As I mentioned last year, I always look forward to the first part of the year as general counsel. Basically, it is a fresh start for me and for the Legal Department, a time to close out the past year’s issues and move on to next year’s problems. Though, realistically, a lot of last year’s problems just tag along into the new year like a rude party guest who just doesn’t get the hint that it’s time to leave!
One thing I do near the beginning of every year is put together a list of the Top 10 things I think the Department needs to focus on over the course of the upcoming year. These are tasks that are rooted in cement – they need to get done or there needs to be a damn good reason why not. Well, as – unlike last year at this time – I am back in the General Counsel chair, I have been jotting down ideas like mad. As move deeper into 2018, there are a number of things on which I think my team and I should be focusing. Like last year, this edition of “Ten Things” will share my list with you. I hope that you come up with your own Top Ten list or, if not, that my list gives you some good ideas for things you want to focus on in 2018.
I was working my way through a contract recently and, like I always do, I flipped to the last several pages. This is where you find the real action in any commercial agreement. That’s right, the “boilerplate” clauses are where I like to spend a lot my time. Why? Because if you get it wrong it can lead to big problems down the road. Trust me, I’ve seen it. Like many in-house lawyers, I did not begin my legal career focusing on contracts. I started in litigation where I got see up close and personal the results of well-drafted contract clauses and poorly-drafted contract clauses. When I went in-house, I taught myself a lot about drafting contracts, stumbling along with the help of some great mentors, a couple of books on contract drafting, and, most importantly, by reading a boatload of contracts – trying to figure out how all the pieces worked together. My realization was that contracts simply tell the story about an agreement between two parties. How the story turns out depends in large part on who is doing the writing.
I remember very clearly one of the first commercial agreements assigned to me when I started working in-house. The attorney who asked me to work on it told me not to worry too much about all the boilerplate, saying, “it’s all pretty standard stuff.” Since the boilerplate clauses took up almost half the agreement, that didn’t feel like the right way to go. So, contrarian that I am, I spent a lot of time on the boilerplate. And I am glad I did because I found a lot of little twists and turns that were anything but standard, fair, or balanced. The lesson was if you ignore or skip lightly through the boilerplate, you are begging for problems or surprises down the road. Since all in-house counsel should have a working knowledge of contracts, this edition of “Ten Things” describes some of the key boilerplate clauses you will find in most commercial agreements along with a few words of advice from someone who still likes to get his hands dirty reading every sub-paragraph of every clause “stuck in the back” of most contracts. Hey, I know it’s only boilerplate… but I like it: