There are many factors that make up a successful working relationship between a commercial lawyer and a client. From a lawyer’s point of view, a very important factor (probably lying just below “pays on time”) is communication and collaboration. Initial instructions are normally easy:
“I need a software licencing agreement/services agreement/reseller agreement] that does X”.
“Can you review this development agreement for me?”
“I don’t understand this licencing clause, what does it mean?”
Don’t know what commercial contract you need? Then it’s up to us to guide you and suggest possible solutions. This is also fine. Got any specific requirements for the contract: a specific duration, special customer obligations or some suggestions on how fees can be structured? Yup, we can also deal with that.
However, that’s not the end of the process. Contract drafting is very much a collaborative process between the lawyer and the client. The initial set of instructions are always invaluable, but they will never be enough to properly draft a bespoke agreement that meets all of a client’s specific needs. Questions are always going to be raised regarding certain aspects of the agreement that need further input or clarification.
Background knowledge concerning your business and customer base are also invaluable. What’s going to impress your customer base? Are you dealing predominantly with small businesses who are going to be put off by a 25 page contract with big bold capitalised letters at the top? Or are you looking to make an impression on a market leader?
It’s also really important that you understand the terms of the contract. This doesn’t mean that we have to spend hours on the phone discussing the legal merits, case law and history of each word and clause.
However, you should know the impact each clause will have on you and your customers. Your customers will invariably ask their own questions about agreements they are about to sign, and you’ll want to be able to explain what they mean (and make sure they’re not deleted!). Secondly, the agreement will never properly reflect your business requirements without your input. This will in turn pose a risk. Was there a particular concern or customer obligation you wanted inserted that wasn’t covered in the initial instructions? If so, we need to know about it!
So next time you’re instructing your lawyers (hopefully us!), remember that collaboration is the best way to ensure you end up with a truly bespoke contract that is right for you and your business.
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When it comes to commercial negotiations, they often don’t turn out the way you had hoped and then there is no going back. Instead of struggling on your own, losing a lot of management time and still not being sure you have got the best deal, let us negotiate for you.