A round-up of my Reflections from a Contracts Lawyer posts:
Part 1: They're not as prickly as they look
Part 2: Contracts are like the sea, best when they're crystal clear
Part 3: Define your own terms
Part 4: They're alive!
Part 5: There's karma in them contracts
Wednesday, 6 April 2011
Reflections of a Contracts Lawyer: Part 5
Reflection No 5: There's karma in them contracts
As a lawyer in private practice I was instructed by a tour operator in relation to a contract put forward by one of their suppliers who provided a service which my client could advertise its holidays on. The contract was the supplier's standard form contract and one of those contracts which just didn't make any sense at all just because it was rubbish. You know the type of thing:
"This contract shall not be binding, sign here if you agree"....and....
"The contract can be terminated at any time for any reason by anyone, but termination of the contract under this clause will not affect the standing of the contract"
Eh? Exactly.
So I spent a fair amount of time tidying up the rubbish, not just making it all work for my client, but also for the supplier such was the nonsense that was in this standard contract.
Its quite annoying when you have to improve someone else's contract, as @BrettTechLawyer will testify:
Fast forward to when I myself was working in-house at a completely different tour operator, but who just happened to use the same supplier's service.
Enter the contract.
And the memories.
And what a pleasant surprise. There was all my corrective drafting, as I had written it, word for word in my previous life in private practice a good couple of years before. Customer-friendly.
Smug lawyer. Karmic contract.
For the rest of my Reflections post, please see: Part 1: They're not as prickly as they look, Part 2: Contracts are like the sea, best when they're crystal clear, Part 3: Define your own terms and Part 4: They're alive!
As a lawyer in private practice I was instructed by a tour operator in relation to a contract put forward by one of their suppliers who provided a service which my client could advertise its holidays on. The contract was the supplier's standard form contract and one of those contracts which just didn't make any sense at all just because it was rubbish. You know the type of thing:
"This contract shall not be binding, sign here if you agree"....and....
"The contract can be terminated at any time for any reason by anyone, but termination of the contract under this clause will not affect the standing of the contract"
Eh? Exactly.
So I spent a fair amount of time tidying up the rubbish, not just making it all work for my client, but also for the supplier such was the nonsense that was in this standard contract.
Its quite annoying when you have to improve someone else's contract, as @BrettTechLawyer will testify:
Fast forward to when I myself was working in-house at a completely different tour operator, but who just happened to use the same supplier's service.
Enter the contract.
And the memories.
And what a pleasant surprise. There was all my corrective drafting, as I had written it, word for word in my previous life in private practice a good couple of years before. Customer-friendly.
Smug lawyer. Karmic contract.
For the rest of my Reflections post, please see: Part 1: They're not as prickly as they look, Part 2: Contracts are like the sea, best when they're crystal clear, Part 3: Define your own terms and Part 4: They're alive!
Thursday, 24 March 2011
Panel Time
Last week I had the pleasure of sitting on a panel at an event hosted by Cancer Research UK, discussing Social Media & The Law.
The panel included myself, Matthew Eltringham the Assistant Editor, Interactive Social Media & Development at the BBC, Robert Blamires an Associate Solicitor at Field Fisher Waterhouse and Yvette Deerness, the host of the event, and Senior Legal Advisor at Cancer Research UK. The event was attended by the Cancer Research staff who man the front line of the charity's social media work.
This charity takes social media seriously! Just take a look at some of the ways you can follow Cancer Research through social media. Key goals are to promote campaigns, support fundraising activity and to provide support to those suffering from cancer. I've said before that the most important aspect of social media is the community which it can create, and so it was no surprise that managing, moderating and supporting that community without falling foul of the law was top of the agenda at the event.
A healthy debate ensued covering social media activity on own sites and third party sites, how to strike the right balance between the benefits and insight which user generated content can offer against managing the risk of liability for defamation or infringement of intellectual property rights, the practicalities of using content obtained through the creative commons system, enforcing acceptable use policies in a fair and consistent manner, managing complaints, and the range of legal issues affecting promotion mechanics.
A fantastic charity with fantastic people behind it who really have their finger on the pulse of social media. If you'd like to donate to the charity or find our more about the wonderful work which Cancer Research carries out, please visit Cancer Research UK.
The panel included myself, Matthew Eltringham the Assistant Editor, Interactive Social Media & Development at the BBC, Robert Blamires an Associate Solicitor at Field Fisher Waterhouse and Yvette Deerness, the host of the event, and Senior Legal Advisor at Cancer Research UK. The event was attended by the Cancer Research staff who man the front line of the charity's social media work.
