Intro:
Welcome to the Contract Lens podcast brought to you by Malbek. In this podcast we have conversations with contract management thought leaders and practitioners about everything contracts and its ecosystem. Today's episode asks the provocative question, who owns contracts? Helping us answer this riddle is Jason Smith, Managing Director at Elevate Services, a law company providing consulting, technology and services to law departments and law firms. Jason is a legal technology visionary and the Chair of the State Bar of Texas Corporate Counsel Section. He has spent his career assisting legal professionals with the use and development of technology in the practice of law. So now it's time to relax, grab a glass of wine, and let's talk contracts.
Gary:
Hi, Jason, how are you today?
Jason:
Hey, Gary, doing great. How about yourself
Gary:
Fantastic. The actual official title is Who Owns Contracts Anyway? And it was interesting, I was in a lunch-and-learn the other week and somebody asked the group, "So can you please tell me, in your organization, who should be involved in contracting?" And I said, "Well, hey, I'm doing a podcast on this with Jason Smith in about a week, so if you want to catch this on our podcast, please feel free to tune in." But looking at the definition of contracts, I think we should take it probably a step back and look at the contracting process. So who should be involved in the contracting process? And as we look at that, we talk about the document itself, but really the lifecycle of the contracting process in a doughnut format. And what I mean by that is, when it starts it's not a linear process, it's circular. So, what are your thoughts on the definition of a contracting lifecycle, whether it be technology or process or otherwise, and then who should be involved in that?
Jason:
Thanks, Gary, and I appreciate you guys inviting me to do this podcast with you. I think you sort of answered the question in your first question, which was, in your example, who in your company owns it? And I think that's key because I think each company really kind of defines who owns the contract, their culture, their risk tolerance. And if you asked 10 different companies, you'll probably get 12 different answers. And the idea there is that, who should be involved? I think everybody's involved. Everybody's involved in the contracting process, the lifecycle, because the lifecycle itself is that relationship with the other party, and that relationship encompasses a lot of different things.
Jason:
Now I know in today's world we often equate, quote unquote, and you can't see me doing the air quotes here, but CLM is often thought of as really "the technology". That's kind of when people say CLM, they're thinking systems, but if you break that down, CLM is contract lifecycle management. And it's at the heart of that lifecycle piece that we're talking about here and that lifecycle, sometimes, it begins at the identification of an opportunity. So that may be sales. It may be an inbound request that may be from marketing or someone else. And that process then begins that sort of relationship dance, that courting of the other party. Then it becomes a little bit more formal and we enter into the agreement and the contracting process, which then sounds more like, and I'll say I'm biased being a lawyer, that's a legal process, because at the end of the day, the document itself, the agreement, is a contract, is a legal artifact.
Jason:
But if you ask a company or folks at a company who owns the process, sales will tell you, "Look, this is a commercial relationship. This is a commercial agreement. Therefore there's a commercial process." Yeah. Somebody in legal, they'll say, "Well, look, it's a contract, therefore it's a legal document. It's a legal process." And I think the answer is, "Yes." And it goes back to your question, who at your company owns it? It depends on the company. It depends on the market they serve, their risk tolerance, their culture. And I think therein lies the question for all of us to try to answer, is, who at that company should own the contracting process? And it's a multi-level question, I guess.
Gary:
So, Jason, you said something there about commercial and legal, and it always seems like there's this dichotomy between commercial involvement, legal involvement, who should be involved at what step of the process? I know you've been doing this a long time and you've had many projects in this space. Can you tell me how you think things are changing moving forward? Do you see that coming together, commercial and legal? And why in the first place do you think there was this sort of separation between commercials involvements, whether it be sales or finance or legal, obviously looking at a lot of the terms and conditions and risk tolerance.
Jason:
Yeah. I think if you just say, "Let's look at contracting," that's a big nebulous bowl of jelly, right? That's like, "Okay, it can mean a little bit of anything to anybody." So if we really unbundle it and unbundling contract management is not that different from what's happening in the legal space, and I think they may be parallel and related, legal is entering this world of sort of unbundling services. Obviously my firm, Elevate, a law company, is looking at that unbundled world of, let's look at the discreet things that happen in these activities. And we can break them down into really practice of law activities and not practice of law activities. And a lot of times those are conflated and sort of overlapped in between. And I've been saying for a number of years that I thought contract management was at the epicenter of even that bigger conversation in legal because when you look at contracting, a lot of companies that I've worked with, they have non-lawyers.
