How I Contract Interview with Marlene EisenbergOct 26, 2022
“How I Contract” is a series of interviews with lawyers and professionals sharing their tips and stories on contract drafting and negotiation.
In this interview, Marlene Eisenberg, founder of Strategic GC, and former Senior Counsel at HP, shares her advice to everyone interested in working on contracts as a career, as well as gives her tips on dealing with difficult counterparties. Having been in the profession since the 1980s, she also elaborates on the biggest misconceptions other lawyers and professionals have about working with contracts.
Marlene Eisenberg will teach an in-person workshop "Your Counterparty Breached. Now What?" at ContractsCon in February 2023 in Miami.
Did you learn contract drafting in law school?
No, I did not learn how to draft contracts in law school decades ago. I taught “legal writing” in law school. The curriculum was to improve basic English drafting with clear and persuasive writing. Important, but not like writing contracts.
How did you learn to draft contracts?
I was fortunate to learn how to draft contracts with partner lawyers in an elite law firm. They took the time to review every single document I drafted and they red-lined the heck out of my early efforts. And this happened over several years. I adopted the habit to read carefully and edit. I was very lucky. I don’t know if many law firms still devote years to this.
Do you remember any significant events or lessons you learned in the early days of learning how to draft contracts?
Early positive lessons include creating and using Defined Terms to simplify understanding. Early negative lessons include being made to feel stupid for asking “why” red lines were made.
Who was the mentor that taught you the most about real-world contract drafting and negotiating?
Early mentors were in my law firm. Once I went in-house, I was the mentor for lawyers, professionals, sales, executives, and more. Haha!
How did you view negotiating when you were starting out?
When I started, my negotiation tactics mimicked what I saw, which was a style not authentic to me. I tried copying the loud, demanding, and inflexible approach I saw most men use. It is not effective long term since it was not authentic for me.
What do you enjoy the most about working with contracts?
What I enjoy most about contracts now is helping businesses establish risk tolerance and policies. I also enjoy training teams and reviewing work prepared by less experienced peeps. I can quickly identify and adjust key risk areas.
What frustrates you the most about working with contracts?
Sometimes what I enjoy least is that contract review takes time and is often isolating. I do wish we had more standardized contracts like the real estate profession does for some frequently used contracts. More balanced SaaS perhaps?
What is the biggest misconception other lawyers and professionals have about working with contracts?
As to the biggest misconceptions, I’d say that not all provisions in a contract require review by a lawyer or professional. Most business people are trained to some extent in writing, yet very few are willing to even skim a contract for business terms. (I spend a lot of time on this to make the business and legal teams more efficient.).
What advice do you have for someone interested in working on contracts as a career?
Seek out mentors to review your work. Read books on contracts and follow How to Contract and other helpful LinkedIn content.
What advice do you have for dealing with difficult counterparties?
1. If the issue is a rude/obnoxious party, first calm yourself. Pause, reflect, then proceed. Don’t take anything personally and if you find yourself becoming agitated, take a break for at least 30 minutes. 2. If the issue is inflexibility, “soothe the child, then reason”. Look for what you have in common first (soothe), then explain your logic. If that doesn’t work, then perhaps use the sales/engineering/another expert team to move the issue.
What advice do you have for managing the stress and work demands that come with working on contracts?
Stress. Wow, we have better tools and approaches more easily available now than when I started out. Find healthy outlets, like exercise, meditation, yoga, etc. I have a lot to say about this. And learn to say “No” by describing the “bigger Yes”.