This charity takes social media seriously! Just take a look at some of the ways you can follow Cancer Research through social media. Key goals are to promote campaigns, support fundraising activity and to provide support to those suffering from cancer. I've said before that the most important aspect of social media is the community which it can create, and so it was no surprise that managing, moderating and supporting that community without falling foul of the law was top of the agenda at the event.
A healthy debate ensued covering social media activity on own sites and third party sites, how to strike the right balance between the benefits and insight which user generated content can offer against managing the risk of liability for defamation or infringement of intellectual property rights, the practicalities of using content obtained through the creative commons system, enforcing acceptable use policies in a fair and consistent manner, managing complaints, and the range of legal issues affecting promotion mechanics.
A fantastic charity with fantastic people behind it who really have their finger on the pulse of social media. If you'd like to donate to the charity or find our more about the wonderful work which Cancer Research carries out, please visit Cancer Research UK.
Thursday, 10 February 2011
Speaking Event
I'm pleased to announce that I'll be speaking at the in-house lawyer breakfast seminar at Pannone LLP, Manchester on Thursday 31 March 2011.
I'll be discussing how in-house lawyers can use social media to its best effect. Other items on the agenda (which I won't be speaking on!) include:
Contact law@pannone.com for more information about the seminar.
POST SCRIPT - Due to popular demand, the event will now also be running for a second time on 6 April. Hope to see you there.
I'll be discussing how in-house lawyers can use social media to its best effect. Other items on the agenda (which I won't be speaking on!) include:
- Competition law compliance
- Review of recent breach of contract cases
- Data Protection Act compliance and update
- Bribery Act Part 2
- Running a successful due diligence process
- Phasing out the default retirement age
Contact law@pannone.com for more information about the seminar.
POST SCRIPT - Due to popular demand, the event will now also be running for a second time on 6 April. Hope to see you there.
Tuesday, 8 February 2011
Reflections of a Contracts Lawyer: Part 4
Reflection Number 4: They're alive!
Image is of a Tasmanian Devil. In common with contracts, Tasmanian Devils give a nasty bite if not treated correctly. Unlike Tasmanian Devils, contracts are not best kept locked away in drawers in the furthest flung corners of the earth.
In my younger days, I would often encounter a Project or Contracts Manager who would sigh heavily at the time which it had taken to review a contract, negotiate the detail and baton down a signature, and then triumphantly observe that there was another pile of paperwork which, with a bit of luck and a following wind, wouldn't need to see the light of day again. Instantly belittling the need for the amount of (my hard) work which had just gone into that paperwork.
I've heard it from well-meaning and less-arrogant colleagues before as well, pleased with the work which has been achieved in the contract negotiation "Good job" they say as they file it away the copy document in their bottom drawer (never give away the original document when in-house), along with the contract guide I'd crafted for them to make their life easier and the contract user-friendly , "now we can let that gather some dust while we get on with the proper job". As though the job done (by me) is not proper.
I've never subscribed to that theory. The best Projects and Contracts Managers which I've worked with keep their contracts close at hand and use them as a daily weapon against their suppliers to ensure deliveries are made on time, service levels are met, software performs as it should and (you'll be surprised how much this next one is overlooked) invoices are accurate, so that we're not charged a penny too much for the privilege.
And, as the project which it manages evolves, so the contract should evolve too. A contract is a living thing. And indeed, the Project or Contracts Manager managing that project is best served by keeping up to speed with this evolution.
A case in point:
A perplexed manager once came to visit me, in one hand a hat and in the other a material sample. Let's call the sample, Material A, and lets call the material which the hat is made out of, Material B. Let's call this whole event, The Hat Saga*.
The Hat Saga essentially involved the following (albeit in a much longer, more drawn-out, microscopic and draining way over the course of about 6 months):
"Melanie, the hats delivered are made out of Material B. I wanted them to be made out of Material A."
"Oh no. Do you have a copy of the Contract with you please?"
"Er, no, (for I am only the person responsible for it) have you got a copy?"
I dip into my Contracts Register.
"Yes I have. Lets see, oh yes Schedule 2, "The Matrerial". It says "TBC". What did you eventually agree was the correct material?"
"Material A"
"OK, well lets put a call into the supplier then."
Call to the supplier revealed that, unsurprisingly, they were under the impression that they agreed it was Material B.
The following discussion was had every which way possible consistently over many days and weeks. Me: "Are you absolutely 100% certain you've never agreed Material B?"
"Absolutely. Never"
"Any documents say otherwise?
"None"
"Are you sure?
"Absolutely. Yes"
"Absolutely? Our hats are very precious to us, they are very expensive. I'm about to commence proceedings as we have spent so much money on these entirely incorrect hats. That's serious and expensive stuff. It will be embarrasing if we're wrong."