Jason:
And I know a lot of people are going to scream when they hear me say that because it sort of is a loaded term these days, but they have people who are not licensed to practice law doing things like contract drafting, contract negotiation, and those have historically been viewed as something a lawyer does. And as we break the tasks down and unpack that and unbundle it, we start seeing, there are some administrative tasks sort of wrapped up in that. There are things like the workflow process of moving the contract between stakeholders, even the drafting of things. And then you get back to that core question, is the contract commercial or legal? And the answer is, yes, there are commercial terms related to pricing and volume and all sorts of other commercial things related to that relationship and that exchange of goods and services and money and so on and so forth.
Jason:
And then there's sort of the legal guardrails around that relationship. I'm a big fan of metaphors, so you'll see I use a lot of them. But I often use this metaphor in terms of building a house. Like, you could have the architect design the house layout. Here's how many bedrooms, how many bathrooms, where you want the garage? Do you want a pool? Things like that. And if I go in and just build that, and then afterwards say, "Okay, now let's call in the electricians and the plumbers to do their thing." Well, they're a little hamstrung with where they can put the wires, where they can put the plumbing, because the rest is already there. And what I say in contracting is, if you do it in that serial format and you really attack all of the commercials first and then leave legal as an afterthought to throw it over the fence, you kind of hamstring legal.
Jason:
And legal... And again, I'm a lawyer so I'm good at... I'm going to take a personal bias here. Legal always sort of gets beaten down because we get called the department of no, or the sales prevention department. But when you do this linearly, now I, as a lawyer, don't have any of the commercials to negotiate. All I can do is operate within the levers of legal. If I moved some of that up to the front, so for instance, back to the house metaphor, if I involve the electricians and the plumbers along with the architect, we can design it together and so we can start making those sort of, pull those levers, where do we want to put this? Where do we want to put that? That changes how we build this and the risk that we entail. My offering is, that's the best practice. Get legal involved early.
Jason:
Then we come to the second question, which is, look, lawyers are already so busy. I don't hear any legal departments saying, "Please give us more work. Involve us in more stuff." It's quite the opposite of, "How do we remove things off of our plate?" So you tie all of this together and say, "Well, what if we unbundle those things you normally do in contracting?" So we unbundle it. We see some of this administrative stuff. We can move that earlier in the process, but legal then says, "Well, you know, we don't want to give everybody just the ability to just randomly create road contracts." So legal can architect this structure with guardrails. And that's where CLM systems come in place because you can take that legal know-how and legal, the thing I learned back in the '90s when I came out of law school was, legal being so rules-driven it lends itself well to technology.
Jason:
And so now you can take that legal know-how, an example being, a sales person may have an opportunity with a customer who's based in California. That salesperson doesn't need to know anything about CCPA, data privacy, cybersecurity, GDPR. The lawyers can come in and say, "Well, we need to make sure we have CCPA language in this contract." And what you do is, you bake that into the system so that when that opportunity comes through the system and says, "I need a contract for this particular customer," the system can be triggered to say, "This contract needs to have CCPA language embedded in it." So you've involved the lawyers, you've involved the architect in the beginning of this, or the electrician or the plumber, in the beginning of this process, without them necessarily physically taking the time to be involved in that process on that day. And I think that's really where software systems, CLM systems, bridge that gap and allow legal to move forward into that process. So you have sort of co-ownership of that life cycle early on.
Gary:
So, the software then actually enables the attorneys to have fingerprints in an automated fashion from the very beginning.
Jason:
Absolutely. I think you hit a key term that cannot be understated, which is, enable. Too often I see customers say, "Oh, our contracting process is a mess. We need a tool." And they'll go sign somebody to do Google search, they'll identify vendors based on who's got the best SEO package and who's investing the most in their Google search, and they'll get a list and they'll think, "This technology is going to solve my problems." And they don't take a step back and think, "First I need to figure out what are the problems? What are the sticking points?" And those are process questions. And so, I always talk to customers and say, "Look, let's talk about that process. What are the pain points that you're running into? What are the difficulties you're having?"
