In-House Counsel, Practice Pointers

House Rules: Be Prepared

Here's why David Mowry thinks it's important that in-house counsel be involved in a difficult deal as close to its inception as possible...

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I have borrowed the Boy Scout motto because I am involved in a complex cross-border transaction. Yeah, I am not kidding. I am using today’s column to point up the importance of in-house counsel being involved in a difficult deal as close to inception as possible.

Usually, the field calls when there is an approval needed for some non-standard language, or a review of a legal concept is required. At this stage in a deal, the parties are well on their way to completion, and some legal issue has arisen. But, in a complex global agreement, there are numerous variables that one must remain on top of from the start. Foremost is an understanding of the deal itself. A very close second is an understanding of what exactly the Customer is expecting, having awarded an RFP to your company.

RFPs are quirky animals, rife with opportunity for miscommunication or differing interpretations of answers. The field has prepared its response in reaction to the knowledge that several competitors are bidding on the same deal. And we all know that field ops are known for their lack of puffery and straight arrow responses to questions like, “Can you deliver X in Dubai on a single day’s notice?” Not to denigrate field ops, but the answers are always, “Yes, yes, a thousand times yes,” setting the Customer’s expectation at such a high level, that when it comes time to actually negotiate Ts and Cs, you, in-house lawyer-person, are going out to some very hungry wolves….

It is for this reason that I recommend as a best practice, reviewing thoroughly any and all RFPs, to not only ensure that answers are given with less puffery and more facts, but so you might have a head start on the deal if awarded. Then, instead of leaving yourself in a defensive position to clean up any possible messes regarding miscommunication, you begin the process with a clear understanding of not only what you’re promising to do, but also what the Customer expects of you.

More than once have I found myself in the position of devil’s advocate when negotiating live. That is due to the fact that the Customer’s counsel has a linear picture of what they’ve signed on for, and your field has left you to “make it so.” And sometimes, surprise surprise, making it so is a hell of a lot more difficult than simply drafting a clause that satisfies the Customer. Esoteric items such as tax implications, currency conversion, even the ability to lawfully conduct business in a particular country, may pose problems for your performance. And you are left to sort it out.

I alluded to playing devil’s advocate, but a more artful statement might be putting oneself in the Customer’s shoes. A loose analogy might be ordering and purchasing an automobile from overseas. The salesperson has agreed to deliver you the automobile on a specific date, and the car is to have the specifications that you desire. As the Customer, you do not care what hoops the salesperson has to go through to obtain the specified automobile for delivery on a particular date. You just want to show up at the dealership on the day in question, sign some paperwork, and drive off in your new car. You do not care about the export/import implications regarding the country of origin and the delivery site. You don’t care about the fact that the dealer is forced to work through a third-party “agent” in the originating country. And you absolutely don’t want to be bothered by such details. You are the Customer. You pay the money, you drive the car.

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If the dealer’s in-house attorney has made himself aware of the ramifications of what is required to transpire by delivery date, all will be copacetic, and a happy Customer will leave the business with some well-earned revenue. But, if the salesperson waits until a week prior to delivery and has a “come to Jesus” moment about what has yet to be completed for the transaction, the lawyer will receive a panicked email or phone call — and be left to attempt to sort out the pieces of a difficult puzzle in record time. If the lawyer can pull it off, they will be a rock star for a moment, and if they fail, then, well, they fail.

It is imperative that you, at least, stay abreast of percolating deals that will potentially require much more than an opinion of risk/reward. Even better is if you can place yourself at the table while a deal is being worked out among your internal team. This is not always practical, or even possible given workloads of most in-house counsel, especially those from small shops, but the attempt ought to be made. Successfully placing yourself at the inception of a complicated deal will ultimately result in an easier negotiation and execution.

Side note: 30,000 emails? Really? I knew guys in high school who were in charge of an entire theater of war who wrote 30,00 emails to “social liaisons” all the time; no big deal.

After two federal clerkships and several years as a litigator in law firms, David Mowry is happily ensconced as an in-house lawyer at a major technology company. He specializes in commercial leasing transactions, only sometimes misses litigation, and never regrets leaving firm life. You can reach him by email at dmowry00@gmail.com.

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