role that women play at JAMS and areas of improvement for the future.

CCBJ: You’ve been an executive with JAMS for more than 20 years, and you’re also one of the few women in such a high-level position in the global alternative dispute resolution (ADR) community. What can you tell us about the culture at JAMS and why you’ve spent most of your career there?

individuals. Our strength, especially during the last 18 months or so, has come from listening and being responsive to each other’s needs.

I don’t believe in top-down leadership. From the beginning of the pandemic, for example, our senior leadership team has been consistently seeking feedback from the field about what’s happening in our 29 offices globally – what’s happening locally, where the pain points are, what’s needed to transition to remote work, and so on. All along, our senior management team met frequently and regularly to ensure that we were aligned

Kimberly Taylor: One of the things that I’ve appreciated about JAMS from the very beginning is its incredibly strong culture across all levels – meaning associates, managers and neutrals – and that the organization actively strives to live out its values of neutrality, integrity, collegiality, collaboration and diversity. I’ve seen it in action throughout the 20-plus years that I’ve been with the company.

with what was needed. We were able to make quick

JAMS also continually invests in its talent, both associates and neutrals, by providing ongoing training. One of the reasons I’ve stayed here for more than two decades is that I love the people I work with, and I’ve been able to learn and grow so much as a leader. Also, I love that JAMS doesn’t just talk the talk about diversity and inclusion.

Those are core values of the organization. 70 percent of our employees are women, and almost 50 percent are diverse – and that’s at every level, including senior management. It makes me proud of the organization.

and to really trying to enable people to excel in whatever

decisions and push resources out to the field, which allowed us to remain very client-focused during such a turbulent time. And that’s consistent with my overall approach to leadership, which is to facilitate good communication between our team members, to play to the strengths of each individual and give people what they need to do their jobs. Especially because I work with such a great group, everyone is committed to excellence they do, and to focus on ensuring that our core mission, which is to help people prevent and resolve conflicts, remains our North Star.

JAMS has a popular blog post entitled “Women at the Helm.” What is that post about, first and foremost?

What is its role? And how does it help with recruiting and retention?

We are leaders in the ADR field, so we have curated

As president, what is your leadership style, and how do you view your role within the organization and in the larger ADR community?

a content hub on our website to share the insights that come from being in that position – about legal developments, trends and news related to ADR. And that kind of thought leadership is one of the reasons that I

36

NOVEMBER • DECEMBER 2021

WOMEN IN BUSINESS & LAW

Seventy percent of our employees are women, and almost 50 percent are diverse. believe that so many neutrals choose JAMS as their home and why they stay.

That particular blog entry, “Women at the Helm,” was really enjoyable to participate in. I’m proud of our entire organization, and I’m particularly proud of the representation of my female colleagues on the senior management team. They are truly a reflection of our entire workforce. They’re smart, professional, passionate about dispute resolution, and really just a lot of fun to work with. When we wrote that particular blog post, in early 2021, there had recently been a series of promotions in our senior management team, which we wanted to acknowledge, of course – and we also published it in recognition of International Women’s Day. I love the fact that we’re highlighting our female leaders.

But at the same time, I have some really phenomenal male colleagues who have also promoted their female colleagues and we work very hard together to ensure that everybody is excelling. All of those promotions of women in the senior management team, including the progression of my own career at JAMS, that has been under the direction of our CEO, Chris Poole. So, while it’s wonderful to celebrate women, I don’t want to neglect the role that the men in the organization have played as well.

How, specifically, would you say JAMS supports women

Kimberly Taylor In her role as President, Kimberly Taylor oversees JAMS operations in the United States and abroad. Working directly with the CEO, and leading a team that spans more than 28 Resolution Centers across North America, Taylor is responsible for the company’s day-to-day operating activities. She also provides operational and strategic leadership for international expansion efforts. Reach her at ktaylor@jamsadr.com

in the legal profession, and what more do you hope to do to elevate the role of women within the organization?

CORPORATE COUNSEL BUSINESS JOURNAL

37

Our internal numbers speak for themselves, with 70 percent of our associate population being women, as I mentioned. But we’re also mindful of the need to recruit a more diverse panel, including more women neutrals, and to actively promote their practices. Many of our experienced neutrals, both men and women, mentor newer neutrals and really try to ensure that everyone is successful.

Actively trying to make sure that women are represented in a fair way on our panel is one of our main priorities.

We support affinity bar associations, such as the National Association of Women Lawyers and National Association of Women Judges. We have been involved for years in the dispute resolution section of the American Bar Association and its Women in Dispute Resolution Committee.

