Thursday, March 12, 2015

Situational Awareness and In-House Counsel

Situational Awareness and In-House Counsel: Technology*

Situational awareness is a relatively new term, applied most frequently by the military, emergency services and air traffic control. It is a complex field and has generated much study and many definitions. One that I like simply defines situational awareness as “being aware of one’s surroundings and identifying potential threats and dangerous situations.”

So, what does situational awareness have to do with today’s in-house counsel? To be effective, in-house counsel must practice good situational awareness in at least three areas: law, finance and technology. Today, I will focus on technology and save legal and financial situational awareness for another day.

For in-house counsel, situational awareness may simply involve knowing what is going on around you and its effect on your goals. Effective communication, understanding expectations and careful monitoring of what is happening are especially important. Your training and experience also affect situational awareness. These concepts are both familiar and important to in-house counsel.

A while back I spoke with a search consultant with a global practice about what it takes to be a good general counsel. Among other things, she described the importance of understanding the implications of technology and how to use it as increasingly being identified as a necessary skill set.

This got me thinking about two columns by Casey Flaherty, Corporate Counsel for Kia North America. In them, Flaherty describes how and why he audits his outside firms for their basic tech skills. In another story about Flaherty titled, "Big Law Whipped for Poor Tech Training," his keynote address about his tech audit at LegalTech West Coast is discussed. Flaherty has long been frustrated by large bills for routine commodity matters — just like many other in-house counsel. In his eyes, law firm inefficiency is a major factor. Therefore, he requires a firm to provide a senior associate to be tested on several basic skills such as using Word and Excel. His findings may surprise you: of the nine firms that have taken the test, all have failed. He contends this results in higher bills, and in response he takes 5 percent off every bill until they pass the test.

Flaherty recognized a problem most of us face — we rarely use all of the technology tools available to us, and the ones we do use we generally do not use to full capacity. (As I type this column, I am well aware that my Word and Excel skills are limited. I suspect the same is true for you as well.)  Most significantly, Flaherty now uses this information to help his client.

I asked Jeff Brandt, the editor Pinhawk, a daily law technology digest, about technology and situational awareness. He readily identified two “potential threats and dangerous situations” directly applicable to in-house counsel. First, he noted the importance of cyber security and hacking for both corporations and law firms. He cited Bank of America auditing the cyber security practices of its law firms, and the effort by Chinese hackers to scuttle the attempted takeover of Potash Corp. of Saskatchewan Inc., by BHP Billiton Ltd., a few years ago [described here]. Second, he referenced ediscovery and records retention, two issues that have been well documented in recent years as major concerns for in-house counsel.

These are but a few examples of how situational awareness can help you do a better job for your client. Indeed, for some it has become a minimum standard for professional competency. The American Bar Association stated that minimal professional competency includes keeping up with “the benefits and risks associated with relevant technology” in a comment to Rule 1.1 of its Model Rules of Professional Conduct.

How do you keep up-to-date without becoming a technological guru? I suggest a daily newsletter like Pinhawk, which I find especially helpful because it digests hundreds of articles in the tech area. You might also consider joining a networking group like ACC’s IT, Privacy & eCommerce Committee or simply checking out their online technology resources, which cover topics from cybercrime to social media.

As one security expert asserted, albeit in a different context, situational awareness is more of a mindset than a hard skill. One does not have to be an expert; any one with the will and self-discipline can exercise good situational awareness.

All in-house counsel should keep this in mind.

**Versions of this article appeared online in Canadian Lawyer InHouse on June 17, 2013 and ACC's In-house ACCess on June 20, 2013

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