Thread by @law_ninja

I recently spoke to around 20 in-house counsels, and asked them how things have changed since lockdown started.

What are their priorities and concerns in the post-COVID world?

#law #lawyers #lawstudents #lawsikho #inhousecounsel

What I learned was quite instructive!

Btw, if you are giving any in-house counsel job interviews in the next 12- 24 months, make sure you are able to explain how you can help the business with all these issues described here.

Even talking about these issues will set you apart.

If you are a litigator or a law firm lawyer, read these issues very thoroughly because this is what your clients are dealing with. Make sure you show sensitivity and understanding of their situation when you deal with your corporate clients next.

If I have missed any major concerns you can think of, please share them with me too. I will be adding them to this list.

1. Increased work but reduced budget

There is a lot more work on the plate of the in-house counsel. They have to renegotiate contracts, they have to recover tons of unpaid dues while fending off others who are trying to claim their payments, respond to legal cases,

Keep track of ever changing lockdown and social distancing regulations, deal with consequences of difficulty to pay staff on time or worse, retrenchments, and a lot more every day.

The pressure is incredible, but they can’t hire more lawyers to deal with the work pressure, and they need to stay away from hiring external lawyers or law firms either, because there is no budget for any of that.

2. Need to adapt to a new approach - form adversarial to collaborative

This is not the time to threaten people with court cases or arbitrations. It is very hard to enforce an order even if you manage to get one, given that your debtors are reeling under massive loss of income.

Also, in a market where almost everyone is suffering from loss of income, you need to preserve relationships for the time when the market will recover.

Creditors, counterparties and claimants now have to think of the future, preserve relationships where possible keeping the long term in mind, and act collaboratively with those failing to deliver on their promises or legal obligations.

Lawyers are not used to acting in this way, traditionally. They usually take an adversarial approach against any breach of contract or rights violations.

This is however, time for a new type of lawyering that has to replace adversarial advocacy - collaborative advocacy.

In-house counsels are no stranger to the concept, but this would be the new mantra.

3. Adapting to new technology under pressure

We already saw how Zoom’s daily users grew by 380 per cent—over 2.2 million users in a single month,

And the founder Eric Yuan’s net worth went up to $7.8 billion in the last two months.

Why not? When almost every business in the world has to do video conferencing and you are the best option available, what else can you expect?

Well, Zoom is not enough. Given the extraordinary pressure of work, and the inability to work from an office, in-house counsels have to adapt. If they didn’t earlier, they are now getting introduced to softwares for OKR, or kan-ban boards to manage processes,

Or having to look for project management and employee productivity management tools in order to keep the work going.

4. Fear of being axed and pay cuts expected as a cost centre

The in-house legal team is always a cost centre. It is useful, but it does not bring in any revenue for the business.

Thus, in-house counsels are at risk during an economic downturn since layoffs and pay cuts happen the most in cost centres. Companies can’t fire all their lawyers, and in some cases lawyers will be the last to be fired when a company is going down.

But underperforming lawyers, or those greenhorns who are still in training are likely to be asked to leave soon.

It is a great idea at this time to identify the emerging needs for your company and upskill yourself in those directions.

If there is one strategy that can help you to survive this massive recession, that would be to find the needs that are arising out of this chaos, and to upskill yourself so that you can cater to those needs better than anyone else.

For instance, the moment the moratorium of filing IBC cases will be lifted, a few months down the line, surely a whole lot of cases will find their way into NCLT. A whole host of shareholder disputes are also foreseeable.

How knowledgeable are you in matters of IBC or NCLT litigation?

We can expect a lot of FDI coming into India’s agricultural sector given the recent reforms in near future?

Will that generate a massive amount of work for investment lawyers as well as real estate lawyers who have sound knowledge of land laws?
Foresee where the market is headed, and take action to acquire skills that can make a difference in your quest to excel in the new environment.

Think of this as a race for survival, and the fittest will survive. This is no time to be lazy or complacent.

5. Avoiding going to court or even arbitration

Two bad things happen at once when you take things to court or arbitration.

