Thursday Mar 15, 2007

My admin, John Stockton

This wonderful woman is my administrative assistant. You're correct. She is not John Stockton. John Stockton is a 6'1" former point guard for the NBA Utah Jazz. My admin stands about 5'5" and, to my knowledge, does not possess much "round ball" experience. (As I write this, I'm enjoying a funny visual of her driving the lane against Yao Ming.)

For those of you who are not fans of U.S. basketball, John Stockton wasn't flashy or outspoken. He didn't possess overwhelming physical skills. And, he was a bit average in the scoring department. Yet in 1996, he was voted one of the top 50 players in NBA history. How did he accomplish this? Stockton's special talent was that he elevated the game of everyone around him. He was one of those athletes who was seemingly always around the ball and he possessed that unique ability to know where he was in relation to everyone else on the court. Above all else, he was selfless. He made a career of giving teammates the opportunity to score rather than taking the shot himself (15,806 times to be exact).

Although she is not John Stockton, my admin plays the same role in our organization. She seems to have a sense of what issues need to be handled before anyone else is even aware they exist. She rarely asks for direction. Instead she identifies a problem and fixes it. She's a mentor (formal and informal) for many in our department. She's a cheerleader. She's a diplomat (although she can throw some elbows when needed). And, she is constantly taking on significant new responsibilities.

It took some time for me to fully appreciate the value she provides as I've operated most of my career with little need for administrative support. But after we had worked together for about three months she did something that made me take notice. What she did was clear my calendar of all Friday afternoon meetings for the rest of the year - without asking me. When she told me this my initial reaction was less than positive, but I decided to listen to what she had to say. Her explanation was that she had observed the way that I work (multiple working locations and non-stop meetings) and felt that I needed to block out time to think strategically and work on longer-term initiatives. Rather than being upset that she didn't consult me, I welcomed her proactivity. It took courage for her to do this, especially with a new manager. But, she was absolutely right.

Since then, I've frequently marvelled at how she understands the needs of the organization, assesses what needs to be done and makes it happen. And, she is not a singular example. We have many other support personnel who act the same way. Often without notice or fanfare, they help us to always perform at a higher level.

All of which makes me wonder about the cranial capacity of managers who are described in articles like this.

Friday Mar 02, 2007

Contracts with clarity

After many years in the profession, I'm convinced that the most difficult skill for any lawyer to master is the ability to write with simplicity and clarity. I believe there are several reasons for this. The first is that under the ethics rules of most bar associations, lawyers are charged with "zealous" representation of the interests of their clients. Not “good” or “satisfactory” or “adequate” - but, “zealous”. As a result, most attorneys draft agreements to cover every possibility no matter how remote or unlikely.

A second reason is that attorneys seldom create agreements from scratch. Instead, in the interests of efficiency, we build off existing templates and add additional language covering any contingencies that we have experienced or imagined. When the next attorney uses your template, he or she rarely challenges the necessity of the additions that you have made. With each revision, the agreement grows in size and complexity. It's not dissimilar from the process of creating some software.

Now layer onto this a third factor - fear of malpractice. Those stories about a minor drafting error resulting in a significant damage award are not just apocryphal.

The result is lengthy and verbose documents that create more ambiguity than they resolve. A classic example is the “force majeure” clause that you see in many agreements. Originally, it was intended to identify occurrences outside the control of the parties that would excuse non-performance – i.e. “acts of God”. Attorneys then decided to include a list to identify what specific events were intended. Rather than tailoring that language to each contractual arrangement, successive attorneys kept adding to the list - “just to be on the safe side”. I've seen agreements identifying “volcanic eruptions” as a force majeure despite the fact that the geographic location of the contracting parties has not seen this type of event since our long ago predecessors walked the earth.

Unfortunately, these habits are difficult to break. For me it wasn't until attending a class on legal writing that I began to understand that the complexity of my drafting was in many cases not protecting my clients. Instead, it was creating ambiguity. And, in the contract world ambiguity begets litigation.