38

NOVEMBER • DECEMBER 2021

As we come out of the pandemic and look toward the future, we’re also being very deliberate about identifying future leaders and providing training and career development opportunities for everyone, including women, so that we continue to build a strong leadership bench for the future.

You took over the role of president during the pandemic, as the ADR community was having to rapidly transition and expand its existing virtual ADR capabilities to best serve its clients. How have your clients at JAMS and your neutrals benefitted from the organization’s ability to adapt to the new climate? What are some key elements that ensured your success?

We’re being very deliberate about identifying future leaders and providing career development opportunities for women.

JAMS had already been investing in technology to support virtual ADR for quite a while preceding the pandemic.

We had a platform to support online mediation, for example, and we had begun to develop an online document management system. We were able to roll out that system in mid-2020, on schedule. It was perfect timing.

We call the new system JAMS Access, and it provides document management for all of our ADR processes, 24/7, on a secure platform. It’s been very popular. That said, online mediation wasn’t widely embraced before the pandemic, even though we and other companies had the technology to support it. So, when the pandemic started, as we moved into late February and early March of 2020, we weren’t entirely sure how people would react when in-person ADR was no longer an option, even if it was just going to be for a short period of time.

I was happily surprised by how quickly our clients and our neutrals switched to that virtual platform. The most widely used option was Zoom. It’s quite easy to use, and people were using it for other things too, obviously, so they were familiar with it. But we are technology agnostic. In other words, we can operate on any platform that the parties want, such as Microsoft Teams or BlueJeans or any of the others.

I’m very proud of how everyone in our organization came together and made it happen. Our IT department secured additional laptops that we could deploy to our workers in their home offices, and we had already been investing in technology in our offices throughout the

country, equipping them with Zoom technology and other audio-visual equipment. As things evolved, the entire organization went remote for several months, and then later we began to do hybrid cases as well, when that was permitted by local regulations. Still close to 70 percent of our hearings remain remote or hybrid as we continue to navigate the pandemic.

We were well equipped from a technology standpoint, but really the credit goes to our people. I just love the flexibility that everyone demonstrated, in terms of trying something new, learning as we went, looking for creative ways to solve problems – the teamwork was palpable across every facet of the organization.

What are your hopes for the future of ADR? The future is incredibly bright. Prior to the pandemic, corporate counsel and outside counsel both recognized the benefits of alternative dispute resolution. Mediation and arbitration are proven, cost-effective methodologies that can be used to solve a wide variety of conflicts. In the future, I would like to see those tools deployed to help organizations, companies and individuals prevent conflicts before they arise, or at least earlier in the dispute timeline.

Conflict disrupts relationships and normal business operations, and the sooner people can get out of conflict, the sooner they can get back to doing what they love.

My other strong hope is that all of our efforts to increase diversity among mediators and arbitrators will continue to bear results and that ultimately the cadre of dispute resolution professionals worldwide will reflect the communities that we serve. That goes for all dimensions of diversity, including race, gender, sexual orientation, disability, religious beliefs, etc. I want this to be a more inclusive field, and I hope that we will all continue to work on that and see demonstrable results. 

CORPORATE COUNSEL BUSINESS JOURNAL

39

Are You a Legal Operations Professional?

Be sure to follow InHouseOps.com and @InHouseOps for updates and posts from key industry leaders!

Suggestions or submissions can be sent to our editors at Info@Inhouseops.com.

In-House Ops is published by Law Business Media, publishers of Corporate Counsel Business Journal.

Powered by the LexBlog Network

40

NOVEMBER • DECEMBER 2021

Ops As Legal Tech Surges Forward, Don’t Get Left Behind Ken Crutchfield, vice president and general manager of legal markets at Wolters Kluwer Legal and Regulatory U.S., discusses the booming legal technology market, including what in-house counsel can do to ensure that they choose the right solutions for their company – now and in the future.

CCBJ: What are your thoughts on the current state of the legal tech market? We’re seeing many new companies and technology solutions entering the marketplace, along with significant funding. What do you project we’ll see in 2022 and beyond?

Ken Crutchfield: When you see new legal technology solutions coming out, it’s indicative of an attractive market for investors. That is really the key, because ultimately this

is a business. If you aren’t moving forward, you’re falling behind. The number of businesses that have to comply with increasingly complex laws and regulations is continuing to grow. Any company that is experiencing growth also naturally needs more legal services and is likely to have more compliance challenges as it expands into new geographies and new jurisdictions, or as it begins to offer products or services that have new dimensions of compliance. The large number of special acquisition companies, along with the access to capital markets and low-interest loans that we’re seeing right now, really indicates that the underlying market of these business needs is growing. This all makes legal technology very important.

