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What are the most important transactions and litigations that you have been involved in during the last two years?

The most important transaction I have been involved with during this period has been the comprehensive refinancing of EMGS [Electromagnetic Geoservices] which was completed in May 2018. This refinancing consisted of two elements; issuance of new equity under a US$12.5m rights issue with listed and tradeable subscription rights, and issuance of new debt in the form of a convertible bond issue. The proceeds from the US$32.5m convertible bond issue was used to refinance the company’s existing bond debt, including through a voluntary bond buy-back scheme. EMGS completed the rights issue and the convertible bond issue without assistance from external financial managers. Rather, a concentrated in-house project team consisting of both financial and legal resources was set up to manage and complete the refinancing.
   
In what ways do you see the in-house legal role evolving in your region over the next few years?

The in-house lawyer is increasingly expected to be a commercial advisor and manager in addition to providing legal counsel. Most companies recognise that operational and commercial decisions and planning needs to take into consideration the various legal considerations relevant to those decisions and plans. The best way to do so is not to ask their own counsel to provide advice on these legal considerations, and then make the decision without the lawyer in the room. Rather, the best way to make these decisions and plans, and be able to adjust them in a timely manner as new information becomes available, is to closely integrate legal competency in their management teams. Similarly, lawyers recognise that legal advice which does not properly take into consideration the various commercial aspects to a question, is of much less value to the business. Thus, the trend is that the in-house lawyer becomes more and more integrated with the general commercial and operational management of their companies.  

Do you have any effective techniques for getting the most out of external counsel, in terms of how to instruct them?

The basic rule for getting the most value out of external counsel, and keeping costs as low as possible, is to provide the absolute best starting point for the external counsel’s work. Good output requires good input. Remember to be as specific as possible in terms of what is required. Is the desired output a teleconference to discuss, for instance, an issue, a summary email or a full legal opinion? This has a significant impact on both cost and the required timeframe, and is therefore something which should be made clear from the start. When is the product needed; i.e. what deadlines will the external counsel need to keep in mind? How thorough do you need the external counsel to be? In most cases, what we need is a well thought through answer – not a perfectly researched one at double or triple the cost. Are there any particular commercial considerations to be taken into consideration, either industry specific or specific to your own company or this situation? Even if a general and well-known industry consideration seem obvious to yourself, you should not assume that it will be to the external legal counsel. Always make yourself available to external counsel if they need to discuss something or have any questions. A ten-minute telephone conversation to discuss an issue, clarify and provide input can save many, many hours of work for the external counsel and provide you with a better end product. If the end-user is not legally trained, make sure to clearly state that. Lawyers have a tendency to write for each other – both in terms of the references used and the language – and it easy to forget that this high level of precision often makes a product less understandable, and thus less useful, for other users. Make sure that you remember to give feedback; praise in public, correct in private. If external counsel fails to meet your expectations, there is a good chance that the problem, at least in part, lies with yourself.

Looking forward, what technological advancements do you feel will impact the role of in-house legal teams in the future the most?

It is difficult not to think that artificial intelligence is the technological development that will have the greatest impact going forward. The impressive result achieved by LawGeex AI in last years informal NDA review competition against a group of human lawyers shows that AI already has significant potential. However, history shows us that we have a tendency to be overly optimistic in terms of what new technology will be able to do – and how soon it will be able to do it. I am however reasonably optimistic that AI will, within the relatively near future, be able to assist legal professionals with mundane contract work, thereby freeing up time for more strategic and high value work.

What can law firms do to improve their services to the legal department?

There are, naturally, a number of things all law firms can work on to improve their services. It is my general perception however that most law firms are very much aware of this and have a continuous focus on improving. One key area worth highlighting is the importance of cost control and cost estimates. Unfortunately, some external lawyers seem to forget that for any business, cost estimates and budgets are a key management tool used in planning and operating the business. Cost overruns and unrealistic cost estimates severely impede a business’ ability to properly plan and manage its legal matters. Hence, cost estimates should never be based on material exclusions (unless the client fully understands the implications of this) and should always be well thought through and as accurate as possible. If there are material uncertainties, make sure the client understands these. Something which is routine to you – with all (known) uncertainties well identified – may be brand new to the in-house counsel instructing you.