With this in mind, I have actively “encouraged” :) my organization to create contracts that are models of clarity and simplicity. We owe it to our internal clients and especially our customers. I'm happy to report that we are making progress. With the support of outside counsel (one who understands the benefit of drafting clarity) and reliance on the SEC's guidelines for Plain English" our team is beginning to roll out new forms of contracts that we will be using with customers this year. I'll admit it is not happening at the pace I would like, but given the breadth of our company's business and our many types of partner relationships, we have a large number of agreements to change.

To give you a small example of the magnitude of the change, here's what one agreement used to say about ordering:

Ordering procedure
  1. Company may order Products or Services by:
    1. submitting an Electronic Order in the manner directed by Sun; or
    2. submitting a Purchase Order to Sun (and Company acknowledges that Electronic Orders for certain Products or Services may require to be supplemented by a Purchase Order); in each case specifying the Products or Services required and referencing the General Terms and applicable Exhibit numbers. By doing so, Company agrees that the Order is governed by the Agreement.
  2. Sun may accept the Order by:
    1. issuing an Order Confirmation to Company; or
    2. shipping the Products or initiating performance of the Services required in the Order.
  3. The identification of the Products or Services in the Order, Service Contract and any Order Confirmation, together with any applicable Service Listings or SOWs and the Agreement, will create a binding contract between Company and Sun for the purchase of those Products or Services.

Here is what we say now:

Placing an order
To buy a Sun product or service you must send a purchase order to us or, if you meet our requirements for placing orders electronically, you may send your order to us electronically in the way we tell you.

How we accept an order
We will show that we have accepted your order by:
  • shipping the product;
  • starting to provide the service; or
  • sending you a written acceptance.
You agree that these contract terms apply to any order we accept.

Notice any difference?

By the way, just to make sure that our efforts resulted in truly simple and easy to understand contracts, we did something else. We sent our agreements to an organization in England called the “Plain English Campaign”. This organization is an independent group with members in over 80 countries focused on fighting for plain English in public communications. The result? The Plain English Campaign reviewed our agreements and awarded them a “Crystal Mark” certification. It's a sign that the terms meet the Campaign's criteria and are considered a model of simplicity and clarity. We think our customers will feel the same way.

Sunday Feb 18, 2007

Caracas and Mexico City

I just returned from a visit to our operations in Caracas and Mexico City. It was great spending time with the local management teams and understanding their unique challenges and opportunities. In both places, I spoke at "town hall" meetings to give employees a better understanding of some of our recent announcements. There's been so much news lately, it's difficult to comprehend it all - especially when you are in a field office 3,000 miles away from headquarters.

I attended meetings in both cities with members of regional IT associations and local economists. They provided validation for what we already know - the Latin American market is growing rapidly. One economist made the case that Mexico should be considered a BRIC country. He based his position on a variety of economic measures (GDP, inflation, population, infrastructure) and comparisons with Brasil, Russia, India and China. Overall, it was very compelling.

In Mexico City, I visited with executives at one of Latin America's largest media companies. They are using Sun technology as the backbone for a new global distribution system for news, entertainment and sports content. It was surprising to learn the reach of Spanish telenovelas - they are now distributed globally including to Japan, Russia and Australia. Perhaps, "Ugly Betty" (based on a Colombian telenovela) represents a new shift in television programming in the U.S.

When visiting our field offices, it has become a Sun Legal Department tradition that we partake in the most "interesting" food of the region. In Mexico City, it was crickets and worms. To me, it wasn't a big deal. I can eat anything deep-fried in beer batter and chili oil. This is the WGEA\* about to make the jump into the gustatory void with a nice crispy worm.

The best part of the trip was the time I was able to spend with our local field attorneys. The volume and breadth of their work is always impressive. On any given day, they manage complex sales agreements, employment issues, litigation, tax concerns, compliance training and attend meetings with government officials. The rest of the time, they handle their "day jobs". In both locations, recent government actions have added significant complexity to their work. The situation I observed in Caracas was the more extreme example. The current congress in Venezuela has given their president broad powers to unilaterally enact laws for a period of 18 months in a wide range of areas. The result is that new laws and changes to existing laws are issued almost weekly. Last month, Venezuela's president announced plans to nationalize the country's oil, telecommunication and electricity companies. There are concerns that he may go further.