Jason:
And sometimes the difficulties are within a group, within legal, or sometimes they're cross-functional and it's very hard for one stakeholder, let's say legal, to come in and say, "We're going to do the requirements gathering and understand what sales is doing and what finance is doing." And that's where folks like myself come in, because we can be that translator. I can come in and speak sales. I can speak finance. I can speak legal. And, oh, by the way, these folks all have day jobs. So it's not really something they want to add to their daily calendar to say, "In addition to all the things I'm supposed to do in my job description, I also need to figure out what sales is doing and where the breakdowns are in the process and really optimize the processes, and so on and so forth." And so that's where the independent consultants can come in and help with that.
Gary:
Jason, as legal operations, and you're talking about process improvement and a lot of different things, not just the tool, legal operations is about the business more than it is about legal per se. This is something where you want to make sure that, like you said, it may not be an attorney that's involved with best practices to make this business unit perform the way that it can for internal stakeholders throughout the company.
Jason:
Yeah. So legal operations is sort of similar to legal tech in terms of vernacular, which is operations is operations, right? It's just applying it to the legal department. And that's sort of a new thing. I mean, that's not something that, if you asked 20 years ago, what is legal operations? People would look at you with a funny face because it's relatively new. I say relatively, probably 10 to 15 years. And the idea is that you have sort of twofold. You have general counsel and legal departments really trying to get a seat at the executive table. But in order to do that, you've got to change a little bit, transform from being just a reactive cost center, which is how law departments always have been, just keep us out of trouble and we'll do what we need to do, to now that we have technology that can enable activities. We had eDiscovery, which kind of led the way for unbundling legal services and breaking them down.
Jason:
We have the ability to say, some of these things that the law department does are administrative in nature and if we can break those things down, now we can look at the legal department as a business unit, like other business units. We can look at a P&L. We can do metrics-driven or data-driven activities that help efficiency and drive down costs in the legal department. Because at the end of the day, if the GC wants to see at that executive table that's how they're going to have to operate the department. It's a little bit of a... I say a little bit, it's a lot of change for a profession that historically has been, at least in private practice, bill by the hour, we just need to people out of trouble, to now operating in a different model.
Jason:
And I think there's a whole bunch of things that have converged in that space and it started with cost containment and looking at outside counsel management from a legal department standpoint. You had eDiscovery come in where you started unbundling the things and saying, "This is legal. This is administrative." Or, "This can be done by people that are not licensed attorneys now." This law company concept is really taking on, which is you have the legal efforts, you have the business efforts, and you have them all under one roof. And I think that helps drive this legal operations. There's a boom in corporate legal departments hiring operations folks, and a lot of them are not lawyers.
Gary:
Mm-hmm (affirmative). Right.
Jason:
They're coming in with business backgrounds to drive the law department more as a business. And contract management is, like I said, it's at the epicenter of this because if there's one thing that the legal department does that is more like just regular business versus purely legal, it's contracting. It's also the thing that spans across the enterprise. And I think that kind of goes back to the original question, who owns this? Because legal's gotten more involved lately. And so legal comes in and says, "We've got a budget. We need to fix contracting," but it really goes beyond the walls of legal. So now you've got to involve sales and finance. Now it becomes enterprise-wide. It becomes a bigger thing.
Gary:
So, let's volley right back there. You actually led the way right back to the commercial side of the house. We talked about legal operations a little bit, and let's see how it comes full circle throughout the enterprise, as you just said. Let's talk a little bit about the stakeholders that are in the commercial end of it, and they're concerned about pricing and revenue, commission and delivery. What do you think that they're thinking about, their legal counterparts? How can they reach across the aisle, if you will, and work together as they're trying to understand what things are important to them while operating within those guardrails?
Jason:
Yeah. I think that's where... The question is, who do you ask to give? Who are you making the request of within the organization to say, "Give us a little bit." I think it's really both sides. So for the sales folks, obviously, you get all the way down to the salespeople. What's important to them? Commissions. And quick commissions, right? You move up a layer to sales management. What's important to them? Days sales outstanding. How quickly can we get to the closed deals? You go up to finance, well, how quickly can we recognize revenue? And when you get to legal, then it's kind of like, "Okay, keep us out of trouble. Keep us from having these issues related to contracts that go into litigation or disputes." You have to play to the stakeholders where they're at. You can't just come in and create this one-size-fits-all for everybody because everybody has different priorities and different perspectives.
