Commercial acumen for lawyers
As lawyers, we hear about the importance of being “commercial” – but what does it mean?
I know what commercial isn’t. When I was on an in-house legal team, if I needed specialist “can we do this tomorrow?” advice from our external lawyers on an issue worth, say, $50,000 to my employer, and the lawyer took two weeks and charged $20,000 to provide a long piece of writing weighing up all the various arguments and ending in a “maybe”…. Not helpful.
If your company is weighing up a merger and your legal team causes you to miss the boat because they are bogged down in technical risks that are, in practice, highly unlikely to eventuate – not commercial.
If you’re in the middle of trying to get to a property resolution with your ex-spouse and your lawyer keeps making ambit claims because they’re technically permissible, but in so doing blows up any remaining goodwill and ends up pushing you both further apart – not commercial.
If your legal team is known as “the department for the prevention of sales”, it’s probably not a great sign.
On the flipside, though, trying to make anything possible for your client is not your job as a lawyer and can end in serious tears. Your highest duty is of course to the Court, not to the person paying your salary.
Sometimes, you need to advise that the best answer is “no”, even if your client doesn’t want to hear it. But being a trusted adviser means saving that for when it’s truly needed. More often, it’s better to start with “how can we do this in an acceptable way” and get to “we can’t” only when needed.
Being commercial means holding that duty to the Court and taking it seriously, while also having an understanding of the broad context of what people are trying to achieve. If your family law client is interested in reaching a reasonable settlement, quickly, and still being able to get along with their ex, taking a scorched earth approach is the polar opposite of what’s required.
Instead, practice developing a very broad understanding of the interests and drivers at play from all parties. Legal compliance, profitability, time, relationships, saving face, power, peace and quiet, shaking things up, managing (≠ eliminating) risk, building trust… what else?
When you have a wide view of the elements at play, you can think as creatively as possible about options that will meet those needs at an acceptable level.
How to practice this? Secondments are a great option – I was fortunate to be seconded to a business early in my legal career and it made a huge difference. Work experience outside a law firm, staying up to date with what’s happening in your clients’ industries, asking questions…
What has worked for you? I’d love to hear your thoughts.
Until next week,
Take care of yourself and others
Madeleine
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