I spent over an hour meeting with a group of eight local attorneys in Caracas to discuss this fluid political situation and how it impacts their work. They represented a cross-section of the local legal profession - lawyers from firms and in-house with IT, energy and telecommunications companies. They very openly described the challenges of trying to advise their clients about laws that appear first in the morning newspaper with no prior legislative debate or announcement. Many of these new enactments were described as inconsistent or ambiguously drafted. This forces citizens to seek prior approval from the government before taking any action. And, there is no stare decisis to be relied upon for guidance.

It's a very anxious environment in which uncertainty pervades most aspects of life. Thus, I was surprised at the candor of our discussion. I was also impressed by the resilience of these attorneys. They weren't giving up. Instead, they were focused on applying their skill, training and knowledge to support their clients through this turbulent period. I left the meeting filled with admiration and honored to be part of the same profession.

(\*World's Greatest Employment Attorney)

Sunday Feb 11, 2007

The people you work with.

While preparing for an "All Hands" meeting of our legal team, people submitted interesting facts about themselves, including some of their previous "occupational diversions":

1. "I set fire to a grain drying machine at a major cereal farm."

2. "I have swum in the Antarctic."

3. "While working at Legal Aid in rural Kentucky, I slung hash to make ends meet, sampled squirrel pot pie, and met Loretta Lynn."

4. "I was a gold medalist in synchronized swimming at the Jr. Olympics."

5. "I boxed at the University of Notre Dame."

6. "I moonlight as the 'Pilates Coach to the Stars'."

7. "I lived on a commune when I was 17."

8. "I have spent way too much time in the mosh pit."

9. "I made an accidental model rocket attack on an occupied police car."

10. "My cousins are Danny Devito and Rita Perlman."

11. "My shoe purchases directly support both the US economy and the cross-border balance of trade with Canada."

12. "I like to wear my Tigger costume to the office."

13. "My dog will be a model for a dog wear maker's autumn/spring collection."

14. "I always carry Mjollnir with me."

15. "I was an archery and bowling champion."

16. "I sold Vanilla Swirl ice cream cones on O'Connel Street in Dublin during the summer."

17. "I got lost once while piloting an aircraft in Africa."

18. "My favorite dance is the conga."

19. "My pet king snake escaped in the house and we can't find him."

20. "While in high school, I was employed as a Bullwinkle the Moose mascot for one hour."

21. "I was a security guard in an obscure Museum called 'The Society of the Cincinnati.'"

By the way, our CEO included one of his on the list. I'll let you guess which one.

Friday Jan 26, 2007

Our (real) hiring profile.

Last night we had a open meeting for law students interested in our intern program. This one was focused on the Bay Area, but we hold similar gatherings in other locations. Last year, we were a bit surprised when over 150 people attended. And this year it looked like about the same size turnout.

Interns are an important part of our organization. In the past, like most companies, we hired primarily attorneys with 5-7 years of experience - usually with a law firm. But with recent announcements like this, it's clear that this model can't continue. Our approach has been to increase our investment in training so that we can bring employees on board much sooner after they graduate. As part of this, we have ramped up our intern program. Some of our interns work just during the summer; others continue through the school year. They do valuable work and provide a great pipeline of talent for future hiring.

And, the talent coming out of law schools today is truly impressive. While graduating from top schools with strong a GPA is important; to me, a better indicator of success is "real life" experience. We can train people on the technical side of our practice, but, it's much more difficult to teach them the "soft" skills, things like - communication, collaboration, intellectual curiosity, initiative and leadership. Last year, the interns we hired included:

a former HR manager who speaks 4 languages;

a couple of experienced Java programmers, including one who had previously started his own company;

a student who had already passed the patent bar and had several issued patents; and

an accomplished musician who had spent several years working for the Nepalese government (and who, in his spare time, had summited Everest).

