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
Showing posts with label reflections. Show all posts
Showing posts with label reflections. Show all posts
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!
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
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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