Preparing for a Board Meeting: Advice for New General Counsels from Seasoned GCs

As general counsel, your job is to enable the content and space for meaningful board discussions. For new counsel at a high-growth company, the to-do list can be daunting.

At The L Suite, our members have seen it all, and they're happy to provide a peek behind the curtain. Below is a compilation of their top tips and insights.

Key Takeaways:

• In addition to keeping the company abreast of potential risks, adopt a more nuanced role in the boardroom — anticipating meeting dynamics and fostering an environment conducive to doing business.

• There's also a laundry list of administrative tasks to accomplish before and after the meeting: you’ll need to shape the agenda, gather written consents, and prepare materials like the CEO/chair note, proposed resolutions, and background material.

• While tech companies tend to adopt an “all hands on deck” mindset, keep board meetings to only the people who are absolutely necessary to present or answer questions.

• Remember that any notes taken during board meetings could be discoverable, so remind directors to keep them brief and professional, and collect them after the meeting.

• Look for ways to build relationships with board members outside of the official meetings, such as offsite gatherings or fireside chats.

Your Role as GC

Today’s general counsels must ensure management and the board are regularly reviewing the key enterprise risks facing the company, said Danielle Sheer, Chief Legal Officer at publicly-traded cyber resilience company Commvault.

And at an early-stage startup, you may need to start by coaching C-Suiters on how to engage with the board. For many entrepreneurs, this is new territory. "There's a lot of advocacy involved," said Meenakshi Lakhanpal, General Counsel and Chief Compliance Officer at social gaming solution provider Blazesoft. "Lawyers are typically really good at putting processes together. Founding members may not be familiar with the intricacies of how a board functions, so [it's your job] to help them understand."

"[You're often] advising founders how to interact with investors, identifying silos, and maintaining a consistent message," said Arezou Arefi-Afshar, General Counsel at back-office tech company 3R US.

How to Prepare Before the Meeting

Meticulous planning can pay off big time on the big day. Below is a list of materials you can expect to have a hand in drafting before a board meeting:

• An agenda outlining the topics and order of discussion

• A presentation deck including visual references and key bullet points

• A CEO/chair note offering high-level commentary on critical issues

• Proposed resolutions listing formal decisions or actions the board needs to take

• Relevant background material providing additional context like reports or financial statements

Preparing your board for the work to be conducted at their meeting is critical. The meeting itself should enable a discussion of previously circulated materials that directors have had time to review and study. “We prepare guidebooks for the board and each committee to organize the work that must occur each quarter,” says Sheer. “In this way, the board can anticipate the work to come, and compare this work with their other boards, which makes their contribution more effective.”

"It's a time-honored tradition at every director evaluation that they feel they don't get the material [in time]," says Rishi Varma, Chief Legal and Ethics and Compliance Officer and Corporate Secretary at Cargill. In a previous GC role at Hewlett Packard Enterprise, he took steps to streamline the process, including requiring concise exec memos ahead of every meeting and systematizing agenda creation. "I put together a matrix of all of the topics… and [categorize] the items that need to be approved, including the topics we know are going to be the more meaty discussions," he says. Then, he sat down with both the CEO and chair ahead of time to walk through priorities. He also composed a "cheat sheet" summarizing the top three to five points for key parties to remember during the meeting.

In terms of how much to include in pre-meeting materials, they should be comprehensive yet concise. Summaries or highlight slides should cater to board members' limited attention spans and busy schedules.

Samir Gandhi, partner at Sidley Austin LLP, cautioned that this is not the time to show off your knowledge in 45 slides when five will suffice. He also noted that a three-inch-thick binder of board materials can be more than merely inconvenient — it can be a liability. "In hostile or litigious matters, opposing counsel loves interviewing a board member and saying, 'Did you actually read all that?' You have to look at it from that perspective," he said.

The GC Pre-Meeting Prep Checklist

Below is a quick-hitter checklist of best practices:

• Meet with executives to collaboratively draft the agenda and/or CEO/chair note.

• Work with key participants to compile a presentation deck complete with relevant reports, financial statements, and background documents.

• Work backward from the meeting to put clear deadlines on members' calendars for slide drafts and final versions.

• Provide necessary context and key details, but keep it readable.

• Distribute materials ideally a week prior.

• Prepare to advise on any legal or regulatory issues that may arise during the meeting.

• Review and include the previous meeting's minutes.

Reading the Room and Navigating Thorny Topics

If you're new to an organization, you'll need to discern who's who in the boardroom, from the chairperson to observers to outside guests like auditors.

Varma advised adding attendees on a strictly need-to-know basis. "Many people want to be in that room, but one of your jobs is to make sure that the board feels free and unfettered to have candid conversations. Often, that means limiting the participants," he said. "You really want only those members of the company who need to be there to either present the topic or answer questions on the matter."