I recall leaving my first meeting with these individuals feeling very, very inadequate, but also energized by the passion and enthusiasm in the room. I had the same feeling after last night's event. Many of the students had previous experience in business, investment banking and teaching. A significant number had spent years in hardware and software engineering and had decided to go to law school - reflective of the interesting dynamic that occurs at the intersection of these disciplines. Most not only had business cards, but some handed out USB flash drives complete with resumes and writing samples. It's definitely a different world than when I graduated.

To all of you who attended last night, "Thank You" for joining us and for your interest in working at Sun. I can't help but feel optimistic about your futures.

Wednesday Jan 24, 2007

Our new hiring profile?

We spend a great deal of focus and energy on hiring the right people into our organization. We want individuals who are strong technically, but who also have the other less tangible skills necessary to thrive at a company like Sun. Given our announcements of the last few days, it occurred to me that perhaps we can make the hiring process easier by focusing our efforts on recruiting the people who drive these. Why? Because they exhibit amazing stamina and perseverance in the face of constantly changing conditions and intense time pressure. All are qualities of a successful in-house legal professional.

This was evident in Monday's announcement about our new alliance with Intel. This was a very comprehensive negotiation lasting more than three months, which resulted in Intel's endorsement of Sun's Solaris Operating System (including as an OEM) and Sun's agreement to deliver new products based on Intel's Xeon line of processors. The alliance also includes Intel's support for the Java programming language and Netbeans IDE and provides for engineering, design and marketing collaboration between the two companies. Given the broad scope of this agreement, we had a cross-functional team, including more than a dozen attorneys, focused on the transaction. They've worked around the clock, including weekends and holidays to get this one closed. To all of them a big “thank you”. Bruce a “thank you” to your team as well. I'd had several people mention how much they appreciated the effort and professionalism of your folks. This always makes the long hours more tolerable.

We also announced this. To be candid, in-house attorneys rarely have the opportunity to work on such a complex transaction. In this case, KKR invested $700m in Sun in exchange for convertible senior notes and a right to propose a nominee to Sun's board of directors. Concurrently with this transaction, Sun is also entering into a series of separate transactions known as “call spreads” which hedge the option inherent in the convertible notes. The effect is to offset potential dilution and raise the effective conversion price of the notes. Sound complicated? It is. But, thankfully, we have some people on the team (assisted by able outside counsel) who are not only smart, but who also view this type of work as “fun”. They also haven't slept in several weeks.

And, lastly, this week there was this bit of news. All 34,000 Sun employees were behind the wheel for this one.

Monday Jan 15, 2007

Where do you work?

Upon graduating law school, I joined a law firm and was excited because I had my own office complete with a large window and massive oak desk. I recall spending hours arranging my various certificates and diplomas to ensure that everyone was impressed with my scholastic accomplishments. As my career grew, the size of my office did as well. It was an important component of my recognition. And, it wasn't just me that felt that way. When I was a hiring manager at a local law firm, I recall many conversations with candidates in which they asked pointed questions about the size and location of offices. Sometimes, this was of more importance to them than compensation. (There's an intelligence test.)

Nowadays, I am so over the "office thing". In fact - I don't have one. Let me let that sink in for a second. I'm General Counsel of a Fortune 500 company with approximately 35,000 employees around the world. And, I don't have an office. When I mention this to my peers at other companies, I generally get two questions: "Why would you want to give up your office?" and "How can you do it?".

As to the “why”, there are several reasons:

1. You become a better manager. I believe that as you lead larger and more geographically dispersed organizations, the value of a dedicated office diminishes and can even be a hindrance. Where I work is dependent on who I need to meet with (assuming a face-to-face meeting is necessary). As a result, I work in multiple locations. Last Friday, for example, I worked out of six different offices. While that may sound hectic for me, it significantly increases the of number informal connections I make with clients and employees. It may be just a hallway conversation, a quick cup of coffee or spontaneous meeting in a conference room, but all are opportunities to exchange information and increase social connectivity. It's a valuable way to identify and resolve issues before they become more serious.

2. You can get rid of all your "stuff". Attorneys are by their nature - pack rats. I have many ideas on why, but my point is that we tend to save every professional periodical or treatise. Look up on the shelf in your office. See that manual on copyright law that you received when you attended the CEB class in 1986? Trust me on this - the law has changed since then. All you are doing by keeping these materials is taking up office space and providing an opportunity to commit malpractice.