Jason:
And that's why I really look at this and say, "There's a process element and the process kind of feeds into that speed and efficiency, which helps the sales side of the house." I'd say the left side of that contracting spectrum. Then you have the guardrails piece of it, which really helps the right side of it. One of the things that I did with a past client was actually take contract management data from their contracting system, because when we talk about the contract lifecycle, often we think about the time that a contract is requested and drafted, through the execution, the signature of that contract. Maybe we talk a little bit about post-obligation management, post-execution contracting services, but really, I think there's more of an extended lifecycle there because what if that contract goes wrong? Well, that's why lawyers were involved, right? Help us mitigate those risks if good things go wrong, or try to help us prevent the things from going wrong. But sometimes they just do.
Jason:
And that information then goes into a matter management system, which is pretty wholly, exclusively owned by legal. I don't think there's a lot of question as to who owns matter management, and that data from that contract, if it's in a dispute or litigation, may be going through that process. At the end of that, there may be a judgment. There may be a settlement. There may be some other things that go on related to executing that contract. And that information often doesn't make its way back into the contracting system, so those who are viewing it through the lens of the contracting system are missing that piece of it. Those that are viewing it just in the disputes and litigation side are missing the other side of things.
Jason:
We connected the data between contract management and matter management to give an even bigger extended view of that contract lifecycle, not just from request to signature, but all the way through disposition of a dispute or a case. One, that gave us a real total cost of ownership of that contract, because if we've got a million dollar judgment against us based on that contract, that's important to know how much that contract actually cost our company and now we're not just looking at commercial performance, we're looking at full performance, including the legal issues. But we also want to know what led to that. What were the root causes
Jason:
And that's the information contained in the legal side of things that if we can take that information and drive that back to the beginning of the commercial side of the contracting process, and we can build some guardrails, or at least some workflows and alerts that say, "Look, if we're headed down that same kind of path, let's put a stop and let's have some review, or let's prevent the same thing from happening." That's the thing with legal and trying to figure out the value of legal, because oftentimes the value of legal comes in the absence of the bad things happening, and it's really hard to measure that piece of it.
Gary:
So now we're talking about best practices, lessons learned in the formation of a playbook, right?
Jason:
Yeah. Yeah.
Gary:
So this is something that everyone will benefit from. So, in other words, if there's a lesson learned on the back-end and that is incorporated into the front-end from the commercial team, and they're able to make decisions based on approved language or approved clauses, then of course, again, after time, the circular motion, I should say, of the process over and over again, result in that playbook that has the least risk and hopefully drives the most revenue.
Jason:
Right. And that doesn't happen overnight. And I don't want to lead folks to believe that, "Hey, let's go do this and let's build this whole thing."
Gary:
Sure.
Jason:
What you start with is, let's address the immediate needs. And sometimes that's just, let's look at the process and figure that out. Let's put a system in place to then enforce some of the guardrails and maybe even create some of the self-service capabilities so that sales can come in and create the contracts, and they're going to work through a flow almost as if there was a lawyer looking over their shoulder during the process, because the system will allow them to do things and not allow them to do other things. They get through that process, and maybe they go all the way through and execute this contract without a lawyer having been involved in that day-to-day transaction. What you've done now is you freed up that lawyer's time to be doing more of the strategic work. And you've also put that lawyer on that deal by virtue of embedding the rules and the process around that sales process. And you've freed up that time, but you've created that world that they can live in that makes everybody happy.
Gary:
Jason, you've used the word unpack, which I'm a fan of because I'm a visual person and I just see all my clothes before I go on vacation and dealing with those articles as I should, so I'm going to try to unpack your mind, as an attorney. So I'm an attorney at an organization and I'm hearing a lot of different things out there. I'm hearing AI. I'm hearing contract lifecycle management. I'm hearing legal tech, legal operations, the business owners of legal operations that I may or may not have a relationship with today. So, what is the attorney in 2021 thinking about what's happening to legal operations that to your point has only been in existence a decade or a little more so?
Jason:
I think you kind of opened a very dangerous store when you start saying you want to unpack the lawyer's mind. And I think we have another eight hours to discuss this, right?