"Absolutely. Yes."
Some cost, time, effort and energy later:
Manager approaches my desk "Erm, Melanie, could this be relevant?"
"I don't know, let me see. Oh look its a document with Material B attached to a letter from the supplier asking if Material B would be a suitable alternative and which you've counter-signed. Yes. I'd say that's relevant."
The error in this particular instance was that this correspondence which changed the contract was never logged and associated with the contract by the manager. Ironically, clearly the hat supplier hadn't saved a copy of the relevant correspondence either. Frustrating to say the least (I do remember collapsing on my desk with my head in my hands for quite some time afterwards).
So, what was the point of this post? Oh yes, contracts are alive, please check in on them once in a while.
*subject matter altered to protect the innocent.
For more of my reflections check out Reflections of a Contracts Lawyer: Part 1 Reflections of a Contracts Lawyer: Part 2 and Reflections of a Contracts lawyer: Part3
In my younger days, I would often encounter a Project or Contracts Manager who would sigh heavily at the time which it had taken to review a contract, negotiate the detail and baton down a signature, and then triumphantly observe that there was another pile of paperwork which, with a bit of luck and a following wind, wouldn't need to see the light of day again. Instantly belittling the need for the amount of (my hard) work which had just gone into that paperwork.
I've heard it from well-meaning and less-arrogant colleagues before as well, pleased with the work which has been achieved in the contract negotiation "Good job" they say as they file it away the copy document in their bottom drawer (never give away the original document when in-house), along with the contract guide I'd crafted for them to make their life easier and the contract user-friendly , "now we can let that gather some dust while we get on with the proper job". As though the job done (by me) is not proper.
I've never subscribed to that theory. The best Projects and Contracts Managers which I've worked with keep their contracts close at hand and use them as a daily weapon against their suppliers to ensure deliveries are made on time, service levels are met, software performs as it should and (you'll be surprised how much this next one is overlooked) invoices are accurate, so that we're not charged a penny too much for the privilege.
And, as the project which it manages evolves, so the contract should evolve too. A contract is a living thing. And indeed, the Project or Contracts Manager managing that project is best served by keeping up to speed with this evolution.
A case in point:
A perplexed manager once came to visit me, in one hand a hat and in the other a material sample. Let's call the sample, Material A, and lets call the material which the hat is made out of, Material B. Let's call this whole event, The Hat Saga*.
The Hat Saga essentially involved the following (albeit in a much longer, more drawn-out, microscopic and draining way over the course of about 6 months):
"Melanie, the hats delivered are made out of Material B. I wanted them to be made out of Material A."
"Oh no. Do you have a copy of the Contract with you please?"
"Er, no, (for I am only the person responsible for it) have you got a copy?"
I dip into my Contracts Register.
"Yes I have. Lets see, oh yes Schedule 2, "The Matrerial". It says "TBC". What did you eventually agree was the correct material?"
"Material A"
"OK, well lets put a call into the supplier then."
Call to the supplier revealed that, unsurprisingly, they were under the impression that they agreed it was Material B.
The following discussion was had every which way possible consistently over many days and weeks. Me: "Are you absolutely 100% certain you've never agreed Material B?"
"Absolutely. Never"
"Any documents say otherwise?
"None"
"Are you sure?
"Absolutely. Yes"
"Absolutely? Our hats are very precious to us, they are very expensive. I'm about to commence proceedings as we have spent so much money on these entirely incorrect hats. That's serious and expensive stuff. It will be embarrasing if we're wrong."
"Absolutely. Yes."
Some cost, time, effort and energy later:
Manager approaches my desk "Erm, Melanie, could this be relevant?"
"I don't know, let me see. Oh look its a document with Material B attached to a letter from the supplier asking if Material B would be a suitable alternative and which you've counter-signed. Yes. I'd say that's relevant."
The error in this particular instance was that this correspondence which changed the contract was never logged and associated with the contract by the manager. Ironically, clearly the hat supplier hadn't saved a copy of the relevant correspondence either. Frustrating to say the least (I do remember collapsing on my desk with my head in my hands for quite some time afterwards).
So, what was the point of this post? Oh yes, contracts are alive, please check in on them once in a while.
*subject matter altered to protect the innocent.
For more of my reflections check out Reflections of a Contracts Lawyer: Part 1 Reflections of a Contracts Lawyer: Part 2 and Reflections of a Contracts lawyer: Part3
Say what?
I've recently been reminded of how individual companies and organisations not only carry their own individual corporate image and corporate culture, but also their own corporate parlance and turn of phrase. But can this choice of parlance also be a reflection of the corporation which utters it?
