ACC Docket 18 September 2012

HEARSAY

can handle negotiations, while the

other takes notes and updates the

open item list during the meeting. If

this is too much of a commitment for

your team, the chance of the deal get-

ting completed quickly is substantially

lessened. Share this with your team.

Next, ask your business lead or

the executive sponsor to talk to their

counterpart about the appointment of

the attorney on the other side. If an at-

torney hasn’t already been appointed,

ask them for an experienced attorney

to be assigned who can commit to

daily meetings. Once the attorney has

been appointed, ask for a one-on-one

meeting. Explain your plan to the

attorney and ask if a similar commit-

ment is possible.

Experienced attorneys already

know what the likely result of the

negotiations will be before they start.

If you feel the other attorney has the

same level of commitment, propose

At all times, focus on

maintaining a positive

working relationship.

Label disconnects as

!""#$%"&'"(')*+'%,(%#,'

wording, rather than

disagreements.

You have just been handed

your first important deal

as legal lead and have been

told that both sides want the

agreement completed yesterday. This

is your chance to shine. What now? If

you don’t have a plan, try this.

First, you need to get your team in

order. Ask that an executive spon-

sor be appointed internally who will

assist in obtaining timely technical,

financial and executive support to get

the deal done quickly. If the business

lead has not been appointed, ask for

someone who can commit to daily

meetings and daily turn-around on

their action items.

Next, sit down with the executive

sponsor and the business lead and

propose your plan. Each side commits

to daily meetings at a set time, prefer-

ably first thing in the morning, ideally

8 AM. A set time will save both sides

the inconvenience of trying to set up

the next meeting via email. It also

makes it easier to invite other stake-

holders to the meeting and to schedule

internal status meetings. Explain that

you will commit to an exchange of

daily redlines and open item lists with

ownership of each task delineated.

If your schedule does not permit

you or the business lead from mak-

ing this level of commitment, ask the

executive sponsor to assist in clearing

calendars. If it is a particularly large

deal, you might ask for a second at-

torney to back you up; one attorney

that each side initially take the posi-

tion that will likely occur after lengthy

negotiations, as opposed to extreme

positions designed to impress their

client groups. Soon enough, you will

both know if someone is not living

up to this promise. If you can get this

level of commitment from your legal

counterpart, and your business lead

can get corresponding commitment

from her counterpart, then you are

halfway there.

If these commitments cannot be

obtained, the other side might not

share your commitment to the deal. If

the other side refuses to negotiate in

the manner proposed, as they will not

be rushed, apologize immediately and

agree to negotiate in the manner they

prefer. Make sure then to communi-

cate to your executive sponsor and

business lead that a quick conclusion

of the negotiation is not likely.

Assuming all goes well at the first

meeting, review how the parties will

work together. To make sure the par-

ties have agreement on the business

terms, start with the business term

sheet. Or, if a business term sheet has

not been completed, you can quickly

review the basics: who is getting

what; what they can do with what

they get; and the financial consider-

ations. If there is a major disconnect

on the business terms (e.g., who owns

what), legal may need to step back

and let the business people iron out

the deal.

At all times, focus on maintaining

a positive working relationship. Label

disconnects as attempts to find proper

wording, rather than disagreements.

Don’t lob threats, accusations or ulti-

matums. Remain focused on what has

been accomplished.

I recommend keeping the open

item list as an ongoing task during the

How to Negotiate Important Deals QuicklyBY FRANK FLETCHER

Going Global | New to In-house | Ins & Outs | Small Law | The Contractual Cogitator | Outsource Resource

FRANK FLETCHER is general counsel for Nero AG, headquartered in Karlsbad, Germany, with subsidiaries in Hangzhou, China; Yokohama, Japan and Glendale, California, where he usually can be found. Fletcher can be contacted at ffletcher@nero.com, or on Twitter @LegallyFrank.

HEARSAY Going Global | New to In-house | Ins & Outs | Small Law | The Contractual Cogitator | Outsource Resource

needed, these approvals can be ob-

tained quickly, and surprises are kept

to a minimum.

Faithfully executed, I have seen this

system work. But there are substan-

tial caveats. Everyone must live up to

their commitments. Both sides must

be highly motivated to complete the

agreement quickly. Everyone must

sublimate their egos for the good of

the project: No grandstanding or

trying to prove you are the smartest

person in the room. Yes, the upfront

commitment is large, but by taking

charge, you can demonstrate that you

have the skills to handle the important

deals efficiently.∑

Have a comment on this article? Visit

ACC’s blog at www.inhouseaccess.com/

articles/acc-docket.

approved before execution of the

agreement, try circulating interim

executive summaries to make sure

there is executive buy-in during the

negotiations.

This way, when it comes time for

final approvals, all of the stakehold-

ers — legal, finance, technical and

executive — will be up to speed. If

exceptions to internal big rules are

meeting — even if it takes a moment

to record the item and who is respon-

sible — to report back at the next

meeting. If you review as you write it,

you can confirm everyone’s under-

standing in real time.

Address the redline immediately

after the meeting. Given the usual

day-to-day distractions, thoughts can

easily slip from your mind. You may

even consider sneaking away to a

conference room until your draft is

completed. Try to avoid the tempta-

tion to check emails, as we all know

where that will lead. In the long run,

you will save time on the redline if

you work on it immediately after your

phone call.

Daily meetings will limit the time

spent remembering where the parties

left off. The daily open item list will

lessen time agreeing on who should

have been doing what. If there is

an executive summary that must be

Everyone must sublimate

their egos for the

good of the project:

No grandstanding or

trying to prove you

are the smartest

person in the room.

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