April 12, 2020 Practice Points

Force Multiplication for Contracts

Lawyers need to be force multipliers and train contract managers and the like to deal with some contracts issues.

By Taylor Brown

Is a lawyer’s time more valuable than anyone else’s time? Yes, it is—but only due to population levels. I always feel self-conscious when I discuss this topic because it would be so easy to come off as an elitist. Claiming that my time is more valuable than anyone else’s time simply doesn’t sit well. I can, however, say that there are far fewer attorneys than contract managers and subcontract managers, which is why lawyers need to be force multipliers and train contract managers and the like to deal with some contracts issues.

Benefits of Force Multiplication

I try to look at this force multiplication effort more as an effort to crowdsource than anything else. It empowers the people who would otherwise come to me for advice and approval to make some of those decisions for themselves.

Even with the best will in the world and a killer work ethic, one person simply does not have the time to read and negotiate every contracts issue that could arise in anything but the smallest of businesses; and even then, it’s not likely to be the wisest use of a lawyer’s time. In a larger-scale operation, there may be more lawyers available to share the load, but that will always be a small group of people compared to the population of contract managers, subcontract administrators, and those in similar roles.

If I have 50 contract managers that I’ve taught to address an issue in a certain way, I’ve now made it so that at least a piece of me can be in 51 different places at once. This has the beneficial effect of protecting my time so that I can focus on giving more time to each of the difficult or risky issues that those other folks rightly bring to me. It also breeds a stronger and more confident group of contract managers who aren’t simply robotically parroting my instructions but who are instead applying some critical thinking skills themselves. Finally, and most importantly, it makes our business more responsive and agile; a lawyer-shaped bottleneck doesn’t do anyone any good.

Negligible Risks

Some would look at this approach as being too risky to try.

There is one very legitimate risk involved in putting additional discretion in more people’s hands—they will inevitably get it wrong sometimes. I counter this with the fact that if I’m doing everything, then necessarily some of those things are not getting the attention that they deserve. I cannot believe that me giving something 50 percent of the thought it needs is a safer approach than trusting a group of select individuals to apply principles that I helped to devise.

The more self-centered concern that some people cite is the risk to their own job security. “If I parcel out my expertise, what does the company need me for?” they ask. I think that this isn’t realistic. There is nothing that I can do to make that group of contracts professionals into full attorneys with all of the same knowledge and skills that I have, as well as access to all of the sometimes-sensitive or privileged information that I encounter. If the company cuts your role for increasing the effectiveness of their staff, I have to think that you were on the block already.

Implementation in the Contracting Arena

Assuming that we agree on the principle of force multiplication, how can we accomplish that in the contracting arena? I limit myself to that example because it’s the one I live in day to day, but this could be equally applicable to many other legal specialties.

The most critical step is what I just discussed—the willingness to let go of some of your power and specialness. If you are unwilling to do that, then the exercise is at an end.

The next step is to create tools to help your contracts staff members exercise their autonomy but still be confident that they will reach the right conclusions. Items I’ve used are the following:

  • Template agreements. Even when you can’t use your own paper for a deal, having a template of your preferred language to use for comparison to the deal document will help identify concerns.
  • An authority matrix. This is a list of types of terms common in the contracts with which I work. The generic categories include things like “acceptance criteria,” “insurance,” “indemnity,” “choice of law,” and “disputes.” These are further divided into subclauses as needed; for familiarity, I key mine to our templates mentioned above. Within each of the categories, I try to define whether the contracts professionals can negotiate the clause on their own and, if so, within what limits. I also include a point of contact for each clause as a resource because I am not always the best choice. Finally, I identify what trade-offs I think are likely to apply; for example, you can agree to make indemnification mutual but only if you remove defend from “indemnify, hold harmless, and defend.”

The final step is to educate them about their professional purpose and the meaning of the terms with which they’re working. Even tenured professionals sometimes view their job as simply to mark up every proposal they get or to hew as closely as possible to the standard language regardless of logic. They should be more focused on comprehending the language, evaluating overall impact, and focusing on the win condition; but, sadly, most are simply never taught to think that way. Working with contracts professionals to help them understand the meaning of the language they are reading, how to apply negotiation techniques, and how to define a success works wonders.

Coupled with occasional check-ins to ensure that our principles are being applied properly, these techniques should yield a far more capable team—and a far less stressed-out lawyer.

Taylor Brown is assistant general counsel with PAE Government Services Inc.


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