Recently, our legal department put out a “Tell Us How We’re Doing” survey to our business partners to learn what they really thought of us. The results will not shock you. In addition to being unconscionable spelling and grammar butchers, business partners want faster response times, forms, and training opportunities.
Regarding faster response times, I can’t speak for my department, but out of a keen sense of self-preservation and an aversion to whining, I am a lightning fast responder. As for forms, someday I will dedicate an entire column to their proper usage, but for now let me just say, I would rather lick a donut that fell frosting side down on the subway.
So that leaves training. There are two kinds, really. There’s the showy, formal ones you do to get your boss off your back because he read the results of a survey that says business partners want more training (trust me, they don’t). I’m not going to waste any more space on that other than to say, if you want to haze the new attorney, ask her to put together an introductory contracts course for the business, publicize it on various forums, and then sit back and smirk as 50 people sign up and four attend. The indignant expression on her face will be priceless. I don’t personally get my jollies that way, but I’m 100 percent sure my boss does.
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The other kind of training is the informal kind that pays dividends if you have the right business partner. You just have to know how to find that special unicorn.
I grew up in an era where nothing was taboo in kids’ movies. Torture on the rack? Thanks, Princess Bride. Horse-devouring mud? Not cool, Never-Ending Story. David Bowie in too tight spandex? Burned into my retinas, Labyrinth. And then there was Legend, a low-rent fantasy starring Tom Cruise in an unfortunate Peter Pan leotard and medieval Uggs who must rescue a unicorn from the Lord of Darkness (a super emo Tim Curry with ridiculously phallic horns). If you haven’t seen it, stop reading and watch the trailer. It’s worth it for the voice over alone, but make sure you get a glimpse of the magnificent, dayglow unicorn. That’s the business partner you seek.
Okay, your business partner won’t be so obvious. But only because it’s not the ‘80s anymore. Your unicorn will be a much more subtle creature, so you’ll need to read the signs. One day, your unicorn may find you with questions about the contract. This signals three things. First, your business person can read. Second, your business person bothered to read the contract. Third, your business person actually cares about what’s in the contract.
I’m not talking about skimming the recitals or the question that results in you “summarizing” 30 pages of commercial obligations. I’m talking about the guy who asks why the governing law is Delaware when your company isn’t located there. And upon telling him the answer, he commits it to memory and never asks about it again.
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My first unicorn was a biz dev guy named Ethan who sought me out when a vendor added an MFN and a ROFR to a mark-up. Ethan knew MFNs were commercial pit stains, but he didn’t know what a right of first refusal was or why it had such a stupid acronym. When I explained it to him, he responded that that was the most asinine thing he’d ever heard and why would we ever agree to that? A business person that asks thoughtful questions and understands the futility of ROFRs? Definitely a unicorn.
Over the next few deals, Ethan peppered me with questions that required me to consult treatises (“because I said so” or “trust me, I’m a lawyer” does not work with unicorns) and prove to him that there was, in fact, a demonstrable difference between a commercially reasonable efforts and a best efforts standard. Ethan demanded real-life examples where a gross negligence standard would actually apply. And as you can imagine, Ethan’s contracts took freaking forever. And of course, his questions always came when I was too slammed to breathe never mind explain the concept of special damages, but I made time for Ethan. If for nothing else than I wanted to know what he was up to.
Then one day, Ethan rolled in with language he’d drafted himself. It was dreadful. Ethan had gotten the commercial concept fine, but had botched the legal language and pulled an Icarus when he’d tried to make his own defined terms which didn’t have any accompanying definitions, he’d just capitalized words he thought were important. I spent a considerable amount of time reworking that language with him. These first forays into drafting meant Ethan’s contracts took even longer. But I stuck it out. If for nothing else than to read his crap drafts and lord it over him.
Eventually, Ethan got his drafting to a place where I’d make edits and send him a redline. And soon those redlines became sad starving things because Ethan had learned to draft his own documents to the point where he knew to check section references and make sure all the definitions and defined terms were in there. I know lawyers that don’t do this and just sort of hope for the best.
But Ethan didn’t stop there. When we sat down to negotiate deals, Ethan ferociously guarded the reps and warranties like a Brooks Brother-wearing honey badger because he had a distinct advantage over other business people: he knew what the hell those things meant and why they mattered. I even remember sitting in smug silence as Ethan owned an attorney who tried to tell him he didn’t need an IP infringement rep if he was getting it in the indemnity. It was a thing of terrible beauty.
Yes, Ethan was a unicorn, brilliant and special to grace us mere mortals with his presence. But like Tom Cruise in his tragic fig leaf tights figured out, it wasn’t enough to just find and nurture the unicorn, you have to protect the unicorn at all costs. Because even unicorns need help.
Ethan often has to partner with certain marketing VPs that are not unicorns (they’re trolls, freaking mouth-breathing trolls) who don’t like him. But, since I’ve built up enough cred with said mouth-breathers, I’m happy to spend that social capital to staunchly back Ethan whenever the situation requires it and damn the consequences. Why? Because you want to keep your unicorn around and happy.
Business unicorns are rare things, but well worth the investment in time and training to develop them. I’ll admit, at times I wondered if I was expending time on something that would come back to bite me. Maybe Ethan’s master plan was to learn enough to be dangerous and cut Legal out of the process to tragic ends? But no, he never attempted to circumvent us and when I asked him about it, he told me it didn’t feel right to expect Legal to do his job for him.
Like I said, a freaking unicorn.
Find the unicorn. Nurture the unicorn. Protect the unicorn. Skip the fig leaf leotard.
Kay Thrace (not her real name) is a harried in-house counsel at a well-known company that everyone loves to hate. When not scuffing dirt on the sacrosanct line between business and the law, Kay enjoys pub trivia domination and eradicating incorrect usage of the Oxford comma. You can contact her by email at [email protected] or follow her on Twitter @KayThrace.