The Role of Lawyers in a Changing World

In this episode, we explore how the role of lawyers is evolving in response to shifting market dynamics, technological disruption, and new contracting models. We examine how legal professionals are moving beyond traditional risk management toward becoming strategic partners in designing resilient, adaptive, and outcome-focused commercial relationships.

Transcript

SPEAKER_00 0:03

Well, hello everybody, and welcome to The Leading Edge, a series which offers in-depth insights into the key challenges, innovations, and evolving dynamics of the contract and commerce landscape. I'm your host, Nikki Mackay, Chief Development Officer of the Commerce and Contract Management Institute. So in today's episode, The Role of Lawyers in a Changing World, I am joined by our very own Tim Cummins, Executive Director of the Commerce and Contract Management Institute, and Sharon Zachariah, founder of Innovation Law. Now that we we know that for decades, contracts have primarily served as tools of protection, focused on allocating risk, enforcing compliance, and defining remedies when things go wrong. But the commercial environment is, of course, changing very rapidly today. Organizations are navigating volatile supply chains, accelerating technological change, and of course geopolitical uncertainty, increasing collaborative, outcome-based delivery models. At the same time, artificial intelligence is beginning to really transform not only how contracts are drafted, but also how they function and support decision making. So together, these shifts are really redefining both the purpose of contracts and the role of the legal profession. So in this conversation, we'll explore whether lawyers are equipped for this expanding role, why legal teams are becoming increasingly central to commercial decision making, and what really must evolve for legal professionals to remain effective in a more complex, fast-moving, and technology-driven world. So Sharon and Tim are here to guide us through this evolving landscape. Welcome Sharon and Tim to the leading edge. Thanks. Hello. So let's dive in right away. Contracts have traditionally been built around anticipating failure, allocating risk, and defining remedies when things go wrong. As contracting undergoes this structural shift, what do you think organizations should really be optimizing instead?

SPEAKER_01 2:42

Thank you, Nikki. Yes, well, you've you've summarized in a way the problem, as you'd say, um, legal training is very much predicated on the past, understandably. It is based around case law, uh, and case law is, of course, focused on things that went wrong. So we do have this challenge that the um legal profession's focus tends to be on avoiding the pitfalls in that way. Now, that is of course an entirely legitimate activity that they need to undertake. It uh is of paramount importance, but it is only one component, because of course organizations get into contract with counterparties uh in order to deliver successful outcomes. And what we're looking at here very often is a legal input to the process. Why is that today a little problematic? A lot of it is because, again, the nature of what we need to be protecting against has changed. We're seeing, you know, a dynamic world where obviously the influence of artificial intelligence, the challenge of cybersecurity, but also just the broad geopolitical uncertainty we operate in, are not things that are easily identified or accommodated in traditional contracting. So I suppose our big call here is that as we begin to think about commercial capability and commercial competence, which is so critical for a business, what exactly is the role that the lawyers should be playing in that? Are they simply a legal advisor, in which case they need to accelerate that advice because business can't wait, change is too rapid, or do they have an opportunity, indeed, an imperative, to think more broadly about their wrong? But in that case, they really do need to take on a much wider appreciation of the features of true commercial thinking.

SPEAKER_00 4:59

Yeah, so interesting. What are your thoughts, Sharon? Are uh a lawyer simply a legal advisor, or is this a big opportunity for them to rethink things?

