Dr. Christian Kessel’s Post

Are legal articles in reputable legal periodicals a good and EFFECTIVE Business Development tool? Many of my coachees and many attendees of Business Development seminars I give always enthusiastically propose writing an article with lots of footnotes on a very high academic standard for legal periodicals of good or great reputation. I am always doubtful that that will have any major effects on their business development and actually tend to discourage them from it. Why ? Because the majority my own many publications didn’t have much effect.And chances are this won’t be different with your articles (On the one noticeable exception please see last week’s post) The big question really is: who will ever read your learned article? And will someone read it and even instruct you on account of it? Or will it at least help in your Business Development efforts? Like in pitches? Of the approximately 30 articles that I have authored alone or co-authored with a colleague, (i) only 1 has led to instructions (on retention of title/Romalpa- clauses under English law during my years in London in the early 90s); (ii) 3 articles on how to arrive at individually negotiated clauses in the German law on General Terms and Conditions made it into the preeminent commentary on the German Civil Code( Palandt) which was/is nice, but did not generate fees: (iii) And 1 article on the legal requirements for a successful application for an interlocutory injunction for the continuous supply of serial products in the automotive industry when a delivery stoppage was threatened or instigated was the perfect addition to any pitch and helped the reputation because it was the first and only article dealing with this particular subject matter ( See last week’s post) All other articles and contributions had no noticeable effect at all. There are 2 exceptions where I would even recommend writing such a learned piece: 1) Where you find a real GAP in publications and are able to write from real practical experience on a legally complex and dogmatically challenging topic of HIGH PRACTICAL RELEVANCE no one else has written about at all or at least in depth with real experiences as a practitioner ( and thus unlike a lecturer or professor of law). The article mentioned above at (iii) was such an example. The opposite example would be the 10th publication on the 13 ways of drafting and negotiating an earn-out clause. 2) Where there is an entirely new legal field or legal/ regulatory development and your pre-eminent task is THOUGHT LEADERSHIP on the interpretation of the new rules, regulations,statutory provisions or new case law. Where everybody starts from scratch in the legal industry, like with the AI Act in Europe right now . Have you written learned articles on account of which you were instructed on new pieces of work? Please share your experiences with writing such pieces in the comments

Skills, competence, capability or whatever we call to add value to our profession. Try exploring Peter Connor’s thoughtful idea about the T-Shaped lawyer and how it could make a positive change in your career. We have not read his book but worth exploring.

Limitless possibilities for lawyers. What are you capable of? - Part 3. Phase 3 of letting go as a lawyer and uncovering what you might be capable of, is to remember relevant components of your training. In other words, don’t throw the baby out with the bathwater. Having said in my first 2 posts* on this topic that it is best to completely let go, it is worth noting that your conservative professional training can play a continuing role in this transformative process. Case in point (yet again) - me! One of the more difficult challenges for me in book 1 in my legal thriller series, the story and characters for which I literally developed on the run, was to keep track of who was who in the zoo. I dealt with this in book 1 by laboriously checking and rechecking the earlier parts of the novel to ensure consistency of characters, plots and subplots. I perfected this (at least for me) in writing book 2, by drawing on my organisational skills and knowledge as a lawyer and completing a comprehensive character matrix as I progressed the story. Each time I wrote about a character (whether existing or newly introduced) I added the page reference and details of key descriptions and roles to the character matrix. This was a game changer in the process, and it added a little order (albeit retrospectively) to an otherwise ad hoc process. The other key attribute I had developed as a lawyer that I found to be invaluable in the creative process was discipline. This manifested itself in a multitude of ways, including importantly in the commitment I made to myself to write every day while developing the novels. I am aware of other authors who exhort this approach. This made it so much easier to continue the journey alongside the characters. Instead of having to catch up on the latest in the story every time I recommenced writing, which for me would have been akin to homework, I was able to get straight into it as soon as I opened my laptop. Here again, I found the comprehensive character matrix invaluable. My suggestion then is not to completely abandon your skills as a lawyer when you embark on the kinds of journeys I have been discussing, but rather immerse yourself completely in the process and allow the instinctive redeployment of your innate skills as a lawyer to assist with the process. *Here are links to my 2 earlier posts on this topic Part 1 - https://lnkd.in/gSnZrDhN Part 2 - https://lnkd.in/gJGgei58 Website - https://www.rodbesley.com/

I've recently finished Ciarán Fenton's new book "The Modern In-house Lawyer". This book covers so much that an in-house legal leader needs to think about - as he sums up so well - "you need to know yourself - what you need, not just what you want; you need to know how to sell yourself and your ideas; you need to know how organisations work and how to work with others in them. You need to know how to lead and to follow; how to find and secure a role and when and how to leave it. Finally, you need to know how not to work, and how to take care of you and yours." There is so much to unpack from the book and lots of practical tools, but for me two things which I'm still thinking about are: - the benefits businesses could gain from understanding their legal function better; and - the struggle of many lawyers with the conflict between the need to take care of themselves and their need to excel at work, with which, as Ciaran says, their identity is so entwined. I often wonder if the lack of maturity in metrics measuring the value and quality of a legal function still holds back many businesses true understanding of what they are buying and who they choose to lead the function. I also still today get complimented by the phrase "she's not like a lawyer" - what does that say about our profession's brand and should I reject that compliment? As much as I hate generalisations, I smiled when I read this in the book "First, by dint of their training as self-reliant individual practitioners, lawyers are not always easily led or always good at leading, are not necessarily good team players, and can put on a strong and sometimes unhelpful emphasis on being the brightest person in the room." I think this isn't true for a large number of excellent lawyers and a next generation of outstanding GCs coming through the system, but I think most in-house lawyers would probably recognise at least part of this statement in the cultures of the firms and teams they've come through!