3. Your family will remember who you are. For years, our Chairman has been saying that there's no such thing as work/home balance - it's just "life". He's absolutely right. As technology increasingly enables more people to be connected to the internet with mobility, where and when you work matters less. For me this means that while I'm waiting for my son's 5th grade school play to begin on a weekday afternoon, I can be sitting in the audience working. Or, when the traffic on Highway 101 has brought the morning commute to a standstill, I can connect from home instead. I work more hours now than at any other time in my life. But, it doesn't feel that way.

The answer to the "how" question is technology and a progressive thinking employer.

For over two years, I've been participating in a program at Sun called "OpenWork" that allows employees to work from home or drop-in offices located throughout Sun facilities. A key component of this program is our SunRay technology. These systems are located in all our offices, cafeteria, conference and break rooms around the world. I also have a SunRay at home. I just insert my employee ID card, type in my password (it's a dual authentication system for greater security) and up comes my user interface complete with whatever I have been working on. I also use this system to retrieve my voicemails and forward calls to the office in which I'm working on a given day.

I use a smartphone as well. In my case, it's a Treo 680. When I'm on the road, this is how I check my email. As a result, I no longer use a laptop for business travel. It's great. I don't have to worry about lugging around the extra weight or, worse yet, losing it. If I have a business trip, I pull my card out of my SunRay, use my Treo to check e-mail while I'm in transit and then when I arrive at my destination, for example, Tokyo or Moscow, I go to our nearest Sun facility, find a SunRay and log in again.

The other tool I use is my MacBook Pro. With its WiFi capability, I find it is a great way to sit in the back yard on a nice winter day and write a blog.

Saturday Dec 23, 2006

The Reality of Today's Business Travel

I've been watching as the holiday travel season hits its crescendo. Seeing all the people trapped in Denver has me thinking about all the traveling I've done over the last few months. The accompanying soundtrack for these thoughts is one from the Man in Black called ”I've Been Everywhere”. My version of the song would include the alternative lines: "I've been to Toronto-Newark-Manhattan-Buenos Aires-Sao Paulo-Denver-San Diego...”

Earlier in my career, I really enjoyed the opportunity to travel. But these days...well, the appeal is gone. Don't get me wrong, most of my trips are centered around speaking to employees in "town halls”, meeting with customers and government officials and spending time with people from my team. This part is great and immensely satisfying. However, the travel itself is brutal.

Here's a good example from a recent trip to South America. After several days of non-stop meetings in Sao Paulo, I depart at 3pm and head to the airport arriving at 5pm (serious traffic in that city). Proceeding to the check-in counter, I discover there is no one there. I recheck my tickets and find that in my jet-lagged state, I had misread them and that my flight does not leave for another six hours. Now, I don’t want to say that there is a shortage of things to do in the Sao Paulo Airport but… Let me put this way, after three hours, I’m helping the janitorial crew clean up the waiting lounge just to keep myself awake.

Finally, at 10:30pm, I head for my gate, but once there I'm informed that the flight is delayed due to "routine maintenance". At 12:15am, the flight crew arrives running through the terminal. Coincidently, our "routine maintenance" is now completed and we are ready to board. Thirty minutes later we are finally in the air and headed for Miami.

Of course, as a result of the delay, I miss my flight from Miami to San Francisco and am forced to spend an additional four hours in Miami International Airport (By the way, if this ever happens to you, stop by "Angelo's Hair Port". The owner – Angel – has been working in the same location since arriving from Cuba in 1958. His haircutting abilities are rivaled only by his stories. And, he does an amazing straight razor shave).

I finally land in San Francisco at 4pm. After a one-hour drive, I arrive home; say “hello” to the family and drop into a coma - a very deep coma. Total travel time almost 30 hours.

And stories like this don't make me feel much better.

Friday Dec 08, 2006

Planting seeds during the holidays

Like many parents, my wife and I feel conflicted during the holidays. On the one hand, we experience warm nostalgic enjoyment as we watch the children rip into their presents. But, at the same time, we feel a need for them to understand the value of giving to others.

