3 ways lawyers and their clients can better communicate

Legal Drafting Cartoon

As a legal practitioner, I was often instructed to capture various forms of commercial transactions into a legal document. Many times, even after scouring the legal library for precedents, I was still left with a feeling that the legal document was not ironclad due to the lack of clarity of instructions from clients and the lack of business experience as a young lawyer on my part.

Fast forward to my career as a professional manager, I am yet faced with long forms of documents, full with superfluous words and clauses. Worse still, I am sometimes faced with poorly drafted standard form documents that I have to execute and have little room for negotiation simply because they are ‘standard’.

Now armed with both viewpoints of the legal advisor and the client, here are 3 typical communication pain points and some suggestions as to how to overcome them

Issue 1: Legal format and language

Chances are that in your professional career you have had the misfortune of encountering a poorly drafted legal document. Whether it contained unnecessary phrases such as “hereinafter referred to as” when a simple (“ “) would have done the job; or having to flip back and forth across the main document and the schedules, one cannot but help feel that perhaps their time could be better spent.

The legal document is not structured like a typical article or book. It typically starts with a definitions and interpretation clause up front, that contains prosaic and often repeated information such as registered address of the parties and the likes, even before we know what the subject matter of the contract is about. It is akin to a work of fiction introducing its characters in chapter one, in the absence of context.

TIP to the client: Skip the definitions and interpretation clause, and use it only as a glossary as and when needed.

TIP to the lawyer: In my later drafting I would enclose the definitions and interpretation clause at the end of the document, to provide a more natural reading flow to the business reader.

Also as to the multiple schedules at the back of documents, these are usually created with the end goal of being able to produce mass documents from a master document (think commercial tenancies in malls) in the fastest possible time by isolating the variable components to one area of the document for the paralegal or legal secretary to work on. For the client, it translates as cost savings in exchange for the hassle of flipping through pages.

Issue 2: Commercial lawyers function in their silo with little hands-on business operations experience

Have you ever sent a document for a lawyer’s opinion only to receive an opinion which primarily was correcting grammatical errors? This is not only frustrating, but evidence that many lawyers (especially those in early practice) do not put on a business lens in evaluating contracts before them.

Yet conversely, sometimes the instructions received by lawyers are not with sufficient clarity. In another case, a client had instructed a lawyer to prepare an employment contract with a profit sharing element, without defining what profit is. When asked for more information, the client proposed, “Why don’t you advise.” This is not an ideal situation for this requires knowledge of the company’s financial performance and expectations which a typical lawyer is not trained for. Professional managers would know that profit could range from gross profit, to operating profits, to profit before and after tax, and any other definition in between which the parties could agree to.

To overcome this communication challenge, a commercial lawyer should ideally equip him/herself with basic business and accounting concepts; while the client should be able to elucidate the transaction he is trying to reduce to a legal document, be it by a way of a simulated financial statement or a process flow document, as examples.

TIP to the lawyer: To draft a commercial transaction, obtain more instructions from clients if you are not able to visualize the transaction steps fully.

TIP to the client: Do not rely too heavily on the lawyer to advise on commercial and economic terms; these are business decisions. The lawyer’s role is to ensure that a commercial transaction can be performed and enforced.

Issue 3: Good lawyers excel at negative distortion thinking, good business people excel at positive distortion thinking

As commercial lawyers, you sometimes get the feeling of being the person in the church responding to the question “Should anyone objects to this marriage, let them now speak.” Face it, your clients are happy and racing to get the contract signed and making money, and there you are the naysayer lawyer, telling them all the 20 ways or more the other party could basically sc*w them over.Guns Pointing

The best documents that I have drafted gave both parties sufficient incentives to perform. The mental images of guns drawn and pointed are at the back of every obligation or warranty drafted: i.e., for every obligation there must be an incentive to perform, otherwise it is a meaningless clause.

Nowadays as a businessperson, in crafting a deal, the mental image is to achieve a win-win situation.

And herein lays the fundamental crux of the tension: great lawyers excel at negative distortion thinking (how things can go wrong) while great business people excel at optimistic thinking (how great things can be if everything goes right).

TIP to lawyer and client: A way to overcome this tension is for all the risks to be listed down, and have both the client and the lawyer weigh each probability of occurrence. Thus, doomsday scenarios are tempered; and the client will walk into a transaction with eyes wide open.