I believe that’s why you’re seeing this increase of money into legal technology by investors and the expansion of technology opportunities in general. With respect to what we’ll see in 2022 and beyond, I think we’re going to see CORPORATE COUNSEL BUSINESS JOURNAL

41

a number of these solutions really start to mature. The second and third versions of products are usually the ones that really begin to get traction in the marketplace and start to solve the fundamental problems. So, you may see that maturity, and consequently greater adoption of these solutions, as time goes on.

What is surprising to you at this moment with regard to legal tech?

What’s surprising about the boom in legal tech is that there are so many different technologies being aimed at corporations in particular. There are a thousand different ways to apply artificial intelligence to different problems, for instance, and I think it’s surprising to see legal technology achieving a status that’s not unlike fintech.

Fintech has become an entire category unto itself that permeates the broader business community, and I get the sense that legal tech is nearing that point as well.

Billions of dollars were invested in legal tech in the last year – as much as 3 or 4 billion, by some accounts. That, coupled with Gartner’s expectation that the current numbers will triple in the next few years, should give you an idea of how much demand there is for these sorts of solutions.

How do you think in-house counsel can best evaluate these new solutions?

The first thing is to not get overwhelmed with all of the different options that are out there. Really step back and take an inventory of what the challenges are that your business is dealing with and focus on those problems.

It’s always wise to look at what others are saying. That means understanding what the market is talking about with respect to products, and actually engaging with others – whether it’s a consultant to help guide you in a process that you may not be familiar with or leveraging an outside 42

NOVEMBER • DECEMBER 2021

Billions of dollars were invested in legal tech in the last year. law firm that has more knowledge or experience across the market. Those would both be great first steps to evaluate different technologies.

It’s also important not to invest in technology for technology’s sake. Look at what you need to do from a process standpoint. Once you’ve determined a use case and the right technology solution to address that use case, consider what you need to do within the organization to get buy-in and achieve success with the new solution that you’re implementing. Considering that and the cost of change are crucial.

How can in-house counsel work within their organizations to ensure efficiency and to make sure that the solutions are matched with their compliance and outside counsel guidelines?

This ties back to that business problem from the prior question: making sure that you’re looking at and understanding what the problems are, and then looking at the buy-in. That is key,as is consulting with outside counsel before going too far down the path with a particular technology, since they might have some

Ken Crutchfield is the president and general manager of Wolters Kluwer Legal & Regulatory U.S. He leads the Legal Markets group and is responsible for setting the vision and strategic approach with a focus on developing leading digital products. His group aims to provide legal professionals across a wide range of markets with expert content and analysis and leading workflow solutions. Reach him at Ken.Crutchfield@wolterskluwer.com.

insights that are very important. So it really does come back to the business problem, and then also making sure that you understand what is it that you’re trying to solve for, as opposed to just trying to implement a cool technology.

What should our readers consider about the evolution of these legal tech solutions, as they look at their longrange planning?

Recognize that what a product does today is not necessarily what it will be able to do in the future. The subsequent releases of a product always make the product better, so don’t get caught up in the benefits or limitations of a product today. Those will improve over time. The other thing I think is important to understand is that there are some categories that have dozens of different solutions, so you really need to know which ones are the right fit for your business and your segment of the market. Not all of them are going to survive, and that’s just the reality. And in fact, unfortunately, it’s not always the best technology that is going to win.

That’s where reputation and understanding the right fit become critical. You should also consider the fact that investors who put their money behind these technologies

want to get a return on their investment - so if they want to sell at some point, that’s an important factor to consider.

You want to know where the solution you buy is in that life cycle. Hopefully the company gets sold to another company that has a strong balance sheet and will be able to continue to invest for the long haul. That means the solutions will continue to evolve and you won’t have to implement a new technology two years later.

What else would you like to share with our readers?

The main takeaway is just to make sure that there’s a real understanding from vendors about the types of solutions that you’re going to need. Not every solution on the market is going to fit your exact needs. You want a vendor who is willing to work with you, because if this is something that you’ve never done before, there’s a risk there. You’re staking your reputation on this project. And if it doesn’t work, it might undermine your ability to request new technology for the next project down the road. Make sure that you’ve considered all of these factors when you’re deploying and implementing new solutions – and that you’re working with people who understand your needs and are committed to helping you achieve them. 

