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Santa Skills

12/19/2015

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As we approach another Christmas I was thinking about the skills that each of us really and truly brings to our job.

Santa Claus or Father Christmas or Saint Nicholas has a remarkable skill - the ability to deliver presents to every child in the world in one night.

However for us more mundane mortals in our professional life what is it that we are paid for, why do people use us, what is it that we can provide that is not available on the ubiquitous Internet in a few clicks?

I have been involved in the completion of two transactions simultaneously over the last few weeks and have been trying to distill where I have added most value. It is not in producing a first draft of the contract - actually that is relatively easy using model forms and precedents. It is also not in organising or managing the deal or the documents. My commercial and project and bid management colleagues can do all of that. Nor is it always in unique legal knowledge though of course that helps.

No what it really is I think on reflection my true skill set as a transaction lawyer is recognising a problem, articulating it so everybody on both sides agrees and then coming up with a solution and creative drafting that solves the issue.

This is where my skills set really resides. Many of the other things I do can perhaps be delegated and will eventually be performed by a computer or an avatar. But I do, like Santa, have a unique skill set as do we all if we can only work it out and identify it.

My parting thought before Christmas is that as the way we carry out our roles as professionals evolves through the advent of irresistible and exponential technology change, it is more and more critical to recognise and build on our true core skills, whatever they may be.

I wish all of those who have been kind enough to read these weekly thoughts a very merry Christmas where I hope our skill sets will be more about being with our family, eating and drinking and celebrating this festival time.

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The War Room

12/12/2015

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Any complex transaction has many component parts and a number of different contributors to each action. One of the inherent dangers that can challenge the successful development and negotiation of an IT contract is a lack of cohesion and integration amongst the different team members.

​The can mean that say the legal and financial or technical advisers can be on different pages or spreadsheets or diagrams and sometimes it seems even different planets.

One reason for this can be a lack of co-ordination amongst the members of the team who often have other competing work and different priorities and may well be in different locations.

A simple and effective way to avoid this is to create a "war room" which is dedicated to the contract team that they can use as a base for the development of the contract and management of the deal. This can be equipped with flip charts, projectors, whiteboards etc. and will be a permanent base for the duration of the transaction.

This enables documents to be drafted with contributions from different disciplines and any difficult issues to be brainstormed. It also has the incidental benefit of bringing a disparate group together as a coordinated whole and creating a real team spirit.

It worked for Churchill with the War Rooms in London in the 1940's and it still works in Twenty First Century outsourcing contract negotiations.

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Projector Power

12/5/2015

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One of the most effective and powerful but often underused techniques in the negotiation of complex contracts is the use of the humble projector.

There are  some really convenient portable projectors on the market nowadays, but any that will link to a laptop will do.

At a negotiation meeting the contract being discussed is projected onto a wall (or screen if there is one) where all can see it. One side can then lead the participants through the latest draft agreeing points and drafting changes as the meeting progresses. Any amendments done on the spot are transparent and seen and agreed by all involved. There is no hiding place and seemingly intractable issues can be resolved. This also often reveals misunderstandings that were never apparent but were blocking progress.

I know some lawyers who are reluctant to work like this because, I think, it means being put on the spot and not able to properly consider any drafting changes. But where you are dealing with a difficult discussion, particularly if one party is reluctant to agree any changes, capturing the wording as you go is really effective.

Yes it does test drafting skills but a good lawyer should be able to draft as they go as it were. Having obtained agreement to the changes made in the meeting a revised draft can always be circulated for further review.

This simple real time approach also works remotely by utilising instant messaging like Skype where every participant can see the document on their own screen.

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