The first two articles of this series established discerning differences between a business friendly and business unfriendly in-house lawyer. While the lawyers are inherently business unfriendly, but working consciously and diligently, they can transform and adapt to carry a business oriented outlook, without compromising on the legal areas which require mitigation. It’s a tedious and tortuous journey, one that lays bare an inexplicable conflict a lawyer discovers against his programmed and deeply embedded instinct of scepticism and risk aversion.
Beginning with this part 3 and onwards, I will talk about the qualities and attributes of an in-house lawyer that make him stand out from the rest. This part focuses on ‘communication’.
Effective communication defines a corporate lawyer
Oftentimes we hear that lawyers are adept at spinning a web of words to frame arguments and win cases. That’s the general belief about lawyers and I too indeed believe that such a quality is the fabric of a lawyer’s personality and disposition. In the corporate sense, this attribute is not limited to just arguments but it transcends to all aspects of an in-house lawyer’s job. The term ‘communication’ is often misunderstood to be limited to verbal communication. However, in the context of a corporate lawyer, communication skill assumes many facets which can be broadly classified under the following heads: (a) internal communication; (ii) external communication; (iii) negotiations; and (iv) internal trainings.
Effective communication under all the above heads brings gravitas to the role of a corporate lawyer, accentuates his assigned role, gets the things done faster and establishes his credentials. In conglomerates and big corporate companies, legal touches upon all functions and departments. A lawyer communicates with all commercial people without actually meeting them many times. Similarly, in many transactions, especially cross border transactions, faces are rarely put to names but transactions worth billions of dollars get consummated via emails and telephonic negotiations. How a lawyer writes emails and handles conference calls during negotiations with counter parties, how he sensitises himself with the expectations of the commercial people, how he, in turn, sensitises the commercial people with the transactional and legal issues, how he builds rapport with other party’s lawyers (and perhaps even commercial people) are all an integral part of an overall effective communication. A lawyer, just like commercial people, is a medium through which a company gets the transaction done. How that transaction is concluded is more often than not under the control of a lawyer. Having closely observed over the years (to a point that I firmly believe now!) that where a lawyer is not good at an overall communication, the transaction suffers in varied degrees – delays, losing value adds in the transaction, friction (both internally and with the counter party) which creates complications when one is dealing with same people in future and parties walking out of the transaction in extreme cases. Of course in certain cases such outcomes can be attributed to commercial teams but usually not where a lawyer is leading the transaction after the commercials are closed. A lawyer who gives favourable outcomes in transactions using good overall communication is what I call a business friendly lawyer.
In my view, the quality of lawyers passing out of majority of law schools in India is, unfortunately, not up to the mark when tested on wider communication scale. Young lawyers who want to be in a corporate role are usually found to hold a false notion that good verbal communication is paramount and use it as their ‘selling point’ but are usually seen to struggle under the heads mentioned above. Speaking effectively comes naturally to many but that is not enough for a successful role of a corporate lawyer. In-house counsels, especially who join legal departments straight from law schools or after working first in law firms and/or courts, require to put in generous and conscious effort to master effective communication. This requires discipline and the discipline must inculcate a habit. The process of habit formation should ideally start in law schools which should introduce effective communication as a compulsory module in the curriculum. Moot courts in the curriculum are helpful in legal practice but I don’t particularly see anything in the curriculum of law schools which can help the law students to learn effective communication in corporate parlance.
Emails are a common medium of communication in an organization. For corporate lawyers, emails are critical and those who do not use emails for effective communication are considered beyond the pale. All necessary clarifications are taken on emails, dos and don’ts of executed transactions are disseminated via emails, opinions and advisory happen on emails and instructions are issued on emails. So, emails are quintessential to the role of a corporate lawyer. In my personal experience, I have taken a shine to many who communicate effectively via emails.
