General Counsel

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General counsel do not usually litigate and are there to advise and service you, when you need it. General counsel aim to keep you out of court. If you are unfortunate enough to need or defend litigation, your general counsel will refer you to the most appropriate litigation attorney or firm and thereafter monitor and manage the costs of litigation, which could otherwise spiral out of control.

Ideally, your general counsel will have sufficient prior litigation experience in order to do the foregoing effectively. Also, he or she will be able to draft contracts with an eye towards staying out of litigation or litigating in a friendly venue. For example, the existence (or lack thereof) of a contract clause providing for a prevailing party’s right to attorney fees can mean the difference between having (or not having) litigation.

In addition, a general counsel, rather than a litigator, is more likely to give you only the advice you want or need and then get out of the way so as not to frustrate your business goals. Business risk is your decision, not a lawyer’s. Once a transaction’s basic terms and conditions have been negotiated, a good general counsel will rapidly draft an industry standard agreement reasonably slanted to protect you in sensitive areas, as simply stated as safely possible, customized to your particular circumstances and risk tolerance levels, oftentimes for a fixed fee.

As Dan Harper, an acknowledged corporate counsel, so ably states, “It is very easy to just say ‘no’ when a controversial issue arises, this is easy because we can’t get into too much trouble by taking the ultra conservative approach. However, after so many ‘nos’, the company will soon go out of business because it won’t be able to sell anything."

"As in-house (or general) counsel, we must always remember that we are here to serve the client, it exists to sell goods or services and to make money. It does not exist to provide gainful employment for attorneys. Hence, we must do what we can to further that mission, balance the risks against the benefits, including the mission of the company – making money and thereby keeping all of us employed." Do Law Firm Lawyers Really Know What It's Like to Be an In-House Lawyer? Dan Harper, Corporate Counsel, 9/10/2010.

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