Image copyright of www.savagechickens.com
When I joined my current employer, I was very quickly introduced to the concept of "bandwidth". No, I wasn't just a late starter when it came to getting online, my colleagues would be commenting on their capacity to carry out a project within a particular timescale. It's still used a lot today and I love this expression! It's completely digital. Which is good because Latitude is of course a digital company, and the company name is Latitude, and latitude is a bit like bandwith. Sort of. You get the idea.
Back when I worked in one private practice firm, I wasn't doing my job if I didn't have "shedloads" to do at any one moment in time. A sub-conscious reflection of the name of the firm, Eversheds, I wonder?
At a different firm, not a day went by when I wasn't invited to a "catch-up". No link between the company and the phrase here, just genuinely nice colleagues who had a lot to catch up on after a day spent "picking all of that low hanging fruit".
So, why have I recently been reminded of this link between parlance and organisation? Well, my current employer is now part of a larger group. It has been for a couple of weeks. Within that same time I've been asked a question which I've never been asked before. On 3 separate occasions by 3 separate people. "So, if we cut you down the middle, what would we find?"
Image copyright of www.savagechickens.com
When I joined my current employer, I was very quickly introduced to the concept of "bandwidth". No, I wasn't just a late starter when it came to getting online, my colleagues would be commenting on their capacity to carry out a project within a particular timescale. It's still used a lot today and I love this expression! It's completely digital. Which is good because Latitude is of course a digital company, and the company name is Latitude, and latitude is a bit like bandwith. Sort of. You get the idea.
Back when I worked in one private practice firm, I wasn't doing my job if I didn't have "shedloads" to do at any one moment in time. A sub-conscious reflection of the name of the firm, Eversheds, I wonder?
Working in-house at a tour operator, colleagues were always polite enough to check if I was "snowed under" before asking me to do any work for them. Actually, I was never snowed under, I always opted for MyTravel's winter sun holidays instead.
At a different firm, not a day went by when I wasn't invited to a "catch-up". No link between the company and the phrase here, just genuinely nice colleagues who had a lot to catch up on after a day spent "picking all of that low hanging fruit".
So, why have I recently been reminded of this link between parlance and organisation? Well, my current employer is now part of a larger group. It has been for a couple of weeks. Within that same time I've been asked a question which I've never been asked before. On 3 separate occasions by 3 separate people. "So, if we cut you down the middle, what would we find?"
Gulp.
I'll continue to watch the link between companies and their choice of phrase more carefully, but for now I'm just relieved that my new colleagues want to get to know me so well!
Tuesday, 1 February 2011
The In-House Lawyer Meets The Lawyer
Last Wednesday I received a call from The Lawyer magazine asking me for some time for an interview to appear in their in-house lawyer profile section. I was over the moon to be asked to feature in this prestigious publication, and even more excited that they sent a photographer round to Latitude HQ for a photoshoot the very next day. All very showbiz indeed.
The photoshoot co-incided with 1. stage 1 of a completion meeting at Latitude and 2. much more stressful than any completion meeting as I'm sure you'll all agree, a bad hair day, making it completely and utterly impossible to gaze into the distance with an air of nonchalance.
So huge thanks to The Lawyer magazine, and in particular Joanne Harris, for the write-up quirkily entitled Tweet Shop which appeared online just a few days later.
The photoshoot co-incided with 1. stage 1 of a completion meeting at Latitude and 2. much more stressful than any completion meeting as I'm sure you'll all agree, a bad hair day, making it completely and utterly impossible to gaze into the distance with an air of nonchalance.
So huge thanks to The Lawyer magazine, and in particular Joanne Harris, for the write-up quirkily entitled Tweet Shop which appeared online just a few days later.
Thursday, 27 January 2011
What LinkedIn Maps tells us about Lawyers
LinkedIn has introduced a quirky new tool for users to visualise their connections and professional network, its called LinkedIn Maps. I've created my own LinkedIn map here:
So what does my LinkedIn Map tell me:
So what does my LinkedIn Map tell me:
- Well, firstly that the LinkedIn Maps gadget is pretty intelligent! Within seconds it created this map for me and categorised my networks efficiently and...erm...categorically.
- The 2 main hubs of my network (the orange hub and the dark blue hub) are connections I've met through industries I've worked in as an in-house lawyer, those being digital media and travel respectively. These hubs are full of people I've met in business, in industry, non-lawyer contacts. These people use LinkedIn big time.
