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Experience the Critical Commodity in Deal Negotiation

12 Feb 2021

by Tim Pullan

Is a 5 year PQE lawyer worth double their 2.5 year PQE self? The answer is almost certainly yes, and perhaps triple that value if they can find a way to be more experienced than their years. Why is experience so important?

A few years ago I was asked to represent a client in relation to a commercial transaction type I had worked on many times, negotiating with a counterparty I had represented in the past. Everyone including the counterparty agreed to this, but it genuinely felt like cheating because I knew the issues, pain points and negotiating patterns so intimately. 

contract acceleration

At every turn of the negotiation I was several paces ahead and understood exactly how to drive a highly favourable deal, which I did. I wasn’t a better or brighter lawyer than the person representing the other side, but they were less experienced on this particular deal and the commercial context. The deck was heavily stacked in favour of my client. Talent and intellect matter, but in the legal game, learned experience is the truly bankable commodity, and the more specific the better. Note: this was as great for the client as it was for me.

Of course, this general insight is hardly novel, as regular consumers of corporate legal services will be familiar with their lawyer suddenly costing 20% more than they did last week because of a ‘PQE’ review (post-qualification experience). 

Young aspiring lawyers learn this very quickly or fall behind. They will spend the first few years after qualification hungry to get involved in the best and biggest matters and if they are in private practice, work with the most dynamic partners. Quality experience means an acceleration in earnings, even better and bigger matters and the potential to get to the rare and sought after senior roles fast. This was my experience as a young associate back in the late 1990s and early 2000s.

The environment for young lawyers has changed since then, one of the key factors being technology, and this change will accelerate in the coming years. Looking back on my own 6-year journey as an associate before attaining partnership, it’s interesting to reflect on what today’s technology could have done to accelerate my career .

Over the past few years there have been dozens of research studies and articles dedicated to how legal technology – legal AI in particular – can automate many of the repetitive tasks allocated to junior lawyers, but I’ve noticed that there is little research dedicated to how technology can actually accelerate learned experience and therefore junior lawyer’s career paths, or the career paths of mid-level or senior lawyers for that matter.

All of these studies work to prove the point that automation in its various technical forms is compelling when it comes to efficiency and cost savings. However, this misses a more fundamental human question and source of value; how can legal technology help lawyers become better lawyers faster? The advent of digital research tools has without doubt accelerated a certain type of learning crucial for aspiring lawyers.

But what about that more rarified learning experience? In my field of commercial transactions, this means the speed at which lawyers acquire the particular combination of deftness, responsiveness and pragmatism that makes them the must-have lead on the really important deals for their organisation. These are the questions I think companies and young lawyers should be asking.

Fast-tracking value with experience

Over the years, I’ve had many different experiences negotiating deals, and I guess that is why I am so interested in the benefit of that experience right at the heart of deal negotiation to accelerate contracting.

It’s helpful to look at how experience is typically acquired. Contract lawyers don’t start from scratch at the beginning of every deal: if they are lucky they will have had the opportunity to shadow more accomplished colleagues (in every law firm and company, astute young lawyers will quickly identify the senior people to follow and the ones to avoid). If this is not available, they will learn on the job, hoovering up points from internal policies and the key issues on contracts they have directly negotiated, reminding themselves of similarities in deals they have come up against in the past.

They may also look at the handful of previously signed agreements to which they have access in repositories of contracts, and, if they are well organised, clause banks, where scenarios and recommendations are defined and mapped. Based on all of this, lawyers will build and then rely on their general understanding of what’s normal practice.

These are all important learning opportunities, but they are by their nature limited and to a certain extent, random. You don’t know what you don’t know.

The career path from junior lawyer to senior lawyer or general counsel is a long one, often stretching out 10-15 years. The difference between a junior lawyer and a senior lawyer is, to a large degree, the quantity and quality of experience. And if companies are looking to prioritise what they get out of legal technology, it should not be simply to save time or costs on low level tasks; it should be to accelerate the pace at which their lawyers become experienced and in the context of high value transactions, better negotiators and deal closers.

If you can make a lawyer experienced beyond their experience, you can fast-track the value they bring to your organisation. This is exactly why we have designed our product, and introduced specific features, to fast track that experience and help lawyers of all levels to negotiate with confidence and accelerate contracting for the business they support.

To give a very specific example, we have just introduced a feature called ‘familiarity’ to our contract acceleration platform which helps our users (typically lawyers) to very quickly understand which clauses within a contract are uncommon or vary from normal practice in some way, and which are more standard and safer to ignore.


Without a technology like this a lawyer will have to read every word of every contract to fully understand what’s in it, even though the vast majority of the words and their meaning are standard and represent no risk. Our familiarity feature works by comparing each point of meaning in a contract against 3 benchmarks,

First we compare the provision against the companies own contracting policies or playbook
Next we compare the provision against the companies signed agreements, effectively crowdsourcing and democratising the experience within the legal team
Finally we compare the provision against a volume of similar external contracts
We present the results back to the lawyer to accelerate their review and decision-making. We are not only showing them the risks within the contract that they have asked us to look for by virtue of their policies, but we are also showing them the inherent risks due to something being uncommon against their own contracting history or against similar contracts that have been agreed elsewhere.

We are showing them the unknown unknowns, we are giving them experience beyond their years. In doing so we help them drive better business outcomes by supporting faster, smarter, and better work.

It’s important to look beyond technology for technology’s sake, and into the fundamental career empowerment it is giving lawyers, and the business value it can generate. If accelerating experience and the resulting skills is a key component that technology can deliver to lawyers, the benefit is felt not just at the junior lawyer level, but across both mid-level and senior lawyers alike – and their employers. Throughout my career, what I’ve found most valuable are the tools and methodologies that have accelerated experience at every level of seniority.

To me, this is the power of technology, AI is not a scary robot after our jobs, it is a technology that has the power to make each and every one of us better at what we do, and by extension help companies achieve their full business potential.

If you would like to see the ThoughtRiver platform in action, Tim is presenting a webinar on his vision for contract acceleration and showcasing ThoughtRiver’s contract acceleration platform on 17th February and you can sign up for free here to watch.

And, if you would like to find out where your company sits in the digital transformation of legal, you can complete a simple online assessment here.

(Full article originally published on Artificial Lawyer.)

  

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