At a time when working capital is scarce, you are committing more working capital to fighting a legal battle, and if there was any hope of getting a quick settlement and partial reprieve, you are closing that door as well.

It may make commercial sense right now to take a haircut on your claims and just grab what you are getting, rather than knocking on the doors of the court of justice to get 100%.

Even if you land up in court, you will probably be standing in a queue with million other people, waiting for your turn, and even if you manage to get an order, enforcing it will be an ordeal and could take very long.

In-house counsels are therefore figuring out every possible alternative they have - primarily renegotiation.

6. Getting results is harder and slower, and can we get third party funding?

Your existing litigations and arbitration have probably come to a standstill.

Getting results will also be harder, as judges are now very apprehensive of passing adverse orders against any party, knowing that such an order could very well act as a death knell against a business.

Courts want parties to figure things out outside of the court, and are giving them more time rather than trying to decide matters faster.

In this environment, a lot of in-house counsels are exploring the possibility of third party funding to pursue their biggest claims,

which can free up their working capital while giving them more firepower to pursue their biggest claims that are most likely to succeed. If you want to understand how TPF can help the balance sheet, take a look here.

7. Learning to manage outside lawyers without physical meetings

Personal meetings are out of question. Long briefing sessions and conferences in the chamber of senior advocates are now a thing of the past.

In-house counsels are all working from home, and cannot even collaborate with colleagues the way they used to before.

But one of the hardest parts is managing external counsels in this scenario.

Everything from picking lawyers, to tracking their performance to hunting them down when they suddenly stop responding on calls and mails - everything is a lot more complicated now.

Not everyone is good at taking instructions over video conferencing, after all!

8. Need to legally review zillions of new processes and practices

This crisis has led to businesses being forced to adopt a zillion new processes and practices. Work from home. Work using your own devices. Provide PPE to on-ground workers.

Opening hours are different. Government comes up with new regulations every day regarding how a business is supposed to function. Plus business exigencies. Sales teams that once worked on ground now have to rely on telesales.

Marketing may be shifting budget from TV ads to email marketing or social media ads. There may be a freeze on promotions. Companies may be compensating for salary cuts through ESOPS.

Every process and practice will have to be reviewed from a compliance angle and weighed against potential for disputes.

Just imagine how every company that had spent a lot of money on getting ISO certification or complying with GDP.

I bet all those measures have gone out of the window and now they have to go back to the drawing board to build compliance all over again.

9. Need to review standard form contracts, and terms and conditions

What was standard once is not anymore!

The insurance contract that was once valid needs to be rechecked. Everything from terms and conditions on your app or website to even the employment agreement and employment policies need immediate changes in light of a very new unforeseeable situation.

The force majeure clause in your existing contracts need to be reviewed for instance! Every contract drafted before COVID-19 needs to be vetted for their effectiveness post-COVID.

All of your SFPs need an urgent upgrade!

10. Training juniors and interns are harder than ever

How would you train your juniors and interns when you can’t even meet them? Training is already such a difficult part of your job, probably the one thing that really makes you drained out.

Social distancing makes it even harder.

You might be able to delegate work to them via WhatsApp or email or some fancy project management tool. But you cannot really keep a tab on them since they are not in front of you.

The only way is now to dedicate specific hours to training, and to have a clear plan for training. You will have to take out time to prepare for these training going forward.

I just want to remind you that you can also outsource the training to experts! LawSikho has done a lot of training for leading companies, with the exact same objective of rapidly preparing juniors - for companies like ICICI Bank and ITC.

11. Accessing the latest policies and notifications and connecting with government officials as physical visits to ministries and departments are difficult

The latest policies, circulars, notifications and explanations that are being released by the Indian government during this crisis might not have been updated yet on any official gazette or website.

You would find it hard to make physical visits to ministries and government departments at this time. Getting access to these latest legal updates can be tricky unless you have smart know-how of it.

At the same time, getting these updates on time is critical and can make a huge difference!

12. Increased consumer litigation ahead

Many businesses are not being able to cater to the pre-promised orders of their customers.

Travel companies are unable to refund money received for unserved orders and cancelled bookings. The number of such matters are staggering. These customers, although feeling frustrated and betrayed, cannot file a suit or take legal action now.