I will not get into the rules of writing emails but will emphasise on a few things when communicating with other departments, especially with commercial teams. The choice of words of a corporate lawyer must bring clarity to the message succinctly. The words, so chosen, must define tone and tenor of the email unambiguously to the extent possible. Avoid complicated words which are not likely to be understood by commercial people. Emails may not be the right medium to prove your prowess on vocabulary, when communicating internally, especially with the commercial people. Keep the emails short to a great extent. If a long email needs to be sent, understandably at times, follow up with a call to the concerned commercial person and a give a walk through. People hate reading long emails since they get hundreds of these daily. I often find that the action points in long emails tend to get lost. Advisory and opinions, which need to be consumed by commercial teams, need to be “written” in plain, simple language and not “drafted” like contract clauses. Do not forward or CCP (cut copy paste) the external advisory and opinions as is, but change these to simple language before sending internally. Lastly, what I consider the most important ones:
- Opinions and advisory must be solution orientated. Avoid saying no to commercial people and where one has to, one should propose alternatives which will require business knowledge (this aspect will be covered in my follow up articles); and
- Define a TAT (Turn Around Time) for responding to emails. Delays in responding to emails can undermine all the good work of a corporate lawyer. Nobody will write to a lawyer unless there is a need. In most of the cases, a business decision is hinging upon legal team’s revert and in other cases it may involve a business complication. Ideally clean up your inbox by responding to all emails and where one needs more time, send a holding response.
Outside emails, it is important to establish a rapport with commercial teams. A regular interaction with them about the forthcoming deals is always helpful. While drafting a contract, it is important to know commercial team’s perspective while chiselling the legal clauses. It will reduce the back and forth if the contract under negotiation accurately represents the commercial intent. Do not negotiate the contract in isolation and keep the commercial team in confidence (including the legal clauses in important contracts even though these are legal calls). An urgent request from commercial team needs to be accorded urgency. Always keep the commercial team informed about the pitfalls before they concede on any commercial point which you believe can have an adverse impact on structuring of the transaction or contract. Lawyers, while structuring the transaction or preparing the first draft, often require certain clarifications from the commercial team. The need for clarifications may either emanate from the commercials concluded by the commercial team or from the clauses that are required to be included in the agreement to support these commercials. I have observed lawyers sending the draft agreements to the commercial teams, asking them to go through the highlighted clauses drafted in legalese and confirm their understanding. This is the worst way of communicating with commercial teams and I have seen even senior lawyers committing this mistake. The ideal way is to raise your query in your cover email in a terse manner – cite the relevant agreed commercial point, explain your concern/raise your query for a clarification. These kinds of emails need to be meticulously written, especially when your commercial team is not in the same time zone, to avoid delays. There is a flip side to this, unfortunately. I have witnessed lawyers exploiting this process of “seeking clarification on commercials” to buy time to prepare the draft agreement or to revert on an iteration which cause inexcusable and unnecessary delays in concluding the transactions. This is a blunder which the corporate lawyers make. It is easy for a seasoned lawyer to easily decipher, looking at the nature of queries raised, whether the lawyer handling the transaction indeed required such clarifications.
Commercial people typically thrash out a deal on broad commercials of a transaction. It is upon the lawyers to dwell into and identify the nuances of commercials to draft and negotiate a robust agreement. These nuances do not typically form part of commercial negotiations. Therefore, it is critical that commercial and legal teams work in tandem. In this regard, a corporate lawyer’s role is to influence the negotiated commercials, (but not with an intent to alter them though that may be warranted in certain exceptional cases), which requires him to first take the commercial team in confidence. Before entering into negotiations, the lawyer must bring the commercial team on the same page as far as the nuances of negotiated commercials are concerned. This will require a pre-negotiation discussion with commercial team to make them appreciate these nuances and procure their buy-in. Absence of commercial team’s support will lead to friction which can have negative impact not only on that transaction but on the working relationship between the concerned commercial person and lawyer. How a lawyer communicates and obtains commercial team’s buy-in, negotiates the nuances of concluded commercials is the cornerstone of internal communication relating to transactional work. And when a lawyer is able to successfully do that he is able to, what I call, make tangible value additions in the transaction.
Internal communication establishes the credentials of a corporate lawyer in many ways. A business friendly lawyer gets identified partly through internal communication and is given this title unofficially. Given a choice, commercial people will approach a business friendly lawyer for handling the documentations and legal negotiations of their transactions. Where this choice is not available, the business influences the decisions of the General Counsel to get one for them. Commercial team should not see a corporate lawyer an obstacle but a facilitator. The day a corporate lawyer is seen in that light he has mastered the internal communication.
In my next article, I shall talk about the remaining three heads of effective communication.