"Understand the why behind the what" — Interview with Foster Sayers

how i contract interview Sep 20, 2023

We have had the great pleasure to interview Foster Sayers, VP of Legal Operations at symplr and featured columnist at Contract Nerds.

This interview is part of the How I Contract interview series with experienced contract lawyers and professionals which aims to become a source of inspiration, support, and advice for new lawyers and professionals.

Dive in!

Foster, thank you for doing this interview! Let’s start by getting to know you a little bit more. Can you tell us a story about what brought you to this specific career path? How did you start working with contracts?

My career in contracts started with a cold email.

I was in Tokyo, Japan for the spring semester of my 2L year, which prevented me from attending on-campus interviews.

I noticed that Corporate Counsel for Mainline Information Systems was attending to interview candidates for an internship and that he had previously had an assignment in-house with Lucent Technologies in Singapore.

So, I sent him a cold email playing up the East Asia connection.

It worked.

He was more interested in someone who was ambitious enough to study abroad in law school than any of the candidates he’d met in person.

I got the internship and began my career in contracts reviewing terms and conditions in many RFPs and drafting compliance statements.

By the end of the summer, I had an offer to join the company full-time as a staff attorney.

What do you like about contracts? Why?

What I like about contracts is that they are rooted in creating mutual value as opposed to being inherently adversarial like so many other areas of legal practice.

Although certainly, negotiations can feel adversarial depending on your counterparty.

But I take a collaborative approach to contracting and find it to be an enjoyable exercise more often than not.

What is the most irritating thing about contracts? Why?

The most irritating thing about contracts is managing the collateral documents like exhibits, schedules, addenda, etc.

One reason is that it can often be members of the respective business teams who are not experienced contract drafters who are proposing changes to the collateral contract documents.

This then requires the additional lift to review documents for not only substance but also consistency — something that becomes more time-consuming with each additional document.

What should your first 30-day plan look like when you start working with contracts?

Plan to read a lot and to listen a lot.

If you’re just starting out your contract work, look at the templates that your client uses.

If you don’t have templates to start with, then read contracts that are currently in force.

Read those in place with your client’s largest customers.

Read as many as you can.

The more you read the more familiar the format and structure that your client uses will become.

Read your templates and take notes on ANYTHING that you don’t understand or would like more explanation on.

Then find out who among your internal business partners and stakeholders can best answer your questions or explain further.

While it’s great to watch product videos and learn about your business through the materials they offer, it’s no substitute for talking through contract questions directly with the business.

It’s because understanding your own template fully is foundational to negotiating it with a counterparty.

It makes a huge difference in a negotiation when you can explain to your counterparty why language is drafted a certain way, versus insisting it’s a standard or asserting that others accept it.

The more you position yourself to tell the story of the “why” behind the terms and conditions in your template, the better you’ll negotiate.

That’s where you want to get to in your first 30 days.

How did you learn contracts? Could you share specific steps you took and learning resources you used? What learning mistakes did you make along the way?

During my first in-house internship, I was trained by a contract manager on the team. I used her playbook to review every contract.

My early mistakes were following the playbook without taking into consideration the greater context. Specifically, I was taking exception to terms that given the size and nature of the customer the business was willing to agree to.

Learning those nuances and risk tolerances had to take place outside of the playbook

What is the biggest challenge you had to overcome when learning contracts? How did you do it?

The biggest challenge was learning the nuances and risk tolerances of the business and how those impacted the use of the playbook.

I overcame that challenge by being extremely curious and always asking why we agreed to something or would not in another case.

What mistakes should contract lawyers and professionals avoid when working with contracts? If you have a story to share, please do :)

I would suggest you avoid dogmatically using a playbook.

That’s bound to cause you to make a mistake when the reality of the deal just does not match the assumptions a playbook was drafted around.

The mistake I alluded to above was when I proposed all sorts of changes to the standard terms and conditions of a governmental entity.

Fortunately, I was still an intern and my work was being reviewed.
We submitted the bid without my proposed changes.

While the bid did allow you to propose changes, the business was accustomed to taking on risk in government contracts and so it would have created an unnecessary disadvantage.

That's why I caution against making the mistake of being too devoted to your playbooks.

What should you do after you make a mistake in a contract? Could you give an example of a specific wording you would use to inform others about that mistake?

If you make a mistake during drafting, just inform your counterparty as soon as you determine the mistake has been made.

It’s best to call and have a friendly conversation.
But you’ll have to memorialize it in writing at some point.

You can say, “Hi So-and-so, regrettably I made a mistake in the last draft so I wanted to reach out right away upon learning of it.”

The more promptly the mistake is owned and addressed, the easier it is to move past.

Hopefully you catch all mistakes before the contract is executed.

However, if the contract is already executed, the main difference is that you have more steps to take and will need something else to be signed.