Before signing an agreement or contract a review of the document can ensure that the correct relationship is being entered into by the parties and that your interests are being protected. Having a lawyer review your legal documents provides the following benefits: 🧿 Ensures your interests are protected.  Whether you draft the document or it is another party’s document, whenever there is a modification or negotiation, a lawyer can provide insight and inform you of any potential risks. 💸 Saves future costs.   Investing in document review prior to signing a document eliminates the likelihood of unexpected costs and expenses. 🎯 Ensures accuracy and compliance.  A lawyer will assist you in navigating legal requirements and establishing language to accurately reflect the relationship being created and the associated terms and conditions. ⚖️ Provides a legal perspective.  A legal professional is up to date on industry best practices, customs, and the law. A lawyer can provide you with advice to assist you in making informed decisions. 🤝 Acts as a legal representative.  Beyond the document review, a lawyer can assist with negotiation and strategy. 💯 Mitigates risks and ensures document validity.  A lawyer can issue spot and advise on whether an agreement or contract is valid and legally binding. Misasi Legal provides document review services. This allows you to focus on your business while we focus on the paperwork. To speak with a lawyer, book a free consultation with Erika Misasi at the following link https://lnkd.in/e39mDWN2. #MisasiLegal #DocumentReview #AgreementsandContracts #BestPractices #LegalServices #Canada #Ontario #Toronto #Lawyer #LawFirm 

PLAIN ENGLISH DRAFTING September has rolled around again, and it is back to school. Reviewing the last year, I note that I have drafted rather a lot of contracts: conditional fee agreements, collective conditonal fee agreements, damages based agreements, litigation management agreements and litigation funding agreements amongst them. My plan for the coming year, is to focus on improving the “Plain English” quotient of the documents I anticipate being asked to produce. I have written about “Plain English” before. Plain English is a style of writing that is clear, concise, and free of jargon, enabling readers to easily understand the content without specialized knowledge. In legal contexts, Plain English involves using straightforward language to explain legal obligations, rights, and procedures, making the content accessible to non-experts. The goal is to remove ambiguity, reduce the complexity of legal texts, and ensure that all parties clearly understand the terms to which they are agreeing. The benefits of drafting legal documents, or indeed any documents, in Plain English are obvious: Accessibility: Plain English makes legal documents understandable to a wider audience, including clients who may not have a legal background. This accessibility is crucial in fostering trust and transparency between legal professionals and their clients. Clarity: Ambiguous language can lead to misinterpretation, disputes, and litigation. By drafting in Plain English, legal professionals can minimize these risks, ensuring that the terms are clear and unambiguous. Efficiency: When documents are easy to read and understand, they save time for both the drafter and the reader. Clients can quickly grasp the essential points without needing extensive explanations, which streamlines the legal process. Compliance: Some jurisdictions encourage or even require the use of Plain English in consumer contracts. Complying with these guidelines can prevent legal challenges and regulatory penalties. Client Satisfaction: Clients are more likely to be satisfied with legal services when they understand what they are agreeing to. This understanding can enhance the client-lawyer relationship and reduce the likelihood of disputes arising from misunderstandings. Link to article in the comments.

# How Lawyers Think: A Structured Approach ## 1. Issue Spotting - Identify all potential legal issues in a situation - Look beyond the obvious to find underlying legal questions - Consider multiple areas of law that might apply - Break complex situations into discrete legal components ## 2. Fact Analysis - Gather all relevant facts - Distinguish between: - Material facts (legally significant) - Immaterial facts (contextual but not legally decisive) - Unknown facts that need investigation - Consider credibility and sources of evidence - Document everything meticulously ## 3. Legal Research & Analysis - Research applicable: - Statutes and regulations - Case law precedents - Legal principles and doctrines - Analyze how laws apply to specific facts - Consider jurisdiction-specific variations - Look for splits in authority ## 4. Counter-Analysis - Anticipate opposing arguments - Identify weaknesses in your position - Consider alternative interpretations - Prepare responses to potential challenges ## 5. Risk Assessment - Evaluate probability of different outcomes - Consider: - Strength of legal arguments - Quality of evidence - Procedural barriers - Cost-benefit analysis - Client's goals and risk tolerance ## 6. Strategic Thinking - Develop multiple approaches to achieve client goals - Consider: - Legal remedies - Negotiation strategies - Alternative dispute resolution - Business solutions - Plan several steps ahead ## 7. Ethical Considerations - Maintain professional responsibility - Consider: - Duties to client - Duties to court - Conflicts of interest - Ethical boundaries - Balance zealous advocacy with ethical constraints ## 8. Communication - Translate complex legal concepts for clients - Present clear, logical arguments - Support conclusions with evidence and authority - Provide practical recommendations ## 9. Documentation - Keep detailed records - Write clearly and precisely - Avoid ambiguity - Prepare for potential future review ## 10. Continuous Learning - Stay current on legal developments - Learn from experience - Adapt strategies based on outcomes - Seek mentorship and guidance