- Despite being a lawyer myself, knowing lots of lawyers and working in private practice for a good proportion of my career, my lawyer connections from private practice using LinkedIn only account for a sprinkling of my LinkedIn contacts, the pink hub and the yellow hub (spot them if you can). Now, on LinkedIn, I hunt for colleagues and business acquaintances I've met in all walks of life in equal measure, so this tells me that, as a breed, the legal industry is significantly under-representing itself on LinkedIn.
- Lawyers I've met solely through the power of social media over the last year, based in both the UK (the green hub) and overseas (the purple hub), and who I've connected with on LinkedIn now out-number my "in the flesh" private practice lawyer connections from over many years who've connected on LinkedIn.
- As a rule, I used to only connect on LinkedIn with individuals I'd physically met or done business with, but social media threw that rule out of the window for me. I'll now connect with individuals I know only through social media channels even if I haven't met them in the real world, where I know there's a beneficial professional relationship, or even if I just like them. However, I still won't connect with individuals who I haven't met with, if I don't know them through a social media channel. Lawyers, if you're not using social media and your competitors are, they have the opportunity to up-turn your established client relationships.
So, in summary: Lots of people use LinkedIn. Not many lawyers do. Lawyers who do use social media are rapidly stealing a march on their counterparts who don't. In terms of making connections and cementing professional relationships, social media works.
Monday, 24 January 2011
Legal Village
A quick mention and thank you to Legal Week who are picking up some of my selected blog posts to feature in their Legal Village, an online community of blawgers sharing their random, and sometimes even serious, points of view for the entertainment of lawyers on coffee breaks across the nation.
Image copyright of brewbooks on Flickr, and which features Legal Grind Coffee in Santa Monica.
Twitteratigate:The tide has turned
Following on from my post below, it seems that Twitter is causing a stir amongst lawyers in more ways than one.
It was only October of last year when Legal Week brought social media use amongst lawyers into the mainstream. For more on that, see The next big thing: is the social media tide turning? If you look at the comments against those original Legal Week articles you'll see there was discussion brewing early-doors about who should feature in reviews of the legal social media scene and for what reason.
Fast forward from October to the present day, and a relative social media scandal has exploded. A scandal so deep it's even worthy of the accolade of a gate. Twitteratigate. The whole story of which can be told no better than Brian Inkster in The Time Blawg.
Finally lawyers are getting it. This is what makes social media work: the ability to make it personal, share your perspective, explore what works and what doesn't, mould the message and the media which carries it.
I do indeed believe that the tide has turned.
It was only October of last year when Legal Week brought social media use amongst lawyers into the mainstream. For more on that, see The next big thing: is the social media tide turning? If you look at the comments against those original Legal Week articles you'll see there was discussion brewing early-doors about who should feature in reviews of the legal social media scene and for what reason.
Fast forward from October to the present day, and a relative social media scandal has exploded. A scandal so deep it's even worthy of the accolade of a gate. Twitteratigate. The whole story of which can be told no better than Brian Inkster in The Time Blawg.
Finally lawyers are getting it. This is what makes social media work: the ability to make it personal, share your perspective, explore what works and what doesn't, mould the message and the media which carries it.
I do indeed believe that the tide has turned.
The Times Law Top 10 Legal Tweeter
I'm proud to be included in The Times Law Top 10 of legal tweeters! What an honour.
The article is behind a paywall, so I had to pay a small fee to see my name in lights. Why its time to open a corporate Twitter account celebrates the rise of Twitter amongst the legal profession and The Times has chosen to describe me as "a social media evangelist". This headline characteristic is a reflection of how rapidly the emphasis of this very blog stepped away from a log of legal events affecting my industry to that of a lawyer experimenting with how lawyers can use social media to its best effect. A year ago, very few people had heard of the in-house lawyer at Latitude, but now I receive a regular flow of professional opportunities which wouldn't have come my way previously and I'm routinely asked for comment on my new niche. I like to think I'm proof of what social media can do for you as a lawyer, so I'll continue to encourage you all to Play the Advantage it has to offer!
The Times Law Top 10 roll of honour comprises:
The article is behind a paywall, so I had to pay a small fee to see my name in lights. Why its time to open a corporate Twitter account celebrates the rise of Twitter amongst the legal profession and The Times has chosen to describe me as "a social media evangelist". This headline characteristic is a reflection of how rapidly the emphasis of this very blog stepped away from a log of legal events affecting my industry to that of a lawyer experimenting with how lawyers can use social media to its best effect. A year ago, very few people had heard of the in-house lawyer at Latitude, but now I receive a regular flow of professional opportunities which wouldn't have come my way previously and I'm routinely asked for comment on my new niche. I like to think I'm proof of what social media can do for you as a lawyer, so I'll continue to encourage you all to Play the Advantage it has to offer!
