In house counsel

12 critical skills to become a top 1% in-house counsel

What are the most important skills that I need to learn to become an effective in-house counsel?

We are providing a list of the top 12 below. 

1 – Business Structuring

Good business structuring reduces business risks, tax liability and helps businesses to channel capital and efforts appropriately.

You should learn how to build an optimal business structure, why businesses create complex holding structures, often spread across several countries. 

2 – Corporate Governance

Legal departments play a critical role in corporate governance. For an in-house counsel, the goal of corporate governance is to enable agile decision making and execution while retaining investor confidence and maximise benefit to all stakeholders.

It is a complex process that requires true expertise and can make a great deal of difference to the fortune of a company.

Corporate governance and actions are important for any business – early stage startups, high-growth VC or private equity investor funded companies, large private companies, MNCs, listed companies, and PSUs.  

3 – Basics of tax and accounting

Lawyers may be afraid of dredging through oceans of numbers and stacks of financial documents. 

However, success as an in-house counsel will remain elusive unless you have a good understanding of financial aspects of a business. 

Many critical legal decisions require you to consider financial impacts and insights, and you also need to ensure that appropriate record keeping for tax and legal purposes. 

Here’s what you need to know: 

  1. How to understand the critical financial statements
  2. Tax and accounting is the basis to record the growth and downfall of the business
  3. In certain businesses and given the government’s focus on making India the manufacturing hub of the world, it pays a premium if you also know import-export laws

Remember, you don’t have to be an expert in these areas, you must be a generalist who understands the company’s goals, can identify appropriate solutions and can engage specialists where needed. 

4 – Government Policy and Regulatory

Every business must keep a sharp eye on government policies and regulations that impact its market. Government regularly issues policies and regulations for every business sector that can make or break the fortunes of a business. 

It is the job of an in-house counsel to not only be aware of all policies and regulatory measures but to even foresee where policies may be headed and prepare their business for any eventuality. 

Here are some examples: 

  1. Can you find out if the startup can register under the Startup India scheme and avail exemptions from income tax or angel tax? 
  2. Could you obtain an MSME registration for your employer and create a process to solve money recovery problems? 
  3. Is there some government recognition/approval available? At LawSikho, we realised that we could obtain NSDC collaboration, and that would enable us to get relief from GST, which was a big advantage as we could offer more benefits to our learners! 

There are hundreds of other government regulations and policies, especially if the company operates in a regulatory sector.

5 – Employment and Labour Law

We are in a phase where the government is rewriting a lot of labour laws. Compliance with labour laws is high on priority, while there is a rise in employment related lawsuits more than ever. 

High risk laws such as POSH keep organisations on their toes, and in-house lawyers need to be on top of such laws.

6 – IP law

For many new age businesses, intellectual property is a make or break issue. Media companies, tech companies, manufacturing industries – they all rely heavily on in-house lawyers to keep their IP portfolios in order. Mistakes and omissions in this department can be extremely costly, and businesses cannot leave their IP to chance. 

There is a lot of work in registration of IP, licensing, enforcement as well as IP portfolio management.

7 – Corporate Finance 

A company requires capital to grow, and it comes in the form of either equity capital or debt. While some work related to corporate finance is outsourced to law firms, especially for major deals, it is now a trend for in-house legal departments to run their own deals. 

In any case, in-house lawyers need a good understanding of investment laws, laws related to banking transactions and loan agreements, as well as disputes and litigation over such deals. 

This is even more important if you work as an in-house counsel in a bank, NBFC, a multilateral lender, a fintech company, or in private equity or venture capital firms, or family offices!

8 – Dispute Resolution & Litigation Management

All mature companies tend to have a lot of litigation or disputes and depend on their in-house legal teams to manage such matters effectively, with the help of outside litigators.

This does not mean that you get to just refer the problem to an outside lawyer and sleep over it. 

Which lawyer should you hire for a particular litigation matter? Every litigator pretends to know everything and understand everything. Very few people are really transparent about their own competence. Unless one is closely associated with a certain court or area of practice, it is very difficult to predict which lawyer is the right person to go to. Lack of publicly available reviews or validation of expertise is also a major reason for confusion. 

Imagine the conundrum faced by in-house counsels who have to instruct multiple lawyers on new matters every day. This is routine work for in-house lawyers who work for banks, consumer goods companies, NBFCs and real estate companies.

You are in charge of briefing, strategy, and getting the right kind of service out of the external litigators. You are also in charge of deciding when to litigate aggressively and when the company must settle.

This requires you to have a great understanding of procedures, litigation strategy and substantial law involved in each matter. 

