Contracts, In-House Counsel, Practice Pointers

Moonlighting: Feeling the Kumbaya (Part II)

In Feeling the Kumbaya (Part I), we looked at how different the perspectives of business clients and in-house lawyers can be. Below are a few techniques that have helped me and my clients to feel the Kumbaya for each other (or at least have helped them to not think I’m only a total loser who has nothing better to do than change all of the commas in a list after a colon to semicolons).

Prioritize. I used to suspect that there was something about going in-house that made perfectly good law firm attorneys develop permanent amnesia when it came to good drafting. It was the strangest thing. Even my husband, a supposedly respectable corporate law firm attorney, after going in-house, suddenly started to let minor errors appear in his emails. My judgment of him was quick and deliberate. He would sometimes mistakenly use “there” instead of “their,” for God’s sakes! What lawyer does that?

But I learned that judgy, perfectionist lawyers don’t instantly dumb-nify upon stepping into their new company’s elevators. What does happen is that they learn to prioritize differently. Many in-house lawyers continue to pore over contracts (since minor wording changes can always have a major legal impact). But we’re constantly learning to prioritize and reprioritize, and to consider which portions of a contract are the most significant, from both legal and business viewpoints. Provisions that aren’t flawlessly drafted may be good enough for us to let go of, even if they make our inner Type A lawyer child weep.

For example, have thirty other lawyers picked over each word of the contract already, including five sets of outside counsel? Then just maybe you’re okay with doing just a quick perusal! Is the company planning to spend $150 for a wastebasket? It depends on the situation, but that’s possibly a contract you can de-prioritize! (Wait, is that even a contract, or is it just an invoice? A better use of your time may be to figure out why the heck the company is spending so much on a ludicrously expensive wastebasket, and whether this kind of practice will have any relation to the amount of bonus money you’ll get for this year.)

Communicate. Prioritization takes time, effort, and experience to do well. Good communication, on the other hand, is generally not as difficult. You just do it and keep doing a lot of it. They say that it’s almost impossible to over-communicate. With business clients, instead of sending a quick email that succinctly states, “Attached are my comments. Please let me know if you have any questions,” you can further explain, “You’ll see I’ve made a lot of comments. Most of them are minor, technical comments just to clean up the document a bit and to help make it clearer. The important ones are in Sections….” That kind of explanation tells the business client, “I know you think I’m crazy for counting the spaces after a period, but please, let’s all just get along.”

And of course, communicating some of these issues by phone can be much more effective than communicating them via email, especially if you and a particular client aren’t very familiar with each other yet. It’s typically easier to establish a basic level of trust over a few initial, casual phone conversations (or, you die-hard emailers may need to sit down for this one: an actual, in-person meeting), than over a few initial, professional-sounding emails.

Understand. Just because it’s a legal document doesn’t mean it only has legal significance. One thing that sometimes drives in-house lawyers crazy is when clients want to include language in contracts that have no legal significance. For example, they may want to end a letter agreement with something like, “We are pleased to have the opportunity to enter into this arrangement.” How does one tell a business client that contracts are not appropriate places to express one’s feelings for the other side?

Or, they may want to include a sentence in a particular section stating, “The parties may mutually agree to….” This kind of provision makes absolutely no legal sense in a contract — the parties can always mutually agree to anything they want to in the future. There’s no need to have that in writing. And then, there are business clients’ requests to have “the parties agree that” sprinkled throughout the document — also unnecessary because the entire contract is what the parties are already agreeing to. It’s just redundant. Even in law school, if we included irrelevant arguments or language in our papers, exams, and moot court briefs, we incurred the wrath of our professors and judgment of fellow (obviously more-enlightened) law students.

But in trying to understand the business client, we can see how contracts can sound cold and indifferent to the non-legal eye. The business client may have participated in a gazillion meetings and conversations to get the other side to a place where they’re ready to put the deal in writing. So phrases like “the other party’s obligations” and “the other party shall not” can sound unfriendly and demanding, whereas phrases like “the parties agree that” just sound so… agreeable.

So, it begs the question (or for you passive tense-lovers: the question is begged): in this alternate reality called In-house-counsel-dom, is it simply more efficient and trust-engendering to let the clients “win” one here and there and include such legally meaningless — yet warm and fuzzy — prose intended to get everyone singing Kumbaya? Or could the irrelevancies suddenly become relevant and possibly change the construction of the contract in a future lawsuit?

A caveat: different business people have varying levels of sophistication (i.e., some read the drafts, and some don’t) and familiarity with legal documents and legal issues. Some rarely deal with these and require much more guidance and explanation (“no, no… not that kind of party”). Others review legal documents regularly and are adept at raising specific concerns and checking whether the contracts cover those concerns. And of course, the more important the deal, the closer everyone pays attention. Or so the theory goes.

Also, I’ve found that some people, for example, in the finance field, can also be very picky writers, and will debate drafting points with the best of them. They can judge you just as well as any law firm partner or in-house attorney, but it’s even worse, since to them, you’re just… a lawyer.

What are ways you’ve found it useful to get you and your business client feeling the Kumbaya? Email me and let me know what’s worked for you.

Susan Moon is an in-house attorney at a travel and hospitality company. Her opinions are her own and not those of her company. Also, the experiences Susan shares may include others’ experiences (many in-house friends insist on offering ideas for the blog). You can reach her at and follow her on Twitter at @SusanMoon.

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