The world has witnessed many historic battles over the centuries: Rome versus Carthage, Ali versus Frazier, and Godzilla versus King Kong are just a few that come to mind. None compares to the near-constant struggle between the legal department and the sales team. If you have spent any time as an in-house lawyer, you are familiar with these barbs from the sales team:
“Legal is where deals go to die.”
“Legal, the department of ‘No.’”
“Legal is too slow.”
“Our contracts are too long.”
“My deal is stuck in legal.”
There are more, but you get the point. To in-house lawyers, these are incredibly unfair generalizations that rarely take into account the many failures on the part of the sales team to get out of their way or do the work needed to get deals done. It’s easier just to blame the lawyers. Regardless, this is not a fun way to practice law; your client thinks you are the problem! What if you could turn all of this on its head and get the sales team to love the legal department, to view legal as the “Department of Yes” — sound like a fantasy? It isn’t; it’s doable. This article will lay out five ways you can improve communications with the sales team:
1. Be a teacher — and a student. Everything starts with each side understanding what motivates the other. Start by inviting the sales team leaders to meet with the legal team to communicate the contracting process in general and how you can work together to make it faster and easier.
Come to the meeting with an annotated version of the contract at issue, describing what each contract provision is designed to do and why it’s essential. Walk the sales team through the agreement section by section, being sure not to talk down to them but educate them on “what’s what” in the contract — this is the “teacher” part. Next, give the floor to the sales team and let them tell you what problems they see with the contract, the legal review process, and what they would like changed to allow them to get more deals done. The legal department is not so proud as to believe the contract — or the process — cannot be improved; this is the “student” part.
The key is to begin listening to each other, collaborating, and identifying common ground or areas where either side can make changes, whether in contract language or behaviors. It won’t solve everything, but it will be a start.
2. Make contracts easier to sign. We have all seen contracts so laughably one-sided that it makes you shake your head and wonder why anyone would think you’d just sign it “as is.” Now consider this: are your contracts like that? If so, one way to get more contracts done faster and with less friction with the sales team is to make them easier to sign.
Shoot for fairness and balance in the boilerplate section. For example, make provisions like indemnity, limitations on liability, and damages caps mutual. They will come back to you redlined anyway, so why not avoid that step and start at a place that is easier for the other side to accept immediately? If you are in the technology business, give an infringement indemnity. If you hold data, agree to abide by applicable data privacy law. There are likely dozens of places in a contract where you can put yourself in the other party's shoes and figure out what they will need to close the deal.
Stop wasting time and energy holding on to untenable positions you will ultimately give on anyway. If the sales team sees a practical legal team, the love will start to flow.
3. Accept more risk. Studies show that hyper conservatism on the part of in-house lawyers drives costs and lost opportunities for the business. Ideally, there would be zero risk to the business in every contract, but that never happens, so why waste time and energy taking positions around risks that don’t align with what the business is prepared to accept? Your job is to advise the business on the risks and options and give your recommendation but, ultimately, fall in line with what the business is willing to accept to get the deal done.
You may not like uncapped liability, but the legal department doesn’t run the business. Unless it’s criminal, illegal, or someone could get seriously injured, don’t hold up the parade because you have a more conservative risk profile than the business. Just make sure that the right people in the company decide what risk to accept. Communicate to the sales team and senior management about what is acceptable to the business, advise them as best you can on what you recommend, and advocate for what the business wants to do. When the sales team realizes that you are drafting contracts that meet the company's business goals — and not the wishes of the legal department — you will start to change the relationship dynamic through collaboration.
4. Get out of the way. Lawyers like to think of themselves as indispensable to the contracting process, but they’re not. Some of the best contract negotiators I have ever met were not lawyers — they were shrewd business people. Don’t oversell the need to have legal involved in every step of the process. Create templates, forms, checklists, playbooks, and processes that allow the business to sign certain types of deals without ever involving the legal department.
Contract management systems today often have contract assembly tools as part of the technology; give the business access to it and step aside. Why must you be involved if the sales team sticks to the form and the clause library? Yes, it’s a bit more risky than legal seeing every contract, but please refer back to No. 3 above.
If set up correctly, the odds of significant problems are low, the sales team is ecstatic, and the legal department has more time to focus on things of higher value and risk.
5. Attend sales department meetings. Every sales team I have ever worked with has regular weekly and monthly meetings to discuss the sales pipeline, priorities, issues, etc. However, suppose the in-house lawyers are not sitting in on those meetings. In that case, they are missing a huge opportunity to enhance the relationship between legal and sales. By learning the priorities of the sales team so the legal department can ensure it is focusing on the deals the sales team thinks are most important, they'll spot issues before they become bigger problems. It is almost always easier to solve a problem today versus six months from now — things such as, “Did we need to do a trademark search on that new product name before launch?” can be avoided.
Ask if you can attend team meetings, sales kick-offs, monthly operating updates, or whatever. The more the sales team sees the legal department investing in the sales process, the more they will think of the lawyers as members of the team and not obstacles to overcome.
You can do more to improve the dynamic between the legal department and the sales team. But, accepting the status quo that legal and sales must always be at loggerheads is not only wrong, but it is also a disservice to your client and the company.
Fortunately, lawyers with access to Practical Law have numerous ready-made resources available to ease the pain, from checklists and templates to teaching presentations, sample clauses, and “what’s market” information to help navigate contract negotiations — both internal and external. All it takes is someone to make the first move. Why not the legal department?