{"id":202,"date":"2015-07-20T07:26:35","date_gmt":"2015-07-20T13:26:35","guid":{"rendered":"http:\/\/ericlambert.net\/blog\/?p=202"},"modified":"2015-07-20T07:26:35","modified_gmt":"2015-07-20T13:26:35","slug":"six-tips-for-working-efficiently-and-effectively-with-your-attorney-in-contract-negotiations","status":"publish","type":"post","link":"https:\/\/ericlambert.net\/blog\/2015\/07\/20\/six-tips-for-working-efficiently-and-effectively-with-your-attorney-in-contract-negotiations\/","title":{"rendered":"Six Tips for Working Efficiently and Effectively With Your Attorney in Contract Negotiations"},"content":{"rendered":"

Some people dread having to go to their legal counsel\u00a0with a contract for review and negotiation.\u00a0 \u201cIt\u2019s the department of business prevention\u201d; \u201cwe\u2019ll never get it done\u201d; \u201cmy attorney doesn\u2019t understand what the business needs.\u201d \u00a0Quite the contrary. In-house counsel want<\/u> to partner with you to facilitate the company\u2019s business objectives and help the company succeed, while at the same time managing risk to our client – the company. Ensuring\u00a0you and your attorney work together as effectively and efficiently as possible is key to this process.\u00a0 Here are 6 tips to keep in mind when working with your attorney in contract negotiations.<\/p>\n

    \n
  1. Contract negotiation is a partnership, not a handoff. <\/strong>Contracts contain both legal and business terms. We will largely defer to you on the business terms (unless it\u2019s something we\u2019ve seen before that we know is a problem), and will focus on ensuring the legal terms are in order. You need to be a part of the negotiation process to provide guidance and approvals on business terms as they are negotiated.\u00a0 If you submit a contract for review and then just wait for an email saying it\u2019s done and signed, it will slow down the process as we\u2019ll have to reach out to you, or worse, make assumptions about what your business needs are or what you are OK agreeing to in the contract.<\/li>\n<\/ol>\n
      \n
    1. Negotiations can take time \u2013 don\u2019t wait until the last minute to engage Legal.<\/strong> Negotiations can take time, but attorneys don\u2019t want to drag them out \u2013 we have a lot of work on our plate, and we want to enable you to start working with the company or vendor so you can meet our corporate objectives. However, part of our job is also to negotiate terms that protect the company, and to help you navigate around the pitfalls and mountains.\u00a0 If you come to us at the last minute and there are major issues (e.g., risks we can\u2019t accept without high level approval), it\u2019s a no-win situation \u2013 we feel you\u2019re not giving us time to do our job as attorneys, you\u2019re unhappy because the agreement can\u2019t get done by your desired completion date, your boss is unhappy because you missed your deadline, others whose work depends on the negotiated partnership or vendor relationship are negatively affected, etc.<\/li>\n<\/ol>\n

      Build time for the legal review process into your project timeline, and if you\u2019re unsure ask your attorney how much time they think it will take before you even get to the contract phase. \u00a0\u00a0Engage Legal with questions on business terms or legal terms early in the process if it will help streamline the negotiation later on — we can help you structure business terms up front while they are being negotiated, to make the negotiation process go more smoothly.<\/p>\n