Unfortunately, there is no stronger force in the universe than my son's focus on the acquisition of Legos during the month of December. It is unwavering, unbreakable and impervious to my paternal pleas that he think of others.

A few years ago, we tried something in order to better create a connection between our children and charitable giving. We gave each of them a sum of money to donate to the charity of their choice. The only requirement was that they had to research the charity, explain why it was selected and what portion of their donation would actually go to the recipients (after administrative expenses).

Our success was mixed. Each year, my youngest would select any charity that helps “puppies”. He wasn't interested in considering other organizations and he didn't spend much time in the selection process. For him, it's just about the puppies. One year, my daughter selected a charity devoted to the eradication of breast cancer. She almost drove us to poverty with her unexpectedly effective fund raising abilities (we agreed to match whatever she raised). Another child tended to select only the Red Cross. Obviously a wonderful organization, but I am fairly certain that his selection was based of efficiency – “get it over with, get Dad off my back and get to thinking about my presents”.

This year, we decided to do something different. I've been reading about the positive impact of “micro lending” or “micro credit”. It received attention recently when the Nobel Peace Prize went to Muhammed Yunus for his work in this area. (I just ordered his book). The concept is that many of the world's citizens are not able to avail themselves of loans from traditional banking systems. These people generally don't have collateral or a credit history; the needed loan amounts are small and the ability to pay interest limited. Overall, not an attractive market segment for most financial institutions.

Micro financing institutions (MFIs) identify and qualify potential loan recipients. The MFI then raises the loan amount through the aggregation of smaller loans from individual lenders around the world. The MFI (usually a charitable organization) administers the loan and also its repayment.

Because of the Internet, participation in micro lending has exploded. Why? First, it's a relatively easy way for lenders to contribute. You just use your credit card or Paypal account over the web. Second, the global reach of the Internet provides the greatest access to potential lenders. And, third, the Internet enables a direct sense of relationship between the lender and the recipient. Websites for most MFI's include individual pages for each loan recipient. These usually contain a photograph and personal information about the person, their history of repayment of past loans and intended use of the proceeds. As the loan is repaid, the website is updated and each lender's balance credited. And, here's what I really find fascinating. With most micro loans, no collateral is required - yet the repayment rate is greater than 95%.

So this year, we gave each child money to loan through an MFI. There are many of them, but we are using Kiva. As the children read the stories about the different people seeking loans you could sense a connection being made. When I asked why they wanted to fund a given loan, the answers included things like: “they will use the money to hire someone else, which will help their community” or “they have repaid a loan successfully in the past” or “she is supporting her entire family with her business” or, more importantly, “the amount they need for their business is less than what all my Legos cost.”

I’m not sure how effective this will be, but it looks promising. My daughter was excited to tell us that her loan recipient (a barber in Uganda who is requesting a loan to expand his business) is now fully funded. And, my son is already looking for additional loans to fund after his initial loan is repaid.

Planting seeds.

Sunday Dec 03, 2006

IP Attorneys are Fun People

I was going to devote this blog to the recent U.S. Supreme Court hearing in KSR v. Teleflex, but Dennis Crouch has a provided a good overview along with links to the pleadings and hearing transcript. This is one of the most significant IP cases in recent years because the court will provide guidance on what is "obvious" for purposes of a claimed innovation. If something is obvious, it can't be patented. If the court broadens the definition, it will lead to a higher number of patents - and likely an increase in litigation.

In reading the court transcript, you can see how the parties and the court wrestle with how properly to define "obvious" for purposes of U.S. Code: Title 35. To be candid, although the case is tremendously significant, it isn't exactly scintillating reading. In fact, IP cases rarely are. As a result, IP attorneys have a reputation as being the humorless "geeks" of their profession.

But, in their defense, let me say that IP attorneys are some of the funniest people I know. Don't believe me?

What about Claim 9 of this patent application. Or, how about the ability to rap the US patent code)? (And, if you're part of Sun's IP Legal team, you can dance to it as well!).




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