But they will once the legal forums open up.

This is definitely keeping the General Counsels of large B2C companies awake at night.

If you need a refresher course on consumer litigation, check this out right now.

13. Data protection concerns over employees working from home and accessing official data

When all the employees and staff are working from home, and that also, over an insecure medium like the internet, serious concerns exist over data security and protection from data breach.

Not everyone is tech-savvy. And cyber criminals are extremely active at the moment. All the standard data protection measures and processes are disrupted.

Most companies are clueless about how to go about data protection at this time, and are hoping that this is just temporary.

In reality, it looks like social distancing will go on for many more months. And that is keeping the in-house counsels very worried.

GDPR fines are no joke!

14. Lots of very urgent work as businesses frantically try to access capital

The highest priority for most businesses today, unless they have a large rainy day fund, is to access more capital in order to tide over tough times.

Your business might face a liquidity crunch during this crisis, in which case you would have to help it raise investment urgently. In some cases, equity investment will be accessible, and in other cases, you may be eligible for a loan.

In dire circumstances, you might need to even help the business through insolvency or file for bankruptcy.

This kind of work for in-house counsels will go up in the times ahead.

15. They have to find new, more cost-effective but efficient outside lawyers to cut the cost

While the in-house team is being curtailed, the need for outside lawyers will arise as litigation load is not going to decrease but rather increase.

You may have to look for cheaper alternatives to the expensive lawyers you usually hire, given new budget constraints.

You have to ensure high quality but at a lower cost. That is not easy at all!

Tip: If you are looking for high-quality interns and junior lawyers, you can give us a call on 011 4084 5203 and ask for our placement team. We do not charge anything from either recruiters or candidates,

And at the same time we do all the due diligence and fact finding before sending you any candidates.

16. Policy work is a lot harder

How are you supposed to do policy advocacy and lobbying when you can’t visit the ministries, government offices or conferences in person?

As there is a flurry of new regulations from the government to deal with the pandemic and economic fallout, there is an increased need to communicate the position of the industry with the government, but it has become harder than ever to do so.

17. Renegotiating lots of existing contracts that have been breached or could be breached in the months ahead

A whole lot of contractual obligations have been violated, and others are likely to be violated in the months to come. What can businesses do?

The number one strategy is to renegotiate. It is easy to do so right now, and may get a lot harder later.

The defence of Force Majeure may not really be available after lockdown is lifted. Or will it be made available when courts hear matters?

Nobody knows that today. However, Uncertainty will force all parties to consider a settlement where the outcome can be as reasonable as possible.

Such renegotiations are keeping in-house counsels very busy, because they need to wrap these up quite fast as well.

18. Restructuring of finance and loan agreements

If your company has obtained business loans or credit facilities of various types, there is a good chance you find yourself in a position to not be able to service your loans.

Banks and NBFCs are aggressively renegotiating the terms right now and restructuring the loans they have given out.

As in-house counsels, you will have to lead this process from your side. Need some quick knowledge of banking and finance laws?

Here is a course that can help you very quickly: banking and finance laws.

19. Handling sensitive pay cut, lay off and contract labour-related issues

Most companies are going through pay cuts and layoffs. There are many complicated issues here.

What can the company do if it is not in a position to pay full salary to employees? What is allowed and what is not allowed is being figured out. A lot of work on the table of the in-house counsels.

As an in-house lawyer, you are expected to be an expert on labour and employment laws anyway. However, the work on this front has just exploded in the last few months.

20. Gearing up for a lot of litigation as courts and tribunals are finally opening up

There might be criminal litigation. There could be civil litigation. There might be some sort of SEBI litigation in the near future.

There is bound to be a lot of NCLT litigation in the coming future. There should be some trademark litigation. There will be a lot of consumer litigation.

A lot of these could not be filed in the last 3-4 months, but that is changing now, as courts and tribunals begin to function and hear more matters.

Are you ready to tackle what all are coming up?

Once the courts and tribunals open up, expect a flurry of litigation cases coming your way. Solution? Prepare ahead.