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Contracts Operate: We should think of Sisyphus as innovating
Craig Conte |
July 11, 2023 |

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Eight ways to improve legal and compliance risk management

Traditional outsourcing can be like pushing a boulder up a hill, but can’t we do better?

For those of you who may not remember your high school literature assignments as much, Sisyphus was a king who for various hubristic reasons was punished in the afterlife to push a boulder up a hill only to watch it roll back down the hill and then he was forced to recommence pushing it up the hill again in a never-ending act of futility. As a junior lawyer in “Big Law” in New York many moons ago, Sisyphus takes on patron Saint status. Meaningless and/or repetitive activities kept me (and way too many others) gainfully employed back then and sadly I think many still are trapped in this Sisyphean cycle.

This is especially apparent when companies look at outsourcing or shared services around contracting activities. Often times the thought process is: (1) we have a lot of ever-increasing contracting work to do coupled with tightening budgets; (2) let’s use centres – internal or externally – that offer better cost coverage; therefore (3) let’s move that work there. Outside of maybe using a joined-up tech stack, the activities and teams are just mirrors of each other. But this is really just changing one Sisyphus for another. The boulder remains.

In Albert Camus’ 1942 philosophical essay “The Myth of Sisyphus”, Camus dives deeper into the absurdity and the need to find meaning in the meaningless activity of repeatedly rolling a boulder up a hill for eternity. Not to spoil an eighty-one-year-old essay, but in accepting his fate and the absurdity of it, in the end he surmises that, “one must imagine Sisyphus happy.” Now as a way to handle the difficulties of modern life or handle the ridiculousness of a senior associate asking you do redo a due diligence report based upon his preference for 20% shading in a table (true story), that conclusion can be appealing and helpful. As a conclusion for a pragmatic way to handle the massive volume of work hitting legal/contracting teams (the boulder), this isn’t very useful and this approach has led many to concluding, “why outsource, nothing changes.” This double tiered aspect of existential dread, commonly known as the junior law firm lawyer experience, is real and has led to some stagnation in the industry in spots. This is why I want us to not think of Sisyphus as a happy but innovating. If you had eternity, wouldn’t you want to make the boulder lighter, install some track, get a pulley system – something right?

So, what does this innovating Sisyphus look like in a new type of outsourcing or offshoring? Glad you asked.

Fix the machine upfront

As I mentioned before, a lot of legal teams just create mirror teams in other locations and think that’s fine. But guess what – if contracts take a long time because there are too many approvals, old templates and lack of clear process for escalations it doesn’t matter if they are delivered out of country X, Y or Z. An old car doesn’t get faster by putting it in a new country. The best practice I’ve seen is to clean these things up before getting into a new environment. If your team that has been at your company forever has trouble navigating the process in country, how do you think a team that is somewhere else will fair?

Don’t just collect data – use it

If you look hard and get past all the current excitement, you’ll still see a few hundred blogs and posts about data. We’ve all seen the pictures or heard the slogans. “Data is the new oil,” is my favourite. What I think everyone forgets is two key things:

  • Not all data is useful; and
  • Collecting data for graphs is fun, but using it is better.

George Clooney appeared in 17 episodes of The Facts of Life from 1985-1987. Interesting data, right? However, absent an incredibly specific pub quiz, this information is absolutely useless (no offense to the Mrs Garrett fans in the audience). But time and time again you see this in contracting. I’ll give you a real-life example – I once worked with a company that – prior to my involvement – was collecting 200 items of metadata per contract. It was amazing. What was worse was that they had some of their team inputting this data or asking the business to do it as well. They somehow had crowdsourced Sisyphean suffering. I love contracts, but I can tell you that for BAU contracting it very rare to find more than 35 pieces of actionable information in more contracts.

This leads me to the second bullet on pretty graphs. With all that “data”, you could have interesting graphs but this doesn’t deliver any value if there is no clear action plan and next steps taken. If 80% of the time the company accepts these 5 carveouts for limitation of liability, why not just start there? If most of the time you end up at net 45 on payments, why not just start there? If exec X takes twice as long to approve something, then maybe talk to him or her, remove them from the equation or do something. This is data applied. Telling me that the boulder is heavy is interesting. Helping me make it lighter is useful.

Tech-enable that boulder

This should be a no-brainer in 2023, but sadly not. A lot of companies are sadly still using email and folder systems for intake, negotiation, approvals, doc repository and beyond. Now – nothing inherently wrong with that as it is better than paper and pencil. However, with 400+ contracts/legaltech tools on the market and available at a plethora of price points, there are options out there. A simple “front-door” to allow for faster allocation of work has a real impact. A basic workflow that captures approvals and spurs the next approver (and please make it mobile ready) is so much faster and cuts down on contracting times while creating the allusive “audit trail” your risk team always wants is really helpful and not expensive. Of course, a full CLM or intuitive authoring tool is fantastic (if you know how to use it), but there are lots of other steps you can do to make the boulder go up faster.

As you can see above, there are many ways to make the boulder smaller, faster or just easier to move. You may not have eternity like good old Sisyphus, but you can operate and innovate better. Your team and business will thank you.

Author: Craig Conte

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