Gary:
Indeed. Yes, we do.
Jason:
So, there's a whole bunch of things happening, a whole bunch of sort of the perfect storm of things. And I feel like I've been fortunate to be standing right in the middle of all of them as they've converged, which makes this fun for me. So back in the late '90s when I was doing this, I realized technology was going to change the way lawyers were working and legal was a perfect breeding ground for technology in innovation because it's so rules-driven. And being rules-driven really allows you to code things to operate well in a software environment, automate certain things. Now, obviously, there's some folks that are taking that to the extreme, and frankly, there's a lot of people that are using the term AI today more from a marketing standpoint than a true development innovation standpoint.
Jason:
I equate it to back in the late '90s when we had my first start-up company, if you didn't have dot-com after your name, you weren't really a credible new innovative start-up. But we saw where that went, right? It quickly then became a, if you had dot-com, you weren't really credible anymore. And I think in that hype cycle, AI is starting to lose a little bit of its luster only because it's become more of a marketing term than anything else. But I will say that what's happening is, you have the technology piece with the machine learning natural language processing, you've got the algorithms, you've got all of these components that make up AI that are really advancing, and especially in the contracting space, that hadn't been there 10 years ago. They were in the eDiscovery space heavily, but the eDiscovery space was such a much bigger space that I don't think a lot of those vendors really wanted to dip into contracts because it seemed like table stakes.
Jason:
Now I think some of those vendors are probably kicking themselves they didn't get in earlier because contract management has really become the next big thing. Now, I will say, I was in-house counsel for a CLM company at one point, and back then CLM was not considered legal tech, and I've seen several people discussing that term lately as to whether it really applies to contract management. And I'll say, a few of the folks said they thought using the term legal tech for contract management was limiting. Contract management really is an enterprise application, but legal is starting to get involved more in taking some more ownership in it. So we have all of that happening. At the same time, we have contracts, contract lifecycle being unbundled into, here's the legal task, here's the commercial tasks, or the non-legal tasks.
Jason:
All of that is happening while at the same time, in the corporate world, how do we do more with less? How do we cut back some of the costs? How do we increase the efficiency? And so I think all of this is coming to play and you have in contracts again, activities where you look at it going, "Well, this could be a lawyer-led activity, or this could be a non-lawyer led activity. Maybe it's a commercial activity." So the contract management is at the epicenter of a broader circle of change that's happening within legal, and it's this perfect storm with technology advancing all of a sudden much faster than it has.
Jason:
And I think that's what we're seeing. There's a lot of confusion because people are like, "I feel like something's happening. I hope something's happening." Maybe other people are saying, "I hope this isn't changing because I'm afraid it's going to take my job." AI and technology is not going to replace lawyers, but, lawyers who leverage AI and technology will replace those who don't.
Gary:
Well said. That's a wonderful quote because, again, I think it puts things in perspective and it puts a concrete definition behind what this means to the industry. So I'm listening to this and listeners may be also wondering, "Okay, I know that the tricky answer is really, it depends who owns contracts anyway, and it depends on the organization," but it's more people than you think. I think that's the other takeaway. So, if I'm hearing all of that, where do I start in my organization to start to leverage some of the process improvement, the best practices, the technology? Is it a committee? Do I start interviewing people and getting their business pains? Is that a center of excellence? Where might I start internally at my organization?
Jason:
So the answer is, it depends.
Gary:
Like once again.
Jason:
And I say that sort of half jokingly, half serious.
Gary:
Sure, sure.
Jason:
It really depends because it depends on the maturity of the organization, the maturity of their existing contracting process. It depends on their risk tolerance, their culture. There's a lot of factors. And again, I will say, this is obviously coming from a biased position, but I would say find a neutral third party that can help you identify where to start. And a lot of people just say, "Well, I don't know where to start. Let me go look at a bunch of technology and let me pick one." And what's funny was, with this particular customer I was working with before, they had done that and they showed me their RFI that they sent out. And we opened it up, looked at all the vendor responses, and I said, "Quickly show me one where the vendor said no." And they started laughing.