Before you reach out to the counterparty, you’ll need to make a mea culpa to your internal business partners.

If the mistake is material and must be addressed, then in these cases you should draft the amendment or other document you’ll use to correct the mistake in advance.

It's much easier to deliver the news about a mistake when it’s done concurrently with everything needed to correct it.

So if it’s after execution, you’re reaching out with, “Hi So-and-so, regrettably I made a mistake in the executed draft. I have already drafted an amendment to address what needs to be corrected but I wanted to reach out and explain before sending it over.”

What is your #1 contract management tip? Why?

Use a contract management system and ensure that it stores documents in a relational way, e.g. Master Terms are stored with or with links to subordinate contracts.

I recommend this because it’s rare when you’re pulling a contract that you won’t need to understand the greater context of your commercial relationship and need to look at other contracts in place between the parties to address the present concern.

What is the one burning question you had when you started working with contracts and how would you answer it now?

When I started working with contracts, I noticed that every agreement I worked on started as a template. And every new template was created from a prior one.

So, I wondered why doesn’t anyone draft contracts from scratch.

I would answer it now that it’s simply the nature of contracts.

It takes too much time to start from scratch.

Further, attorneys are wired to follow precedent and reluctant to reinvent the wheel or to try something new.

While it’s the nature of things, it doesn’t prevent you from being creative with the improvements that you make to the existing contract frameworks that you encounter.

If you could give just one contract tip, what would that be?

Understand the why behind the what.

Successfully negotiating contracts is not about knowing what terms your client wants or what terms the counterparty wants.

It’s about knowing why the parties are asking for what they’re asking for.

So if Company A wants to de-identify Company B’s data on its platform and Company B says we don’t want that in the contract, you’ll only overcome their objection by understanding why.

So, if Company B says they’re concerned about data confidentiality and privacy, you’ll take that reason and propose adding language that states that the right to de-identify Company B’s data is subject to the obligations of confidentiality and must be de-identified in accordance with applicable regulations.

Otherwise, you’re left making specious arguments like, “Our other customers agree to this.”

What mistakes should you avoid in contract negotiation?

Avoid deleting section numbers when you’re agreeing to delete a numbered clause in the contract.

Instead, replace the deleted language with, “Intentionally Deleted” or “Intentionally Omitted” after the section number.

Renumbered sections create the extra work of updating references and it’s hard to avoid missing them.

Using the suggested placeholder text will avoid any mistakes related to incorrect section references.

What are you most proud of in your contracts journey?

At a prior post (Vertafore), I successfully automated some of the contract work and the result was a 50% [growth] in contracting velocity at the company.

I removed the legal bottleneck for routine commercial contract language by partnering with SalesOps and was recognized as Business Partner of the Year for my efforts.

What is the biggest myth about contracts you’d like to debunk? Why?

One of the biggest myths I’ve encountered is that contracts are a zero sum game.

I encounter too many attorneys and contract professionals who negotiate the contract like there’s a score being kept.

But it’s not what contracts are about.

You’re creating something of value for each party.

It’s far better to focus on a fair allocation of risk and drafting reasonable performance obligations than to keep tracking how many times you get your way on a revision.

Contracts are the codification of a relationship and that relationship begins with the executed contract.

A pleasant and productive contract negotiation sets a great tone for the ongoing relationship.

How can you know you are great at contracts? What makes one a great contracts lawyer or professional?

You know you’re great at contracts when you’re getting deals done in an acceptable form with efficiency.

Acceptable to the business is the standard and when you redline to that standard, not to the standard of whatever you can think to revise, you satisfy the business and you do so quickly.

Being a great contracts lawyer or professional means you both know what you have to negotiate on a particular contract and have the strategic and tactical skills to get the terms into the desired form quickly.

What advice would you give to your younger self when you started working with contracts?

Stay curious!

Could you share the biggest lesson you’ve learned while working with contracts?

The business decides how much risk they want to accept.

No one in the business cares how much you minimize the risk in a deal if it doesn’t close as was forecasted.

Don’t negotiate for things unless you’re sure the business wants you to.

Who are your contract mentors you are grateful to? Why?

My first mentor, Mikki Cooper, was a contracts manager and she taught me how to review commercial contracts. Her detailed playbook gave me the perfect roadmap to learn contracts.

I’m grateful to her for giving me a really strong foundation on key commercial contract terms that I have built my career on.

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

I would like someone to ask me what superpower I would like to have. I would answer the ability to time-travel.

What is your favorite work of art depicting lawyers and/or contracts, if any? Why?

If any…

Who do you think we should interview next? Why?

Laura Jeffords Greenberg. She’s experimenting a lot with ChatGPT and is a friend.

Thank you, Foster!

P.S. Foster will be speaking at ContractsCon 2024, the biggest practical contract training event of the year! Click here to learn more.