Handling Sensitive Subjects

Board meetings can also be when touchy topics come up, from potential acquisitions to sensitive financial conversations. Directors will often look to the general counsel to ensure the board is having the discussion they need to have, and when to call for a vote. “When a sensitive matter has to be debated and decided, limit the people in the room to those who are part of providing information and making the decision, don’t rush to call for a decision if directors are not ready yet, and keep a detailed record of the conversation to protect the board’s business judgment,” says Sheer.

Arefi-Afshar noted that what folks really want in these situations is the SparkNotes. "They want the quick and dirty: What are our options? What are the risks? Are there ways we can be creative? If we choose the riskier option, what are the potential consequences? That's the basis of what you should be providing, as well as answers to any follow-up questions," she said.

Finally, key cases from the Delaware Chancery court, like Boeing and BlueBell Ice Cream, have changed guidelines on what to record from the meeting via board minutes. “Keeping a detailed record in the minutes of the discussion, identifying risks and options that were considered, could better protect the decisions of your directors, which is a sea-change from the past when lawyers wanted board minutes to say as little as possible,” says Sheer.

The Outside Counsel Question

There's a wide range of opinions on when and how to work with outside counsel in board meetings. Below is a recap of some of the benefits and risks according to members' first-hand experiences:

Benefits:

• Outside counsel can assist with taking minutes.

• They can weigh in on certain corporate matters in real-time.

• They provide an independent, third-party voice and a potential dose of objectivity.

• Their presence can preserve privilege in certain circumstances.

Risks:

• The "free" help may come at the cost of ulterior motives or mismatched interests.

• They may undermine your role as the go-to legal advisor.

• They may not be able to deliver things like minutes as expediently as you'd prefer.

Kala Sherman-Presser, General Counsel at pay-over-time platform Wisetack, noted that the GC/outside counsel relationship often comes down to personal compatibility. "When I have counsel I like and trust, it can be a great asset to have them in the room," she wrote. "Their presence should not change the fact that you're the one in the driver's seat."

She added that she's adopted a hybrid approach to working with outside counsel, presenting her own slides and managing approvals while having counsel record minutes, which she says allows her to more deeply engage with board members in the moment.

Processes for Distribution

As for how minutes are distributed, L Suite members employ a spectrum of solutions, with many opting for software platforms like Diligent to aid in the process.

A few additional tips on distribution include:

• Targeted Distribution: Send the minutes only to board members, required observers, and essential executives. When minutes contain sensitive details, especially regarding compensation or equity, distribute them separately and directly to the board to ensure confidentiality.

• Restricted Access: Store minutes in a secure folder accessible only to select individuals to maintain privacy and control.

• Executive Summaries: To keep non-board executives in the loop, consider preparing a "general state of the business" presentation covering key takeaways, separate from the minutes.

A Note on Note-Taking

Directors may ask to take notes during board meetings. When providing an answer, keep in mind that notes are discoverable — whether they're AI-generated or handwritten. "That's all in the record, technically, and could be potentially subpoenaed," said Gandhi. (Varma quipped that when he reminds directors about this, he gives the tongue-in-cheek advice they write "ladies and gentleman of the jury" at the top of whatever notes they plan to take.)

If members do want to take notes, it's a good idea to:

• Ensure they don't leave any questions unanswered.

• Ensure they look professional (no doodles or grocery lists on the margins).

• Collect them at the end of the session.

Handling Consents

As GC, handling consents is another of your core duties. You'll likely be the one drafting consent documents and gathering signatures from board members. In this process, you'll need to ensure that written consents adhere to legal requirements like Delaware's General Corporation Law (DGCL), as well as the company’s bylaws.

As for relying on software like DocuSign for consents, the L Suite jury is split. While some tout this approach as a time-saver — and necessary in cases where the board is geographically dispersed — others note there are times when contextless consents can backfire. "Conversations are where the magic happens," advised Arefi-Afshar. "People don't want surprises in the boardroom, but they also don't want surprises that connote that things are happening within the company they're not aware of or don't understand."

Beyond the Meeting: Building Relationships

As GC, you need to think beyond the four walls of the boardroom. Seul recommended taking advantage of in-person board meetings to foster relationships before and after the event itself. "There are often opportunities to do things like visit a customer site or have a dinner before the meeting," he said, noting that these interactions can build camaraderie.

One L Suite member said that her company typically dedicates two days to board meetings for this exact purpose. The first night involves a meet-and-greet session with the board over happy hour. A different group of company leaders participates in the event each quarter, which is a good opportunity to introduce a variety of leaders to the board in a casual setting. Alternatively, some members report hosting "fireside chat"-style events ahead of quarterly board meetings to promote connection and transparency.

For GCs, navigating the complexities of board meetings is a crucial aspect of your role, as well as invaluable experience for your career. If you're looking to expand your knowledge, connect with peers, and access a wealth of collective wisdom, apply to become an L Suite member today.

About the L Suite

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