[Metamorphic Training offers workshops on Commercial Drafting to Junior Lawyers seeking to understand common business concepts and transactions and Essential Law for the Business Professional for professionals, managers and executives. For more information: visit www.metatrainings.com or email enquiry@metatrainings.com]

Dining etiquette: 5 tips to dining confidence

In the movie Miss Congeniality starring Sandra Bullock and Michael Caine, there was a scene where Sandra Bullock’s character was chomping down steak at a fine restaurant, at which Michael Caine’s character was appalled and remarked, “I’m sorry, what was the question? I was distracted by the half-masticated cow rolling around in your wide-open trap.”

Such etiquette gaffes are not constrained to Hollywood movies. At a formal dinner in Kuala Lumpur recently, a second generation business owner not only erroneously claimed the bread on her right as her own, she chided the guest on her right who had touched the bread roll, “The bread is MINE!”. For those of us who sometimes will have problems remember which bread is yours and which drink is yours, the simple left “b” and right “d” hand [see picture] are fool proof discrete reminders in times of social emergency such as these.

Bread and Drink

 

These two scenes nonetheless reminds us that dining etiquette plays an important role in your personal and professional lives. However if you do not have access to a Henry Higgins or a Harry Hart, you are not doomed to be an uncouth Eliza Doolittle or Eggsy Unwin forever.

Here’s five easy tips to dining confidence:

  1. Think you have impeccable manners already but want to have a check? Eat alone in front of a mirror. If there are any half-masticated cows rolling around in your mouth, you will see it.
  2. When in doubt, watch the others on the table. Not sure which knife or fork to use? Watch what the majority on the table does and follow.
  3. Be sensitive to cultural norms – a quick google search will help if you are going to be in an international dining environment: for example, Westerners rarely share food off their plates unless its family style dining, Muslims eat only with their right hand, Chinese frown upon chopsticks stuck upright, Japanese do not use soup spoons, to name a few.
  4. Eating is not a race neither is it a solo journey: Do not start eating until everyone else’s food has been served, unless you are urged on; and try not to be the first or the last to finish on your table as it will hold the rest of the table back.
  5. Last, if the food is hard to eat; you will have to make a mental trade-off in your mind of whether you are going to make a mess or leave the food. Foods potentially to avoid during a business setting are french onion soup (imagine how you are going to break the gruyere cheese crouton with your soup spoon), steamed artichokes, crabs, fried chicken or even sloppy burgers.

And with that you’re equipped for your dining “Ascot”.

Bon appétit!

[Metamorphic Training offers bespoke presence and confidence executive coaching for C-level suite and candidates by senior ex-C Suite officers with international Fortune 50 experience. For more information, please email enquiry@metatrainings.com]

5 Tips for Giving and Receiving Feedback Effectively

“If you cannot say anything nice, don’t say anything at all.”

Growing up, we have probably heard that line being repeated over and over again by our parents. In Asia, people tend to avoid giving feedback, fearing that it might hurt the other party’s feelings. Yet effective feedback is a critical part in any organization’s ability to drive and improve performance.

This is why it is important to give feedback effectively. Below are some tips to help you provide feedback at the workplace:

1. Don’t beat around the bush

Confront the colleague associated with the incident once it has been witnessed. Speak in private, but be fact-based and avoid generalities. For example, “Our agreed timeline was 12 noon, but your email was at 130pm,” as opposed to “You are always late!”

2. State how the incident made you feel

Tell the other party how the incident has made you feel as a result of his or her actions. The receiving party is not in a position to deny the fact of how you feel. For example, if your colleague was late for work, inform your colleague that he or she made you feel anxious and concerned about the impact to the company and its client.

3. State future actions

Discuss with the colleague on the things that he or she can do to prevent the incident from happening again. In the example above, you can ask your colleague to give you a call to inform the team that he or she will be in the office a little later that day.

In addition to giving feedback, it is essential to receive feedback to help you see where you stand in terms of work performance. Some of the things that you should do when receiving feedback include:

1. Keep an open mind

Avoid getting defensive and wait until it is time for you speak to explain your situation to ensure that both of you are on the same page.

2. Establish future goals and action plan that can help improve your performance

Discuss with your supervisor to help you identify the things that you need to do to improve work performance and advance your career. These goals can be as simple as clocking in early for work and completing projects on time.

On a lighter note, these tips has also been proven to be effective in communication amongst spouses and significant others. 😉