SPEAKER_02 5:11

Well, uh, lawyers are quite often employees. And in that situation, it's uh in brief, and I'll explain why, it's very much the tone from the top that matters. Now, personally, I'm a very practical sort of lawyer. I've always got involved in what's actually going on, but quite often those who really progress in legal careers are those who uh display uh a conservative phase of compliance. They have um the word used to be gravitas, and it's very interesting because when you try to put your finger on what that is, it quite often turns out to be perhaps a demographic rather than an actual um display of um being close to the business and driving outcomes. So let me explain. When a board hires general counsel, quite often they're looking for someone who will look right, who the shareholders will think of, ah, this is someone to whom we can uh on whom we can rely for the right display of characteristics, which could be, let's say, in the image of the board itself. And what we get, therefore, is a lot of people thinking in a similar manner, and that is about this group think issue is a problem with all businesses because to the extent a culture is uncomfortable with friendly um discussion on how best to solve a problem, because we must always all agree, people will be hiring people who always agree, and therefore problems will be missed and issues will uh slip off uh the radar because we're all looking the same way, and when we do that, I mean, if I hired people like me, I would not be best placed to run my business. So literally the the same discomfort that we have to have with working with different people, we have to have a tolerance of discomfort in order to learn and improve and deliver those outcomes. So um, in back to in brief, leadership picks the lawyer. There are all sorts of lawyers because lawyers are all sorts of people. They've been trained in all sorts of different ways. And if the leadership picks a lawyer who's a risk professional, really, and I have been that as well as held many other hats at the same time, um it is it is possible that it would be continuing in the vein of uh, as you've said, risk compliance and remedies when things go wrong. There are other ways to deal uh with the legal function of an organization.

SPEAKER_00 8:29

That's a fascinating perspective. Tim, what are your thoughts? Do you do you have a response to that?

SPEAKER_01 8:36

Well, I think the uh the the big thing for me, and and I do go back to the point, uh Sharon, I absolutely appreciate, of course, we're talking about a very diverse group of personalities here and variation, how individuals will see their role and how, as you rightly say, they will be positioned by the executive team. But having said that, I think we have to acknowledge the core point I made, which says certainly from a law school perspective, we are still, generally speaking, generating uh lawyers who are naturally, when it comes to their commercial law type training, being based around uh the past. I think the critical point here and the key question the legal profession has to ask itself is this one of to what degree do we want to facilitate business utilizing our legal wisdom, our legal knowledge as a backdrop to uh a broader commercial enablement role. Now, let me explain a little bit more what I mean. Two aspects to this. One, as I've touched on, businesses have to move at greater speed. We are in a world that demands tremendous adaptability. Um, that is because we're operating in an environment of real and very dynamic uncertainty. So one option there, of course, is to batten down the hatches, say, oh my goodness, all of this is really risky. Let's put even more clauses into our 1500-page agreement, um, which, by the way, nobody can read and understand. Um, and you know, let's add in a few more reviews and approvals just to make sure that we're not making bad decisions. Now, that might have been an old school way of thinking, but quite clearly in today's environment, it isn't a sustainable way of thinking. So, what is what is the different way? Well, it very much is one of beginning to appreciate that many of those traditional contract clauses are not really particularly helpful. They tend to become quite adversarial. Our focus for negotiation tends to be driven by old school thinking of risk allocation and battles over liabilities and indemnities, etc., etc., which is a real turn off, by the way, to the rest of the business because they just can't understand why it takes so long. And of course, when it takes so long, it puts the business at risk because dynamic change is so important. So, what does that mean for the lawyer? Well, it doesn't mean that liabilities and demonities, etc., are not important, but it means we need to perhaps come at those conversations with a very different attitude. The legal profession needs to recognize that actually we should be thinking about not risk allocation but true risk management. When we look at the things that typically go wrong, they're not going wrong because of liability and indemnity clauses. They're going wrong very often because actually our contract doesn't have practical mechanisms for the management of change. Now, many lawyers would step back and say, well, hold on a minute, but what you're talking then about things like price changes or perhaps termination rights or um governance standards, governance procedures, change management clauses. Um they're not they're not us. That's the business. Well, yes, except that lawyers still tend to insist that they've got a stranglehold over the content of the contract. So, you know, I think a lot of this is are you are you are you standing with both feet in the water, or have you got one foot in and one foot out? Um this is very much about the extent of business engagement that the future legal professional needs to undertake. And a final quick point AI, of course, is also dramatically changing this, not only from the point of view of the way that lawyers do their work, but more importantly, the quality and extent of information that is going to start becoming so much more available, you know, based on much more rapid, ready analysis of where are the things that have gone wrong, uh the ability to look across contract portfolio and understand the uh repetitive issues or the positive aspects? So the quality of commercial intelligence is beginning to dramatically change. Again, are lawyers going to grasp that opportunity or will it be somebody else?