        \n
      1. Provide complete business terms when you submit your contract request.<\/strong> Unless you are requesting a standard form agreement on your company\u2019s paper, we need to know as much detail on the business terms as you can provide when you submit a contract request to Legal. Otherwise, we may have to make assumptions about what you\u2019re looking for, and if we\u2019re wrong it will mean redrafting work which will slow down the process. If you have a term sheet, attach it. If not, summarize the business terms in the request with as much detail as you can provide.\u00a0 Include the full legal name of the other party, and their street address.\u00a0 We\u2019ll call you to flesh out any terms on which we have questions or need more information or detail.\u00a0 Also, read the draft carefully before you forward it to the other side.\u00a0 If the contract doesn\u2019t match the business terms that were discussed, we\u2019ll stumble right out of the gate on the contract negotiation.<\/li>\n<\/ol>\n
          \n
        1. When you get a draft or get back redlines, add your comments on the business terms before submitting it to Legal.<\/strong>\u00a0 If you send a draft on the other side\u2019s paper or you receive redlines from the other side, go through it before you send it to Legal and mark it up with your comments and edits to any business terms.\u00a0 If you need to reach out to internal business owners for their input or approval (e.g., Finance on payment terms, IT on SLAs, etc.), either do it before sending the draft to Legal, or indicate in the draft that you\u2019re following up on an open business point before you send it to Legal.\u00a0 Otherwise, the internal discussion draft you get from Legal will just include notes on where you need to provide input on business terms, slowing down the process.<\/li>\n<\/ol>\n
            \n
          1. Listen to your lawyer\u2019s suggestions \u2013 we\u2019ve done this before.<\/strong> We have been in\u00a0many\u00a0contract negotiations, and have seen most contract provisions before.\u00a0 We often know what provisions work with the company\u2019s internal processes and requirements, and how third parties are likely to negotiate and come out on a given provision. If you come in with a business term or a position on an open point that we think may be a tough sell to the other party or is \u201cout of the box\u201d from an internal process perspective, our experience can help you avoid going down dark alleys or dead ends in the negotiation.\u00a0 Good attorneys don\u2019t just spot problems, but also offer alternatives to try to find a workable solution.\u00a0 We may be able to offer an alternative provision or wording that meets your business needs, works for the other party, and satisfies your internal processes.<\/li>\n<\/ol>\n

            Attorneys usually have a sense as to which approach to contract negotiation (exchanging redlines right away, hopping on a call with the other side right away, exchange redlines first then get on a call, etc.) will be most effective for a particular contract or third party.\u00a0 Your instinct may be to jump on a call with the other side as soon as you send or receive a draft, but in some cases that may end up unintentionally slowing down the negotiation. Tech-savvy attorneys may also suggest leveraging technological tools to increase speed and efficiency, e.g., WebEx online conferencing to make edits to the draft in real-time as if all parties are sitting in a conference room together.<\/p>\n

              \n
            1. Attorneys will advise on the risks and share their opinion, but the business needs to \u201ccall the ball.\u201d <\/strong>Every contract involves risks and rewards.\u00a0 My job is to shift as much risk as I can (e.g., through contract terms), and to help explain how to mitigate risks (e.g., through internal process or procedure to control it).\u00a0 Any remaining risk needs to be accepted (we understand but the benefits are worth it) or rejected (the benefits aren\u2019t worth it) by the business.\u00a0 Unless something is illegal or there\u2019s simply too much pure legal risk to proceed, the attorney isn\u2019t the one who should be making that risk decision.\u00a0 We may share our opinion, but we can\u2019t make the decision.\u00a0 You (or someone higher up in the company) needs to make the risk decision after weighing the pros and cons. \u00a0If no one wants to be the decision-maker, the negotiation will grind to a halt.<\/li>\n<\/ol>\n","protected":false},"excerpt":{"rendered":"

              Some people dread having to go to their legal counsel\u00a0with a contract for review and negotiation.\u00a0 \u201cIt\u2019s the department of business prevention\u201d; \u201cwe\u2019ll never get it done\u201d; \u201cmy attorney doesn\u2019t understand what the business needs.\u201d \u00a0Quite the contrary. In-house counsel … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[13,4,7],"tags":[27,54,58,130],"class_list":["post-202","post","type-post","status-publish","format-standard","hentry","category-contracts","category-legal","category-negotiation","tag-attorney-client","tag-contract-negotiation","tag-contracts","tag-negotiation"],"_links":{"self":[{"href":"https:\/\/ericlambert.net\/blog\/wp-json\/wp\/v2\/posts\/202","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ericlambert.net\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ericlambert.net\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ericlambert.net\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/ericlambert.net\/blog\/wp-json\/wp\/v2\/comments?post=202"}],"version-history":[{"count":0,"href":"https:\/\/ericlambert.net\/blog\/wp-json\/wp\/v2\/posts\/202\/revisions"}],"wp:attachment":[{"href":"https:\/\/ericlambert.net\/blog\/wp-json\/wp\/v2\/media?parent=202"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ericlambert.net\/blog\/wp-json\/wp\/v2\/categories?post=202"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ericlambert.net\/blog\/wp-json\/wp\/v2\/tags?post=202"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}