Also, in-house counsels face the following problems with litigators: 

  1. Poor communication maintained on the matters they are working on. Right from the information about filing, hearing dates, documents filed etc. I know of more than one instance, where litigators filed documents and petitions without getting proper clearance from the authorised people in the concerned company. 
  1. It does not help that some litigators do not consider themselves accountable. When things get difficult, they can simply choose to ignore all calls and mails from in-house counsels. This is what the in-house lawyers dread the most.
  1. Inability to work in tight time frames and failing to keep commitments 

According to a lot of in-house counsels, way too many litigators have no integrity with respect to time. They can promise to deliver something by Monday and never get back even as the week will get over. The in-house counsels often have to hound these lawyers to get any work done. Many litigators also have a lot of problems with following timelines or even giving a commitment with respect to when some work may get done.

In-house counsels often work under a lot of time pressure on things that are super time sensitive. They absolutely blacklist lawyers who are not good with managing time or delivering within promised timelines.

  1. Lack of systems and clear policies – Most individual lawyers do not have the tools they really need to keep up with how corporate India is evolving every day. They do not have basic policies in place with respect to conflict check, maintaining confidentiality, data security, social media communication, handling of press, third party communications or even issuing invoices on time in proper acceptable formats!
  1. Not incorporating inputs from in-house legal team well and taking clearances lightly – Most in-house teams want firm control on how their matters are handled. You cannot expect to have full autonomy in a matter where such teams are involved.

They want you to play a role, and you need to play only that. They may come with a strategy you do not agree with. In that case, the right thing to do is to discuss openly, and even back out of the matter if necessary.

If you do not act according to instructions from such clients, and if you do not take them along with you on every step, you will sureshot lose them and even recovering your fees may become very hard. 

Another big complaint of in-house lawyers that I heard repeatedly was that a lot of litigators have bad English language and grammar, poor drafting and some litigator’s knowledge of procedures can often be appalling. 

  1. Aversion to adoption of technology – A major pain point with many litigators is their refusal to adopt any technology. 

Many of them will not communicate over email and whatsapp, which are staple these days. 

But even bigger problems are created because lawyers are not comfortable with using project management software, billing software, time keeping software etc. They cannot even imagine arbitration or mediation happening online through software, though that is clearly the future of ADR.

Needless to say, if you learn and implement some of these practices as a litigator, you can be in the good books of in-house counsels and have an advantage!   

9 – Consumer Law

Consumer cases are on the rise, and can cost a company a pretty penny if they are customer facing businesses (as opposed to B2B businesses). It is the job of in-house counsels to minimise cost of litigation, settlement and damages payouts. 

10 – Sectoral Regulations

Every business sector today has sectoral regulations and regulators that must be paid attention to. 

For example, for the telecom sector there is TRAI, whereas for the advertising industry there is a self regulatory body Advertising Standards Council of India. In-house counsels do a lot of work with respect to sectoral regulators and must comply with sectoral regulations. They also need to communicate with the regulators when there are notices and information sought.

11 – Government Procurement and Contracts

This is another major area of work for many in-house counsels. Government is the biggest buyer in the economy. 

It is a matter of great prestige to work with the government. 

However, working with the government is fraught with many risks. 

Payment delays are common, while there are convoluted, complicated and very long contracts to be negotiated and executed. 

Securing a government contract requires you to participate through a tender process in most cases. 

Governments also offer certain incentives to SMEs who supply goods and services to the government in the tender process. 

Government contracts often run into hundreds of pages. This work is often susceptible to litigation as well. 

12 – Contract Drafting and Negotiation

In-house counsels draft and review several contracts per week. 

We once surveyed around 30 lawyers across different companies, and we were told that contract drafting and review work varied from 30%-100% of their workload. The average came to around 60%.

Being really good at drafting and negotiating contracts is a non-negotiable skill for every in-house counsel.

In-house counsels look at contracts with another dimension as well. 

They must utilise contract execution software for online execution of contracts. 

Internationally, DocuSign is an accepted platform and if there are international clients, usually this is used.

Where only Indian clients are parties, typically SpotDraft and Contractzy are the solutions deployed.

In addition, they may utilise contract lifecycle management solutions to manage expiry, renewals, breaches, payments and any other ongoing work under contracts. 

They also create standardised forms for contracts that are executed repetitively. 

These contracts may vary based on the industry. 

In addition, negotiation playbooks are also created by in-house counsels for business teams to follow. 

What do you have to do once you learn these skills to land in-house counsel jobs? 

You must build a track record that indicates to general counsels and headhunters that you are equipped to perform the work. 

You must also perform outreach with such potential recruiters. 

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