CORPORATE COUNSEL BUSINESS JOURNAL

43

How Technology Is Changing the Consumer Experience ANDRE BOUCHARD PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Andre G. Bouchard, partner with Paul, Weiss, discusses his tenure as the Chancellor of the Delaware Court of Chancery, what makes that court so unique, and why he’s particularly excited about beginning his next chapter at Paul, Weiss.

CCBJ: You recently retired from your position as Chancellor of the Delaware Court of Chancery, and you’ve have had a very esteemed career. Could you tell us a bit about your background, including anything you’d like to say about that previous role with the Court of Chancery?

Andre G. Bouchard: My professional career has essentially been 35 years in length, and for the first 28 years, I was in private practice in Delaware, which is where I grew up. After college and law school, I returned to Delaware to begin my practice, and I’ve been here ever since. Before joining the bench, I had a litigation boutique for about 18 years, which I started with Stephen Lamb, who went on to become a Vice Chancellor on the Delaware Court of Chancery about a year after we organized our practice. I remained with the firm as the managing partner for the next 17 years.

What’s notable about my experience over that time is that we handled both the defense side, which was the mainstay of the practice, especially at the beginning, as well as the plaintiff side. That experience was very advantageous to me in terms of understanding the dynamics that are relevant to both sides of a litigation. Our work concentrated on corporate law litigation, including stockholder class and derivative actions, partnership disputes, alternative entity disputes, and all the various statutory proceedings you can bring before the Court of Chancery—Section 220 for books and records, advancement issues, the whole gamut.

In May of 2014, I was named Chancellor of the Delaware Court of Chancery, a position I held for seven years. I believe my experience on both the plaintiff side and the defense side

44

NOVEMBER • DECEMBER 2021

gave me a perspective that served me well during my tenure.

Basically, it made me sensitive to the different tactics and motivations that are relevant to how defendants and plaintiffs conduct themselves in the kind of litigations the court sees. The primary duty of the Chancellor is to be a coequal member of the court, and to manage a full docket that is predominantly split between corporate law matters and commercial matters. The distinction there is that corporate law is typically either statutory or based on fiduciary duty, and commercial law is more contractually driven.

Apart from handling a docket, the Chancellor is also responsible for all of the administrative functions of the court. That means overseeing its internal operations, from personnel matters to establishing policies and procedures – you name it, if it is administrative, it really falls on the Chancellor’s desk.

What brought you to Paul, Weiss?

I retired from the Court of Chancery earlier this year, in May, and the first thing I wanted to do was take some time to reset, take stock of things, and think about what my goals and objectives were for the next phase of my career.

Working through that process led me to Paul, Weiss, which appealed to me because of its culture and it is the kind of firm that gets retained by a world-class client base for the most complex legal and business challenges, including many of the most significant matters that you would see in Delaware. In my opinion, there isn’t any other national firm with a better mix of trial firepower, a deep bench, and experience handling the most complicated questions of business law that appear before the Court of Chancery.

I’m very excited to be at Paul, Weiss. Beyond it being one of best of the best as far as law firms are concerned, I admire many of the people there – people who I had come to know during my tenure on the Court of Chancery and

are now my colleagues. I’m very excited about being able to work with them professionally, including my former partner and longtime friend Stephen Lamb, whom I mentioned earlier. He has been at Paul, Weiss for more than a decade. That’s it in a nutshell. I think this place is just fabulous, and it’s a really exciting place for me to be during this next chapter of my career.

What are the benefits of litigating and practicing law in Delaware?

The Court of Chancery is a very unique court. Among the many great benefits is the fact that we have people who pride themselves on going the extra mile for litigants. It’s a very client-service oriented court. It’s a nonjury court, which means great responsibility falls on the judges, which is something that they take very seriously, because the judges don’t only decide issues of law but are also the triers of fact in all of the cases. Another great benefit is the

subject matter, which is of national and even international interest – namely corporate governance and the application of corporate law principles. The court has a history of precedent that extends back more than a hundred years, and there’s a longstanding commitment to refining precedents.

The court has a great reputation for doing an excellent job of turning cases around in a timely fashion, being always prepared, giving very careful consideration to its reasoning in written decisions. And the bar, the state, and the other people who are players in this area in Delaware in general all do a great job of improving our statutes and keeping them up to date in terms of recent trends and developments. Delaware is just an excellent environment in which to litigate cases. Businesspeople like predictability, and the Delaware Court of Chancery gives them maximum predictability by doing things in a very careful and considered way, and by putting in the hard work to achieve that result.