Jason:
They realized, no, every answer was yes. And I said, "Yes, but when you start looking at these specific requirements and start looking at things like, does it have red lining capabilities?" That was one line. I said, "Well, they're all going to say yes. The question is, how do they do red lining capabilities? Is it a Word plugin? Is it a proprietary editor? Is it a web-based proprietary editor or something you have to download to your own system? Is there some other former factor?" And I said, "That's where you get into the nuance of the specifics and understanding, what exactly does the customer need in their world? Meet them where they are."
Jason:
And so when we start looking at this, I think where to start is, start looking at, where are you today? Now that requires looking over the fence at the neighbors. That requires looking over at sales, looking over at finance. So, instead of legal trying to own that as well, that's where I say, bring in a neutral third party and especially one like us that's done thousands of projects, implementations, system selections, all sorts of other managed services. And we can help be that general contractor so that we can come in and say, "Let's talk to the architect. Let's talk to the plumbers. Let's talk to the electricians and let's figure out what the strategy is." Come up with a combined strategy that we can help. And again, you said it earlier, let's let technology be the enabler. Let's not pick technology and let's not let that define what our process should be. Let's define the process first and let the technology enable it.
Jason:
But then we go to this center of excellence conversation, back to legal operations and center of excellence, it's back to the original, who owns this? And I think you can really benefit from a COE because this becomes the bridge. This becomes that center of thought leadership, the group that can establish and promote best practices, can consolidate similar functions. And it may be sort of the United Nations of your organization. The center of excellence can help you optimize by centralizing resources, identify reusable assets and reduce duplication of efforts in there. And that center of excellence can start at the very beginning because it can start as sort of a steering committee, if you will, of this cross-functional representation that will help you identify your requirements, both process and business requirements and technical requirements at the outset of the project itself.
Gary:
That's terrific. And I'd love to speak with practitioners. This has been a terrific information. Do you have any final thoughts for the audience in terms of, again, ownership of contracts? Or anything that we discussed about today that you'd like to retouch?
Jason:
Yeah, I think it's a matter of, if there was anything I would like to say, last week being Be Kind to Lawyers Day, I would leave it with that. Be kind to the lawyers. I do think the lawyers become sort of the beating post of the organization because they're often looked at in this serial process. Everything's done, now we've got to throw it over to legal. And now legal's going to stall this thing out and they're going to get stuck on this one minute term. The other thing I see legal doing is playing into that stereotype of this being a serial process, because I see when legal sometimes starts trying to take ownership of the contract lifecycle process, what they do is say, "Oh, we're going to streamline this. We're going to create some static templates, put it up on a SharePoint, and then we're going to tell you, salespeople, 'These are the templates you use. Only use these. Don't do anything with them. If you need to do anything different, then come to us'."
Jason:
Well, we know every single deal is going to end up different and every single deal is going to end up back in your lap. And so you haven't really advanced the ball that much. What ends up happening inevitably is sales then downloads those templates and then they start reusing the templates from their local drive even if legal might be updating the ones up on SharePoint. And so you end up with more broken process in the place. So I would say, don't look at this as a serial process where it's got to be one, then the next, then the next and the next. Get everybody together and plan this thing out together.
Gary:
As a lifelong sales person, I understand that legal's number one job is to protect the company so that I continue to have a job. So I'm very thankful that every organization I've worked for had attorneys that always handled everything with such professionalism and grace. It's a tough job, and we do appreciate that. So, I concur, Jason.
Jason:
And keep in mind, protecting the company doesn't just mean, sit back and try to avoid the bad things. In this day and age, in this competitive market, if we think of technology companies or hardware companies or companies making computers or mobile devices, they're looking to enter into new markets, and legal understanding the implications in getting involved, maybe it's getting involved in the design of the products, and maybe it's certain things that need to be done, understanding the geography and the rules and regulations of that market you're going into, it may be very much as strategic as the marketing or the sales team going in and determining, "Yes, this is a market we want to enter," or, "This is how we're going to enter the market." And I think moving legal up to that strategic thought process and that part of the strategy of the business is where we're headed. And I think that's what gives that competitive edge to the companies that are doing that.
Gary:
100% terrific thought, Jason. Well, we want to thank you very much for this conversation, and we'd love to have you back to unpack other topics.
Jason:
Thank you. Thank you. I really appreciate you guys taking the time today to do this.
Gary:
I enjoyed it. Thank you, Jason.
Jason:
Same. Thanks. Bye-bye.
