As we change the way legal and contracting are delivered, we need to think of the talent mix.
Golf is a funny sport. The concept is very strange if you write it out. Let’s use crooked sticks to hit a tiny ball into a hole hundreds of yards away from here and count our strokes. You can almost see the bored Scottish shepherds thinking of this as they wander the highlands with a lot of time on their hands. From humble beginnings the sport now has a variety of crooked sticks to choose from, built from a myriad of materials and perhaps the most unnatural versions of grass anyone can imagine (the lack of sheep is a great loss). My father taught me how to play golf on perhaps the most “public” courses you could get on the Jersey shore. Carry your own bag, no fighting on the course (a real sign where I grew up), play “ready golf” which is a nice way of saying, don’t take too long, and a free slice of pizza if you bought 18 holes. Good times. The first club my Dad taught me on was the 7-iron. Without getting wonky, there are “woods” and “irons” in golf. Woods generally hit further than irons and the lower the number of the club, the further it will go and the higher the number, the shorter it will go, but higher in the air. Again, golf - odd sport. But the point of this is that I got really good with a 7-iron. I could bump and run, go for distance and even have a feel for how to cut it short. And more importantly I could always hit it straight. For those privileged enough to have played with me you may have seen my slight slice. And I say slight slice, in the same way that superhero movies have a slight pattern of using CGI (computer generated imagery).
Anyway, what does my formative and combative years of playing golf on the Jersey short have to do with contracts or contract management? So, as stated I was really good with a 7-iron. But when I started to play “better” courses my game wasn’t suited. Remember – I was a law firm lawyer in the 1990s and 2000s so had the awkward privilege of getting to visit the Partner golf clubs every so often and do the absolutely non-political dance of trying to fit in. Anyway, focusing on just one club got me so far, but not fully there. And that translates to legal services too. I love technology. I love delivery centre approaches to the contract lifecycle. But – we need in country lawyers too if we are being honest. Now, lawyers get a tough rap sometimes in these blogs and others. But I think it’s because people still think that a traditional lawyer is the proverbial 7-iron. Though, guess what… centres and tech are no different. A mixed delivery or to hammer the analogy, a mixed set of clubs allows a company to attack any problem. Too often we get into the zeitgeist of this will replace that or we only need that and not this. But really – when you think about it – is that ever true? Now yes, I could devastate Bel-Air Country Club in Wall Township with a 7-iron, but there are more complicated courses out there (no offense). And being able to use all your clubs, makes you a better player and your organisation better prepared.
I will zag now and talk about lawyers and why they are necessary and dare I say, a good thing in a contracting ecosystem. Here are some examples:
Subject matter experts
I often talk about how silly it is to use a 20-year lawyer to review NDA or even low risk, common BAU contracts. But you know what – there are a lot of contracts with complicated regulatory, privacy, IP or other clauses and implications where having an expert is a wise idea. Now yes, some things around those topics can be playbooked or standardised. But the world is not getting less complicated or less regulated. And having people who have done this before, seen the patterns, understand the interpretations, risks and options is a really good idea. Also, not a bad idea to have someone read the output of the latest AI trend to vet if the references are real, true or sound – especially when making a meaningful business decision on that. Confidence is a great, until its not. But that’s a different blog. The point here, it that yes, many if not most of contracting issues are common, repeatable and standard. But not all are, so expertise is valuable when deployed correctly.
Now we have a way of creating contractual standards based upon empirical commercial data. But related to the above, there is an additional step in terms of translating that into legal language and giving a sense check on the language from a risk and compliance perspective. And this element requires a legal mind and expertise. This is not drafting for drafting’s sake, but more about taking the commercial needs, practicalities of the business, risk tolerance and legal requirements together. And to make this “soup” of different needs you need to add that dash or more of real legal knowledge.
Commercial lawyers have spent a lot of time negotiating deals. One might say that that is core ability. Having that experience of closing tons of deals, knowing the gives and takes, the rhythm of a complicated deal is really something that no playbook can copy. Again – many deals are purely transactional and don’t require that expertise, but there are risky deals, workouts, post-award discussions where experience matters. In some companies there is a robust contract or commercial management function, but in most, this falls to legal. That experience is not fungible and is something that a proper contract management solution really needs in some form. Process and tech – gasp – only get you so far.
Now if we are going to play a par 3 tournament, I know what my main club will be. But the world of contracting is not just one hole or one design. If we are going to earn that Jersey shore slice at the end, we need a proper bag of clubs and lawyers are a part of that.
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