In any outsourcing or other large contracting arrangements, one of the principal challenges is developing good lines of communication with the client. Whether one is acting as corporate counsel, or outside counsel, it can be a challenge sometimes to explain legal problems and manage expectations to deliver the best advice possible to the client. To manage this concern, I have adopted some strategies which have proven helpful.
Develop a process. Having a clear process in place for communicating and decision making on a deal is crucial. I have always been fortunate in that regard, as my clients are often very well organised and have a clear decision-making structure and protocol for escalating and resolving concerns that arise in the course of contracting. This may not always be the case though and could cause considerable confusion and “recycling” of issues internally.
Apart from the decision-making process, just having clear expectations about the basics, like who is going to document the issues and how they will be presented, can have an impact on how the team functions. In some cases, members of the team may be more readily accessible by Blackberry than otherwise, so distributing issues lists in a spreadsheet format may prove a barrier to those individuals who are forced to open them on a mobile device. A simpler format may serve better. On the other hand, tracking and documenting the evolution of certain issues from the beginning to the end of a lengthy negotiation is important, so choosing a form of issue log that is clear and rigorous at the beginning of the process can pay dividends later
Define your role. When there are a number of people on the team, it is helpful to make sure everyone understands their role.. Often the lawyer’s role can include being the advocate for the most risk-adverse position, but it is just as important to have other individuals on the team who are willing to challenge that position to find a balance that is most commercially reasonable. It is also important to have at someone on the team who is prepared to advocate for the other party when preparing for negotiations, so that the other party’s positions can be anticipated and evaluated in advance of negotiations.
Become accessible. You will probably need to be able to communicate in multiple media to convey your advice effectively. Instead of providing a standard memo, you might resort to spreadsheets, slide decks, charts, process diagrams, and white-boarding to get the point across. This may be simply because the client’s time is severely compressed, and so only an extremely concise email will do. Other clients revel in the detail, and will only be able to properly assess an issue once the full impact to the contract and the corresponding business case is made out. To make your message clear, you should be prepared to use whatever media will deliver what the client needs effectively.
Solicit feedback. A contractual negotiation is a highly dynamic process, which requires constant feedback to control properly. It the midst of a complex negotiation, it can be difficult to take the time and evaluate what is working for you and your client, and what is not. However, this can be an important process, because it can make your communications with your client more efficient, and ultimately improve the experience for all involved. Feedback could be solicited informally or through a formal process – whatever is most suitable to the situation and the client. It is most important, in my experience, that it be done regularly and starting early in the process, so that adjustments can be made quickly before issues are amplified by the passage of time to unmanageable magnitudes.
These strategies have helped me greatly in delivering client advice effectively, but I know that I will be constantly working on them. If you have any other strategies, please share them below, or contact me if you would like to discuss them.