CORPORATE COUNSEL BUSINESS JOURNAL

45

Businesspeople like predictability, and the Delaware Court of Chancery gives them maximum predictability.

What are you hoping to accomplish with this new endeavor?

Have fun. I want to enjoy myself, and a critical part of enjoying myself involves working with colleagues who are fun to work with and to practice with. So far so good in that department.

More specifically, I’m excited about the kinds of things I’ll be working on. I anticipate taking an advisory role in regard to the things I’ve developed some expertise in over the last 35 years. To put a little more of a point on that, I expect to be advising executives, boards of directors, special committees, independent committees, and other such constituencies on fiduciary duty issues and other aspects of Delaware corporate law and corporate governance. I also anticipate advising companies and their boards on strategies for navigating shareholder class and derivative actions, as well as other kinds of proceedings that frequently occur in the Court of Chancery pertaining to issues of Delaware law.

What are your hopes for the next generation of legal executives?

The two things that come to mind are, first, that they pay heed to the teachings of the Delaware courts, and are informed by the learning that comes from its decisions, in terms of how they conduct themselves as executives.

Second, that they embrace, in a considered way, the incorporation of environmental, social and governance (ESG) practices in their businesses, so that there’s real attention to this set of social priorities that are being elevated in the current dialogue about the purpose of a corporation. It’s a very timely topic, but actually ESG is something that’s been the subject of conversation, in my

46

NOVEMBER • DECEMBER 2021

memory, in corporate law circles for at least 20 or 30 years.

Now is really the time to make a difference, and to have more planning that considers other stakeholders as part of the fundamental DNA of a modern-day corporation when making decisions concerning what is in the long-term interests of the corporation and its stockholders.

What else can you share with our readers?

Going back to your question about the benefits of practicing in Delaware, something else I want to mention is that I took great pride in how the Court of Chancery responded to the pandemic. It didn’t skip a beat, and litigants didn’t face any meaningful backlog of cases.

There are a few reasons for that. Number one, which I mentioned earlier, is that juries are not involved in adjudication of cases in the Court of Chancery, which gives the court the ability to get things done more efficiently. Two, the fact that we were pretty technologically savvy to begin with meant that we could easily embrace the technology to transition into remote hearings.

Andre Bouchard is a partner with And three, frankly, Paul Weiss in their Wilmington office. Previously, he served as every member of the chancellor of the Delaware Court Court of Chancery, both of Chancery, presiding over some when I was there and of the highest-profile disputes today, has an absolute involving the nation’s largest companies. Mr. Bouchard advises commitment to working companies and their boards of extremely hard to get directors on a full range of issues decisions out in a timely concerning fiduciary duties and other Delaware law aspects of way. Ultimately, that is a corporate management. Reach him testament to their love of at abouchard@paulweiss.com. the job. 

LEGAL TECH STARTUP SPOTLIGHT Spotlight on: Persuit HQ: New York, NY # of Employees: 43 Growth Rate: 4.22% Institutional Investors: Openview Venture Partners

100

TH

PERCENTILE

Twitter: @PERSUITLegalOps URL: persuit.com/ Developer of legal counsel management software designed to centralize, streamline and automate outside counsel engagements for corporate legal teams. The company's cloud-based software allows receiving competing and easy to compare proposals from law firms of choices, enables to capture and process legal invoices, forecast legal costs with certainty, leverages templates, measures savings, bidding behavior, and success rates as well as captures and

Weekly Growth organizes data, enabling law firms to eliminate manual work and make datainformed decisions.

The company raised $20 million of Series A venture funding in a deal led by OpenView Venture Partners on October 7, 2021. The funds will be used to invest in accelerated capabilities across its product range and enhanced data insights to best support and grow its customers.

Source: Pitchbook (As of Oct. 2021)

To nominate a startup to be featured, email kcalve@ccbjournal.com CORPORATE COUNSEL BUSINESS JOURNAL

56

NOVEMBER • DECEMBER 2021

47

BUSINESS, LAW & LEADERSHIP CCBJ Perspectives Podcast, hosted by editor & publisher Kristin Calve, provides access to leaders and influencers within the ever-evolving ecosystem of lawyers and legal professionals.

PLEASE VISIT

48

NOVEMBER • DECEMBER 2021

https://ccbjournal.com/podcast