The Times Law Top 10 roll of honour comprises:
- @Inner_Temple: Provides the latest resolutions plus links to selected legal headlines from across the press
- @Charonqc: The very funny alter ego of Mike Semple Piggot, polymath legal blogger, writer and artist.
- @richardsusskind: Renowned legal IT specialist, academic, writer and Times columnist
- @davidallengreen: Insightful media lawyer, blogger and legal correspondent for theNew Statesman
- @RichardMoorhead: A legal academic and blogger specialising in writing about legal services and access to justice
- @in_house_lawyer: Social media evangelist who also tweets regularly on issues around commercial and digital law
- @copyrightgirl: Often responds directly to inquiries from followers on issues around copyright law and intellectual property
- @legalfutures: Very good on matters of compliance and competence for lawyers
- @LegalBizzle: The irreverent and personal thoughts of a lawyer, although on professional matters
- @TheNakedLawyer: Solicitor-turned marketer often tweeting on how lawyers can get the most out of social media
Well done everyone who features.
Thursday, 6 January 2011
Reflections of a Contracts Lawyer: Part 3
Reflection Number 3: Define your own terms
Image is a snapshot courtesy of Wikipedia.com
Back in the world of a corporate trainee, I sit in the partner's office. Alas, the office is devoid of cacti, and the building has no lake outside of it to speak of, but the odour of OCD does permeate the air. I've produced a mighty fine piece of written advice. The partner has other ideas and sees fit to draw lots of red patterns on it. An hour long lesson in "consistent style" is endured: the basics on use of defined terms are drummed in to me, the benefits of tables and schedules are shared and more peculiar preferences are revealed such as line-up your paperclips symmetrically, and methodology for the production of Bible spine labels....
Later that week, same firm different partner, I produce a mighty fine contract (demonstrating the previous lesson in consistency). The partner has other ideas and sees fit to draw lots of red patterns on it. An hour long lesson in "this way" is endured: put your defined terms in a schedule this way, separate out the term and termination clause this way, do it "this way".....
Out of traineeship, and as a fully-fledged solicitor I'm asked to review a supply contract for a senior associate with a rep for pickiness. This solicitor was not for quitting. Or being picked on. And certainly wasn't enduring any more red patterns or hour long lessons. An all-nighter resulted in a philosophy of a review and a mighty fine resulting letter to client. Picky senior associate looked.....impressed. That day has been recorded in my memory as a VC day (victory in contracts), no contract or piece of written advice has ever flummuxed me since.
But looking back on these lessons: yes, I'm hot at defining terms but the rebel in me never lines up my paperclips symmetrically; my contracts hang together just fine but I never put my (hotly) defined terms in a schedule and my terms and termination clauses can usually be found in the same place; and although my contracts contain a lot of clever quirky drafting, I've never needed to provide, or be provided with such a granular piece of written advice as I did on VC day.
I've developed some deft drafting tricks of my own over the years but I also own the right to "take a view" when what is really needed with a contract is to get the deal done. Yes, I've learned from some great teachers (and I make sure that the lessons I've learned have been passed on to those I've trained too), but my contracts are my style: I live with them, advise on them and chew over them, I need to know them inside out, and I can only do that if they've been created my way.
I've developed some deft drafting tricks of my own over the years but I also own the right to "take a view" when what is really needed with a contract is to get the deal done. Yes, I've learned from some great teachers (and I make sure that the lessons I've learned have been passed on to those I've trained too), but my contracts are my style: I live with them, advise on them and chew over them, I need to know them inside out, and I can only do that if they've been created my way.
You see, contracts aren't just a reflection of the deal which has been struck, they're also a reflection of the lawyer who creates them.
For more of my reflections check out Reflections of a Contracts Lawyer: Part 1 and Reflections of a Contract Lawyer: Part 2.
Wednesday, 5 January 2011
Reflections of a Contracts Lawyer: Part 2
Reflection number 2: Contracts are like the sea, best when they're crystal clear.
Image courtesy of Nevit Dilmen under the terms of theGNU Free Documentation Licence Version 1.2
Fast forward to 2002. Location: an open-plan office of one of the Big 4 tour operators in the UK in the North West. Upon the approach, one stumbles upon a lake filled with Canadian geese, and when entering the magnificance which is the office, one is greeted by statues of Noah and modern artwork.
OK, OK, I'm in the old Co-op building in Rochdale. Noone said being in-house was glam (but the lake bit is true).
