Dealmaking is not something that people learn in the classroom. It’s something you learn on the job. What was your first experience with transactions?
My first exposure, which taught me a lot, was being a very junior lawyer invited to shadow a client in a deal negotiation. I was sitting there thinking, But you know what you want, and they know what they want. So why don’t we just stop with all this meeting time and get down to it, start trading the numbers and trading the term sheets? The answer was that you can’t do it like that. You need to build relationships, build understanding, and show some respect for the other person’s perspective and point of view. You need to cross the table in the first meeting, and inhabit the other side’s perspective, their concerns and fears and worries.
That’s not to say it’s not adversarial, it is, but you have to get to a space where you can agree to something. That won’t happen unless you cross the table, understand what’s going on, and try and encourage them to understand you. If we sit down and immediately start arm-wrestling and the person who is strongest wins, it’s not productive — the long-term deal relationship will be fractious, the renewal will be fraught. The immediate arm-wrestle approach might work in one percent of situations but it’s rare.
“You need to be out in the community building a reputation for yourself, so that when you come into the room, people already have a view of who you are and what you are.”
So would you say that empathy is an important part of effective negotiation?
Yes, I would say empathy and an open mind. You can’t get someone to agree with you until you start working out what it is they’re truly bothered by. Every now and then you’re going to come across someone who’s just being completely unreasonable and difficult. That’s when you need people like me to help you sue them.
There’s a lot of rhetoric at the moment, particularly at the regulator level, about the excessive time and money spent in litigation. I don’t think that is correct — from my perspective as an adviser and a litigator there is very little actual time and cost being spent in litigation compared to the volume and value of deals that get signed without ever needing anyone like me involved. As a community we need to remember that, and be aware that we’re doing really well. The negotiators deserve more praise than they receive!
Did you have any mentors along the way who helped show you the ropes and taught you key lessons?
There was a partner when I started as a baby lawyer who was just amazing. She was so clever, so bright, so focused, one of the highest remunerated partners in my firm and became a managing partner. But she never forgot that everyone’s human, no matter who you are, no matter what you’re doing. Whether you were in a less well-remunerated position, or you were at the top of the tree, she was equally interested in everyone and recognized that everyone is worried about something. Everyone still likes praise, to have a laugh and be seen for who they are whether they are your boss, your team member, your client, the person on the other side of the case or deal. She helped me get rid of stereotypes based on position and understand that we’re all just trying our best.
“In terms of reaching an equitable solution, sometimes that can be done evidentially and with logic but often it is a case of persistence, repetition, and also bringing something creative.”
What’s the hardest part of the dealmaking process?
People who aren’t in the room. People who are set back somewhere issuing diktats around, “We won’t go below X. You should tell them where to go. They aren’t getting the better of us,” and other such unhelpful absolutist statements. Ten to one they’re not in the room. Getting to them or putting in place sufficient interference in the messaging is the hardest part.
Are there particular sectors or spaces where you find that is more prevalent?
No, I think it’s personality-driven. It’s where somebody has a preconceived vision of who they are, what they achieve. It’s almost like they can’t let go of this vision which has been crafted somewhere else. It’s not to do with this deal, these numbers, these patent assets, this commercial situation, the current economic trading conditions. It’s something they carry with them.
Do you have any advice on reaching a resolution efficiently and equitably?
You need to be out in the community building a reputation for yourself, so that when you come into the room, people already have a view of who you are and what you are, whether your word is reliable, whether you’re a reasonable person, whether you are respectful, and whether you command respect. Your wider reputation carries a great deal of weight before you’ve got anywhere near that table.
And let’s take the second half of that question, the equitable factor. Can you offer any guidance for reaching a fair resolution?
Don’t beat yourself up, because sometimes a resolution is not possible. That doesn’t mean you failed, it means that there’s something going on that you just can’t impact. That’s either someone outside the room pulling the strings — it doesn’t matter what you do, they’ve got too much control over the situation — or you’re dealing with someone else’s self-image, and that’s not something that you can unpack. If you’re in those situations, you’re really not going to get anywhere. Recognize when you’re hitting those blank walls and take other action.
In terms of reaching an equitable solution, sometimes that can be done evidentially and with logic but often it is a case of persistence, repetition, and also bringing something creative. What can you do to meet other concerns that they might have? There must be other items that can go into this deal just sitting around the edges of it which will help people sign without feeling that they have lost face. So, remain creative.
All of that is on the other side of the table. What are the challenges with your own client?
None! My clients are all delightful. What can help as an outside adviser is bringing an objective view informed by other experiences outside of the client relationship. It behooves outside advisers to take responsibility for keeping the objective facts in mind about what can actually be achieved. We also need to take responsibility for clarifying with the client their strategic objectives and checking in on those objectives on a regular basis. We need to do our damages modeling, our outcomes modeling early, and sit down with the decision-makers and the budget holder and say, “Hey, these are the parameters of reasonably possible objective outcomes. And these are the parameters for the budget and the time and the stress for you in getting involved in this. Does this work for you? Does it align with your strategy?”
Come back to that conversation at regular points as the case progresses. You’ve got to help your client keep a realistic goal in mind and check that the strategy remains relevant to the business.
What makes you good at the craft of IP litigation? What about your personality or experience have shaped your success in the field?
Two things: curiosity and my team. I’m acutely aware of and so grateful for the privilege of being permitted to be involved in other people’s businesses, and to meet these innovative and creative people who are developing new inventions, developing new technologies, building businesses, negotiating deals. What I love about my job is the opportunity to keep learning and meeting people who are driving the world forward. When you like your job, and it excites you and it gives you that satisfaction, you try really hard for your clients — you want them to succeed because in helping them to do so it repays, in some part, the privilege they’ve granted you.
I am also incredibly fortunate in the team I have around me back at base, at Gowling. I look at my team and think You people are incredible! We’ve got not just talent, but interested hungry people, and I don’t mean hungry in a sort of corporate-y way. They are driven to learn, they want to know about the world, they want our family of clients to succeed, and they all have different interests and things to bring. The team is also intensely likeable. So for me, it’s curiosity and my team that drives the love for the job and the will to win for our clients.