SPEAKER_00 13:51

It remains to be seen. Did you want to add something, Sharon? Yes, I did.

SPEAKER_02 13:56

Um will lawyers grasp the opportunity? I think you know, because of where I've been in organizations, I feel I feel the pain of the lawyer not being allowed to grasp the opportunity simply because they have been put there as a sentry, and the the lawyers who who do the most traditional job are the ones who get the furthest in their profession. Let me give you an example. I joined quite a big organization at one stage and was handed a half-done contract started by another lawyer. Um and I looked at it and I just couldn't understand what they'd been doing. Now I thought of myself as quite a wizzy lawyer, and I thought I should get it. And I kept reading and I thought, I have no clue what they want. And um, because this was a software contract and the end user license agreement had been removed, surgically deleted, but all references to it maintained. I didn't see how this was going to work in practice with references to something that no longer existed, and it just made my head hurt. So finally, I despaired and I rang the procurement team. Now, this would have and should have been my absolute first port of court. But I was new in the organization, I was trying to fall in with what they wanted to do, and their organization was led by the legal profession. But the reason I got on so well with the procurement teams is because I would ring them and say, What are you trying to achieve here? And they said, Well, we're buying this, it should do that. I'm like, So you'll need that EUR, will you? And they said, Oh, yes, absolutely. And and so on. In each case, from then on, I just rang the person whose contract I was dealing with, spoke to them, got things sorted. And that was how I actually was trained. But many others have not, as Tim properly says, been trained that way. And even if you do train that way, will organizations then be receptive to that? Because I'm not sure they realize the value of that contract that is going to work because it's physically going to just give 10 years or more of a constructive relationship because of the collaboration between teams that actually makes the deal work. But because it works and nothing breaks down, it's one of those wins that no one ever sees. You know, the thing is, if you do it right, it's invisible, it's like a seam that just uh, you know, nobody ever feels because it's been sewn so well. But the tendency is for legal teams to look important by dominating a process. And I can understand why people don't want to let that go. That's how they build their careers, that's how they build a position in the organization, that's how everyone looks up to them. And uh I find it difficult because I always prefer to be collaborative than to look more important. Um and yet I do I do understand why people do it. It's not necessarily for the greater good, but it is definitely irrationale that you can't you can't lose sight of. People need to build their careers, their families are depending on them for their lifestyles, and so you know, they're doing things for a reason, but they might not be the best reason for the organization. And the way the organization can therefore be more successful is by rewarding outcomes, by rewarding outcomes rather than important behavior, and that's not to this day what they do, I don't think.

SPEAKER_01 18:02

I do think uh a particularly interesting aspect of that, and I agree with all you've said there, Sharon, but uh precisely, I guess, because of that status, that professional respect that the legal team tends to have, actually puts it in a position of um, if you like, real privilege, but also perhaps real um uh responsibility to um challenge some of those sacred cows. Um, you know, I think my observation of uh uh of a legal department is that very often if they're not the instigator of change, they can certainly prevent it. That, you know, if somebody out in the business says, hey, couldn't we simplify this contract? If legal pick that up, they can make that happen. If on the other hand they say nope, then it really doesn't matter what the person out in the business is saying, uh, they're gonna find it really difficult to get past that legal um position. Uh so I think as we look at the environment that we've been describing here, we do see this need for the responsible lawyer to really step back and say, actually, the way we're doing stuff today, is it still appropriate to the world we live in? Do we really need the language? Do we really need the complexity of structure? Do we do we need the reviews and approvals? In fact, are we adding value by this frequent negotiation of the same clause day in, day out? Um, do we need to change the agenda and recognize the critical role that legal entity plays in setting that agenda? And we do see some exciting examples of that. I mean, you know, the legal team at the Shell, the legal team at Rolls-Royce, um, you know, particularly, I think, Europe and Asia, less so at the moment, the US, where we've got big legal teams that are really saying, yeah, we do need to go for fundamental contract simplification, contract design. Um, we need to turn contracts into uh artifacts that are useful to the business that are not designed simply for, you know, other lawyers or a courtroom. Because most of them, you know, the vast, vast, vast majority are never going to see a courtroom. So designing for that purpose makes very little sense. And it is so energizing when you do see these legal teams, and you, you know, I suppose in other exposition covering so many organizations, I just get so enthused by what some of the leading legal, um, in-house legal, and to some extent law firms are now stepping up and advocating. Um, I just wish it went faster and that it was more general, and of course, that it really became much more of a component of legal education and training, because I think the future lawyer needs to be a master or mistress of change.

