"My approach these days is less “chicken little” and more “wise hen" — How I Contract Interview with Brooke Achua

We have had the great pleasure to interview Brooke Achua, Principal Attorney and Founder at Achua Law, General Counsel at Bear Givers.

This interview is part of the How I Contract interview series designed to offer various perspectives from experienced lawyers and contract professionals on what works in contracts in the real world.

Before you dive in, let us share this super kind note from Brooke: "At the outset, sincerest thanks to the How to Contract team for this opportunity to reflect. Lessons, memories, and insights can get lost amidst the daily grind of our demanding profession. I'm appreciative of How to Contract's initiative to create this space of shared wisdom."

And now let's dive in! 

What was your biggest challenge when you started working with contracts? If you could go back in time, but keep all the knowledge and experience you have now, how would you deal with it?

My biggest challenge when I started working with contracts later became my unique advantage, which is that I came from a litigation background, specifically, business litigation and consumer protection litigation.

This meant that I initially approached contracts with a more risk-averse lens, having seen all the ways that contracts (whether B2B or B2C), when left to a court to interpret, can lead to disastrous, expensive results. 

I unnecessarily over-scrutinized many drafting choices in an attempt to neutralize every potential risk.

I wanted my contract language to be ironclad, which is, of course, not possible.

My approach was very much, “The sky is falling.” 

The reality, as I later learned with more contract drafting experience, is that the myriad of perceived risks must be tethered to the likelihood of materialization and aligned with the company’s unique risk tolerance.

Litigators get heat from transactional attorneys when we enter the contract drafting and negotiation space (and rightfully so!) because it can be frustrating to see company operations, progress, and growth needlessly hampered due to improbable risks.

My approach these days is less “chicken little” and more “wise hen.”

I’m more agile, think strategically, and prioritize understanding the business objectives. I still rely on my litigation background for those instances when a more risk-averse perspective is justified.

Do you have any contract disaster stories from your career or someone else’s career that you’ve learned from? What did you learn?

One difficult counterparty comes to mind as an example of how not to be an effective legal partner to your business or to its partners.

We were negotiating non-compete language in a service agreement.

The language was restrictive, overbroad, and not tailored to the potential risks. I knew it would never be upheld by a NY court.

I explained this to the counterparty.

He agreed, promised to waive the language in exchange for stronger confidentiality and non-solicitation provisions, and said he’d get back to me after discussing it with internal stakeholders.

When I received his redlines, I was surprised to find not only did the non-compete language remain, but it was also amended to be even more restrictive, requiring a prior notice provision.

Despite previously collaborative negotiations, I was stonewalled and told the counterparty would not waive the provision (contrary to earlier representations). My company ultimately accepted the agreement, understanding that if the non-compete provision were to ever be enforced, it would be futile.

If I could instill in my younger self three takeaways from this contract disaster story, I’d say:

(1) Be absolutely sure that you have the authority to make certain representations on behalf of your client/company before you make them to the counterparty. It’s perfectly okay to say, “Let me check with my team on that and get back to you.” You destroy trust with your counterparty and your company when you fail to do so.

(2) Without compromising internal corporate strategy or other confidential information, if you can provide a rationale for your contract redline, do. I believe transparent communication is the foundation for drafting balanced contracts that present fewer risks in the long run. Failing to provide justification for your position forecloses the opportunity for both parties to find creative and mutually beneficial solutions.

(3) Pick your battles. In agreeing to the non-compete provision, we preserved the deal, which was more important to us. Moreover, knowing the law very well helped us realize that our risk exposure was basically non-existent.

What’s your biggest lesson learned in contracts?

Don’t just take the stakeholder’s word for it.

Sometimes, a stakeholder will give you approval to take on more risk or liability with a contract.

Initially, you may think this is good news that will make your job easier and close the deal faster.

That’s not always the case. It may be the case that a stakeholder is agreeing to more risk than they are aware of.

One of the biggest lessons I’ve learned in contracts is to learn how to respectfully probe, push back, and present more context so that the stakeholder is fully informed of the risks they approve.

If you could share just one practical, real-life contract tip, what would that be?

Take the time to understand what your leverage is.

Sometimes, it’s obvious, but other times, particularly when you feel you don’t have much leverage, it could be invisible to you because you’ve been “in it” too long to realize what’s valuable to the other side.

Get creative, brainstorm, and put yourself in your counterparty’s shoes.

What mistakes should contract lawyers and professionals avoid when working with contracts? How would you avoid them?

Not sending substantive comments within the document itself.

It’s a pet peeve of mine when I’ve made the effort to draft thoughtful explanatory comments, and the counterparty responds with disorganized responses to some, but not all, comments.

Address the comments methodically, and if you have no comments or accept, then clear the comment bubble or indicate as much.

Leaving comments open-ended makes for inefficient negotiation cycles. 

What’s one of the easiest ways to screw up a contract?

This one I learned from Laura Frederick and the How to Contract team and I’ve never looked back: Using both numerals and written out numbers, e.g., twelve (12).

It’s unnecessary, tedious, and you run the risk of changing one and not the other during negotiations.

Pick one and stick to it throughout your contract.

Are there any simple hacks our readers can use right away to improve their contract drafting and negotiation skills?

I think this depends on what stage of your contracts journey you are on.

If you are a baby contract professional, start by reading any and all contracts: terms of service and terms of use, rental leases, gym waivers, privacy policies, order forms, etc.

Basically, read the fine print that you’ve been used to skipping over all of your life.

Exposure to a variety of contract terms, contract subjects, industry terms, and standards, is a good starting point.

Many companies provide these contracts on their websites.

The SEC EDGAR filings are also a great resource for publicly traded company contracts. 

If you’re a bit more advanced in your contracts career, I recommend listening to podcasts, reading articles, and attending trainings that pick apart and analyze contracts. How To Contract is the obvious choice!

I cannot speak highly enough of how transformative ContractsCon 2023 was for me and I can’t wait for 2025.

It’s one thing to get familiar with contract terminology, common formats, and provisions.

It’s another thing to scrutinize those terms alongside a seasoned contracts professional to learn whether they are effective or not, and why.  

What interview question would you like to be asked and how would you answer it?

What is your most memorable contract “win”?

When I was about 7 or 8 years old, I drafted a “contract” complete with Crayola signatures, milestone payments in the form of Little Debbie treats, and even a butterfly sticker or two (for authentication purposes).

In exchange for completing my chores on time for a week straight, I negotiated the ultimate reward of a Barbie doll from my dad.

I remember putting great care into that contract, treating the procurement of his signature with the utmost sincerity.

I had such a feeling of pride when I was able to point to the dubiously legally binding terms at the end of my performance period and redeem my Barbie.

Alternatively: When/how does your imposter syndrome show up in your work with contracts and how do you overcome it?

Who should we interview next? Why?

Amanda Godlewski, a Senior Corporate Counsel in the consumer packaged goods space.

We met at ContractsCon 2023 and she’s been a mentor and sounding board for me ever since.

Amanda is a first-generation Latina attorney, a talented business partner, and a contracts pro.

She also devotes a significant amount of her time to supporting women of color to build their businesses and achieve economic equity through her organization, Mija Learns.

Thank you very much, Brooke!

Want to learn more about how other experienced lawyers and professionals excel at contracts in the real world? Check out these interviews.