Sign Here: The Enterprise Guide to Closing Contracts Quickly: Difference between revisions

It’s a nice, snappy title and excellent cover design, but in calling his book “sign here”, and not “everything you need to know about designing commercial legal process in the twenty first century” {{author|Alex Hamilton}} has sold himself short. This is a really good book, filled with counter-intuitive insights which have you jumping off in directions you didn’t expect. I ruined my copy in a weekend walking round the local park scribbling gnomic revelations on it (and occasionally walking into trees).

What I liked about it especially is that so much of it focuses not on [[legal services delivery|legal services ''delivery'']] — which every other [[thought leader]] obsesses about — but the ''design'' and ''content'' of legal process, with a view to ''optimising their outcome''. Legal service is not like delivering pizza. No one cares about the ''box''.

We [[legal eagles]] ''think'' we know what is important: [[Indemnities]]. [[Events of default]]. [[Governing law]]. But these aren’t the parts that create [[litigation]]. Litigation comes where you least expect it: more or less, by definition.  

Worse; indemnities and default terms are all catastrophic fire-breaks; last-ditch tools for when everything has gone Pete Tong. But should we focus on life-rafts — or making sure there is enough gas in the tanks and the wings are properly attached to the fuselage? You only need life-rafts once you crash. If the legal service delivery providers do their jobs properly, the plane shouldn’t crash.

To obsessing about disaster scenarios in negotiation is like war-gaming divorce outcomes on your wedding day. It may, curiously, make divorce more likely.  

“I’m talking about a twenty year deal here and you’re stuck on [[Process agent|''process agents'']]? Today? What, are you ''expecting'' to sue me?”

 

Of course, commercial harmony it is not all down to the lawyers — indeed, it’s barely anything to ''do'' with the lawyers: like bad parents, they can only screw it up. Once a contract is inked, sensible business people will not cast it a backward glance.<ref>I have a theory, that I haven’t quite nutted out yet, that a ''draft'' contract plays a totally different role in commercial life to an ''executed'' contract. A draft contract is all about ''signalling'' to your counterparty: commitment, thoroughness, dominance: it is intended primarily to ''persuade''. An executed contract is like a will and testament; instructions on what to do should one or other party unexpectedly die or become incapacitated. In any other case of doubt, the parties should speak to each other.</ref> Well-managed relationships do not descend into acrimony; if you prudently manage the portfolio while the relationship is ongoing, you can distribute the risk of loss should that unwanted eventuality arrive. The way to manage risk is through your ongoing behaviour, not legal documentation, that is to say. Don’t [[Over-engineering|over-engineer]] your contracts. Don’t design your plane to be waterproof in case it falls into the sea. ''Design it so it doesn’t crash.''

===The agency problem looms large===

Much of the cut and thrust of a commercial negotiation is not at all about the interests and benefits of the principals, but is an elaborate pantomime performed by their agents to justify their own appearances. The fear of [[redundancy]] — in the board sense of not having  enough to do, but in the narrow sense of losing one’s job, too drives much negotiation behaviour. This [[iatrogenic]] peripheral fiddling serves the agent’s immediate need — to look busy — but at a long term cost of drip-feeding complication, confusion and bad engineering into templates, processes and roles.

 

The challenge for innovators is getting a handle on how to stop the [[Barnacle|barnacles]] forming, and not inadvertently making the process worse, as much [[legal tech]] does. The problem runs deep; no-one has managed it so far.

Like [[Commercial imperative|relationships]].