SPEAKER_02 21:26

Yes, I think that it is it is the place, uh, the correct place for that is in training. However, I've an interesting background, having started my career mostly in-house, I and spending 11 years in-house before leading private practice teams. And I found uh that in private practice, quite often uh corporate lawyers will moonlight as commercial lawyers. This is not a moonlighting profession, but again, it's a status thing. Corporate has higher status. Everybody reaches for that. Then they get a commercial contract and they wing it, honestly. And that is one reason you're only looking at the things they've been educated in. Because they have understood liability, they have understood indemnities. On the other hand, when you're drafting for practical use, you can design for court in a simple way. You can simply cap liability, make your indemnities clear, you do not need that level of complicated wording. Because what you then create is a set of litigation processes before the main litigation on what exactly the clauses mean. And I'm not even joking. So you start off litigating over the content of the contract before you even thought about what the other party's done wrong. What I would do and what I train people to do is work out how it's going to work in practice. As I've said before, and yes, you can train lawyers for that. And I was fortunate to be trained in-house in working closely with the business and saying, but what's the risk? Are we covering risks that don't exist? Or can we minimize our input by doing XYZ? And that training has stood me in really good stead. But it's not a high status training. It is in-house in a recruitment company. And other people are coming out of the big city law firms, and they've got the letters, you know, they've got that training behind their name. And therefore, that is elevated, and yet the other contracts function better. So I think absolutely training for lawyers is essential, but training in law firms is not going to offer that because most law firm lawyers have never been in-house. I did a very unusual thing by doing the route backwards because it usually goes private practice in-house, and I did it the other way around. So I could see what was missing and bring that to the law firm lawyers. But otherwise, who's going to train them in that way? They learn from other private practice lawyers, and it's a very different ball game. Once you're in practice, it's also very difficult to step away and get the knowledge you need. I completely agree, Tim, with what's needed. I just don't think it's necessarily the lawyer's fault, because we are put in a position where A, private practice lawyers are not given that training. Corporate law is privileged above commercial law. So commercial became becomes an also ran where you get thrown into it if you don't get anything else, bad plan. And um additionally, um, when you're in-house, the status is again accorded to the those people who know how to play the status game rather than roll their sleeves up and join in with their colleagues, might be different if Rolls-Royce and Shell and the people you're mentioning have a different tone from the top. Because those people who've moved through businesses by actually rolling their sleeves up appreciate that uh that approach of let's get a doer, let's get somebody who wants to understand what exactly is going on. So those sorts of lawyers do exist, but do they rise to the top? Perhaps not. Perhaps they and then again the tone from the top continues in the risk management compliance, but not getting involved in what's physically going on. Um, so I think it's a structural and organizational problem. Those lawyers exist, but they're not making it to the point where they get to set the agenda.

SPEAKER_00 25:48

It's we've covered a lot of ground here, Sharon Tim. It's been fascinating to hear your perspectives. Um, you know, from one um perspective, you you talked at the beginning, Sharon, about employing people who simply think the same way or who are risk controllers. And Tim, you've talked about, you know, the lawyer of the future really becoming a master or mistress of of change. How I guess I'd like to sort of close up with a word towards the lawyers. We've we've said organizational change, yes, but a word to the lawyers because it's it's a it's a challenging environment with an old way of thinking and a very dynamic change coming in with AI. So, what I I guess my final question to both of you is what would you say to the lawyers to become more adaptive in this new world and potentially in this role as commercial integrator? Sharon?