However, the tour operator which I worked for clearly did a lot of business abroad where the majority of its suppliers were based. Everyday I would see contracts land upon my desk for review which were governed by the laws of the US, Switzerland, Greece, the Maldives, Jamaica, Cuba, France, the Balearics or India. You get the sunny picture.
But I'm an English law lawyer, and haven't been provided with a budget for a second opinion on these contracts from a lawyer conversant with the laws governing them or the jurisdiction to which we might be summoned in the event of dispute.
Hmmmm....how to save one's backside? My risk-management technique: If you don't know about the law which will govern the dispute, best not let a dispute arise in the first place. The only way to do that with a fair degree of confidence is to make sure that the commercials within the contract are absolutely crystal clear, so that there can be as little opportunity for a dispute as possible.
To be wholly accurate, this risk-management technique should be par for the course for all contract reviews regardless of the governing law, but I always find there's nothing quite like the threat of the jurisdiction of Vietnam to focus the mind on not letting a dispute arise in the first place (although one can be forgiven for being less risk-averse with those threatening jurisdiction in Barbados for example, just my own little rule that one, not right for every one).
I'm not saying anything new when I share the general rule that the process of dicussing expectations at a pedestrian level does in most situations elicit gaps or areas in need of further discussion with the other party. This of course is generally helpful all around and a good thing to do before any contract is signed, as it goes towards the resulting project running much more smoothly and any obstacles seen well in advance.
Of course, the process which you need to go through with your fellow colleagues to achieve crystal clear clarity on their expectations of contract performance can very greatly depending on who you're dealing with - but more on mind-reading another day.
For more reflections, see Reflections of a Contracts Lawyer: Part 1.
Fast forward to 2002. Location: an open-plan office of one of the Big 4 tour operators in the UK in the North West. Upon the approach, one stumbles upon a lake filled with Canadian geese, and when entering the magnificance which is the office, one is greeted by statues of Noah and modern artwork.
OK, OK, I'm in the old Co-op building in Rochdale. Noone said being in-house was glam (but the lake bit is true).
However, the tour operator which I worked for clearly did a lot of business abroad where the majority of its suppliers were based. Everyday I would see contracts land upon my desk for review which were governed by the laws of the US, Switzerland, Greece, the Maldives, Jamaica, Cuba, France, the Balearics or India. You get the sunny picture.
But I'm an English law lawyer, and haven't been provided with a budget for a second opinion on these contracts from a lawyer conversant with the laws governing them or the jurisdiction to which we might be summoned in the event of dispute.
Hmmmm....how to save one's backside? My risk-management technique: If you don't know about the law which will govern the dispute, best not let a dispute arise in the first place. The only way to do that with a fair degree of confidence is to make sure that the commercials within the contract are absolutely crystal clear, so that there can be as little opportunity for a dispute as possible.
To be wholly accurate, this risk-management technique should be par for the course for all contract reviews regardless of the governing law, but I always find there's nothing quite like the threat of the jurisdiction of Vietnam to focus the mind on not letting a dispute arise in the first place (although one can be forgiven for being less risk-averse with those threatening jurisdiction in Barbados for example, just my own little rule that one, not right for every one).
I'm not saying anything new when I share the general rule that the process of dicussing expectations at a pedestrian level does in most situations elicit gaps or areas in need of further discussion with the other party. This of course is generally helpful all around and a good thing to do before any contract is signed, as it goes towards the resulting project running much more smoothly and any obstacles seen well in advance.
Of course, the process which you need to go through with your fellow colleagues to achieve crystal clear clarity on their expectations of contract performance can very greatly depending on who you're dealing with - but more on mind-reading another day.
For more reflections, see Reflections of a Contracts Lawyer: Part 1.
Tuesday, 4 January 2011
Reflections of a Contracts Lawyer: Part 1
My number one rule is when it comes to dealing with contracts is that they must reflect the deal which has been agreed. Pretty simple really, but its a guiding principle which has seen me well over the years of drafting and reviewing, what must now be well over a thousand, contracts.
To start the year, I present to you a mini-series of blog posts of my reflections on being a contracts lawyer.
Reflection Number 1. They're not as prickly as they look
The year: 1996. Location: a cacti-filled office in an electronic and manufacturing engineering establishment in Leicester.
A colleague hands an intrepid trainee her first contract for review. For the avoidance of doubt, and in case he's reading, said colleague is not her boss of the time, nor the owner of the cacti office for that matter.
Said colleague is a non-lawyer lawyer. A non-lawyer lawyer is not to be confused with a wannabe lawyer.
A non-lawyer lawyer is an individual who has no legal training but is involved in legal activities usually because their original function in the company somehow creates an opportunity for said non-lawyer to get familiar with some legal concepts and become relatively proficient in them. Thus they are accepted into the lawyering fraternity as they talk our language. Non-lawyer lawyers often have, but are not limited to having, insurance, contract manager, or accounting style backgrounds.