CONTRACT REVIEW📑 • Most essential skill as a contract lawyer where you are given the initial drafts of a contract and you are required to review it and suggest changes according to you client’s needs.👩💼 •Remember that while suggesting changes in a draft you need to keep in mind that what your client desires because after all it is the client’s purpose and objectives that matters to you.📄 •To start with the review you need to gather all the information about the negotiations between the parties regarding the contract and for that you need to ask those essential questions from your client.📊 •Analyse the draft ,watchout for the specific legal and linguistic changes that would affect your client’s interests.👨⚖️ •In case of reviewing contract where parties belong to US , try figuring out the governing laws and territorial jurisdictions because all 50 states in the US can have different laws regarding different subjects.🇺🇸 •Try to explain your client about the importance of Confidential information and Selecting the appropriate mode of dispute resolution.📑 •In order to suggest changes MS word has the reviewing mode where you can redline the contracts and Google Docs also provides you the same service through suggesting mode. Google docs is more preferable due to the feature of multiple edits in the same document and all the changes made earlier are also stored.📈 •Keep in mind that while reviewinga contract you need to examine each and every essential clause of the contract that can affect your client’s business at a later stage. . . . #law #contractdrafting #contractreview #UScontract #paralegal Rashmi Natekar Priyanka Sinnarkar

8 Tips for Preparing Commercial Agreements This year, I’ll be 10 years at the Nigerian Bar. While that’s exciting (yippee!), I’ve been ruminating on what capacity I have built over the years and I’d like to share some of the things I’ve learnt. Below are some tips which I've picked up along the way and which I keep in mind as I prepare complex contracts. 👉 Do the research: Read law reports and textbooks on the laws relevant to that agreement, BEFORE you start drafting. Listen in court and learn what the courts will and won’t enforce from rulings and judgments, then let that knowledge guide your future drafts. 👉 Train your brain to think: Use your spare time wisely. Play games, solve puzzles and engage in other activities that challenge your brain to solve problems. Exercise. 👉 Don’t be afraid to start from scratch: There might not always be a template for you to work with. Embrace the opportunity to build one. 👉 Ask clients lots of questions, then ask some more: You can’t fix everything or shore up every potential hole with legalese. Sometimes, the thing that is giving you a headache just requires more information from the client. 👉 Ask a trusted colleague or mentor for a review: There are many brilliant minds in the legal profession and their insight will make your draft better. 👉 Never forget the bigger picture: Many commercial agreements are primarily about making more money for your client. Try to foresee any potential future threats to the client’s pockets and eliminate them. 👉 Look to the future: Closely related to the last tip, remember that no matter how friendly your client(s) and their business partner(s) may be when entering into an agreement, conflict and unforeseen occurrences can always arise in business. Prepare the best possible safeguards for the client. 👉 Just start: Sometimes, the amount of time and work that a particular draft requires, might seem overwhelming but even if you have a lot of time left and especially then, just start working on it. Thereafter, while you are engaged in other activities, your brain will churn out interesting ideas on how to make the draft better. These are some of my tips. What about you? If you have any tips you'd like to share, please comment them. #CommercialLaw #LegalWriting  

Our sixth lecture at CHAMAN LAW FIRM was indeed educative as we learnt on Case Analysis Here's a summary of the session on Case Analysis and Legal Strategy: Objectives: 1. Understand the importance of case analysis in legal work 2. Learn the key steps in analyzing a case (identify facts, spot issues, find relevant laws, apply law to facts, consider both sides, draw conclusions) 3. Develop skills in formulating legal strategies (set clear goals, identify approaches, weigh pros and cons, consider ethics, plan for outcomes, allocate resources) 4. Apply concepts to a real-life scenario through a case study Case Analysis: - Definition: Systematic examination of a legal case - Involves: thorough reading, organizing information, identifying key elements, connecting the dots Importance: - Helps understand the full picture of a legal situation - Enables spotting important facts and issues - Allows predicting possible outcomes and preparing accordingly - Leads to stronger arguments in court or negotiations - Foundation for giving sound advice to clients Legal Strategy: - Plan how to win for your client - Consider goals, approaches, pros and cons, ethics, outcomes, and resource allocation *Real-Life Scenario:* - Apply concepts to a real case study - Develop critical thinking, problem-solving, and teamwork skills - Gain hands-on experience and confidence in legal analysis and strategy. #ChamanLawFirm