SPEAKER_02 26:51

Um, what I'd say to the lawyers is it's it is really more fun if you get involved. Uh, we're often trained uh to look at the contractual uh main body of the contract and then leave the schedules to um to the business. Um I I can't manage to do that because I feel if I haven't read the entire contract, I could be missing something huge, and it is true. I would have. I mean, there are very simple problems like um dates in a project that simply don't work. There are things that are meant to be done before other things that in real life have to happen first. So they are not legal problems, they're structural problems that could explode the whole contract. So I would say to people, get involved properly and you know, understand what's going on. It's a whole lot more fun. Um, but I'm not sure that I'd be giving them the right career advice. That would be the right outcome-based advice. But career-wise, I'm not sure I'd be doing them any favors.

SPEAKER_00 27:58

Yeah. So rolling up your sleeves is a lot more fun than keeping them slightly covered. Absolutely. Tim, what are your thoughts?

SPEAKER_01 28:08

Yeah, well, I Sharon, sadly, I think you were probably at least in the current environment, right? Uh but of course, many lawyers um do spread their wings and expand out and actually become um much more, I suppose, business people than purely lawyers. And so often that may mean that they finish up going on a somewhat different career trajectory, including, of course, the number of great examples where you know general counsel have become the CEO. So uh clearly there are opportunities, but it should say they may not always be constrained within the field of law. Um I I think my final comment, really, Nikki, would be that uh preventism, as we call it, preventing bad things from happening is of course of critical importance, and I do not want to diminish it. But what I would say is that the scale of change and speed of change today does make it incumbent on anybody in that role to step back and consider what exactly is it that I am seeking to prevent? Because if we focus too much on a lot of these traditional ways of thinking, um, then that focus can in itself actually be very damaging to the business interest. Uh today, if going back to my only point, if you know speed of decision making is critical, um then ponderous debates over traditional um risk avoidance terms is not going to be helpful to the business. While that debate is going on, opportunities are missed, cost piles up, delays are pillar, and you know, so much of our research is demonstrating the critical role that good contracting plays, and the contract is just a part of that process. I think my plea to the legal fraternity would be particularly to start thinking about their role in the business context that Sharon has outlined, engage closely, recognize that counsel is needed, but at the same time it needs to be delivered in uh a full understanding of the impact it has in that broader uh organizational context. So again, back to Sharon's point, become a much more embedded part of the business rather than just a law team.

SPEAKER_00 30:56

Thank you, Tim. It's a brave new world out there for um lawyers and uh and of course the the Commerce and Contract Management Institute. Um, Tim, you just touched on a lot of our research. We currently have our most negotiated terms global study live, which is a really fascinating uh piece of research that will come out later in the year. So we very much encourage everyone to get involved and give us their input. Um, but I'm afraid uh we could talk about this all day, but it's all we have time for, um, unfortunately. Um, today's discussion really has highlighted how the role of lawyers is evolving alongside this rapidly changing commercial landscape. And we know that as contracts become uh more dynamic, technology driven, and central to business strategy, legal professionals are being challenged to think beyond traditional risk management and to take more of a role in shaping commercial outcomes. So the future of the profession will not be defined solely by legal expertise, but by that ability we've discussed today to combine legal judgment with commercial awareness, adaptability, and really that cross-functional collaboration. So thank you for joining us. We look forward to welcoming you to our next episode of The Leading Edge. Thank you, Sharon and Tim, for joining me today. And thanks everyone for listening. If you liked what you heard, uh join us again for our next episode where we'll continue to explore the ideas, innovations, and leadership shifts shaping the future of commerce and contracting. But until then, keep challenging, keep adapting, and keep leading.