A wannabe lawyer however usually has some tenuous connection with the law, for example a friend of a friend of theirs studied law at university, they walk past a law firm on their way to work, they're in the process of selling their house and therefore dealing with a solicitor presently. Nothing wrong with all of that of course, except when that link is regarded as a legal qualification. Similar to the same legal qualification which took 3 years of University study, a further year LPC, a couple of additional years of traineeship. Oh yes, and all the PQE too. For the avoidance of doubt, that link is not a legal qualification. I digress. Much, much more on wannabe lawyers another day.
But for now said non-lawyer lawyer colleague, provides said trainee with a set of MF1 Rev. x standard terms and conditions with the cryptic message, "see what ya' make of them then". I'm sure there was a haughty laugh afterwards, but I could be embellishing for the sake of a dramatic post.
Anyway, MF1. Lets just say that its not so much a contract but a way of life, nay, a philosophy within the engineering world.
It really was a novel of a contract. As I sat in my B&B that evening (I recall it has western-style saloon doors to the en suite, but did a mean scrambled eggs for breakfast), tears actually rolled down my face as I pondered the document which lay before me. None of it made any sense whatsoever. And looking back, no wonder. A contract document on its own, without a scenario to which it must be applied, without a deal which it must reflect, and regardless of the complexity of the drafting it contains, does indeed make no sense. I was right.
After a tortuous weekend of tearing out my hair at this anonymous document (which I felt I had to have a view on as I'd just come out of law school and it was "expected"), my boss (the owner of the cacti, not the one who gave me MF1) kindly introduced me to the company's "Standard Responses to Standard MF1 Contracts".
Epiphany.
No matter how prickly their first impressions, there's rarely anything in a contract which someone hasn't come up against before and a suitable response is always waiting in the wings.
To start the year, I present to you a mini-series of blog posts of my reflections on being a contracts lawyer.
Reflection Number 1. They're not as prickly as they look
The year: 1996. Location: a cacti-filled office in an electronic and manufacturing engineering establishment in Leicester.
A colleague hands an intrepid trainee her first contract for review. For the avoidance of doubt, and in case he's reading, said colleague is not her boss of the time, nor the owner of the cacti office for that matter.
Said colleague is a non-lawyer lawyer. A non-lawyer lawyer is not to be confused with a wannabe lawyer.
A non-lawyer lawyer is an individual who has no legal training but is involved in legal activities usually because their original function in the company somehow creates an opportunity for said non-lawyer to get familiar with some legal concepts and become relatively proficient in them. Thus they are accepted into the lawyering fraternity as they talk our language. Non-lawyer lawyers often have, but are not limited to having, insurance, contract manager, or accounting style backgrounds.
A wannabe lawyer however usually has some tenuous connection with the law, for example a friend of a friend of theirs studied law at university, they walk past a law firm on their way to work, they're in the process of selling their house and therefore dealing with a solicitor presently. Nothing wrong with all of that of course, except when that link is regarded as a legal qualification. Similar to the same legal qualification which took 3 years of University study, a further year LPC, a couple of additional years of traineeship. Oh yes, and all the PQE too. For the avoidance of doubt, that link is not a legal qualification. I digress. Much, much more on wannabe lawyers another day.
But for now said non-lawyer lawyer colleague, provides said trainee with a set of MF1 Rev. x standard terms and conditions with the cryptic message, "see what ya' make of them then". I'm sure there was a haughty laugh afterwards, but I could be embellishing for the sake of a dramatic post.
Anyway, MF1. Lets just say that its not so much a contract but a way of life, nay, a philosophy within the engineering world.
It really was a novel of a contract. As I sat in my B&B that evening (I recall it has western-style saloon doors to the en suite, but did a mean scrambled eggs for breakfast), tears actually rolled down my face as I pondered the document which lay before me. None of it made any sense whatsoever. And looking back, no wonder. A contract document on its own, without a scenario to which it must be applied, without a deal which it must reflect, and regardless of the complexity of the drafting it contains, does indeed make no sense. I was right.
After a tortuous weekend of tearing out my hair at this anonymous document (which I felt I had to have a view on as I'd just come out of law school and it was "expected"), my boss (the owner of the cacti, not the one who gave me MF1) kindly introduced me to the company's "Standard Responses to Standard MF1 Contracts".
Epiphany.
No matter how prickly their first impressions, there's rarely anything in a contract which someone hasn't come up against before and a suitable response is always waiting in the wings.
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