Practical Law

There is nothing more exciting for a lawyer than the first meeting on a new project.  Cynics would say that it’s all “downhill” from that point on, or “uphill” if you prefer the (more topical) cycling metaphor. But let’s stick with the positive. The enjoyment is twofold:

• The pleasure of winning or being entrusted with a new piece of work.
• A chance to start with a (relatively) blank piece of paper and come up with your most impressive, brilliant and (of course) wholly practical ideas.

But before we let the imagination run wild, there are a few slightly mundane things to deal with at the beginning of a project.

If you are going to be creative (or even eccentric), the best way to do it is to base your individuality on a solid structure. It has been said by many (especially those in the business) that the reason Danny Boyle’s opening ceremony for the London 2012 Olympics was so incredibly successful (and well received) was that its stunning creativity was presented in a practical way that was thoroughly planned and superbly well organised. Just like your projects!

So here is a selection of topics to consider for your first meeting.

What’s in a name?

What is the “given” name of the project for use in marketing, correspondence, documentation front-sheets etc?  Are there any sub-projects or related projects?  According to the Software Sustainability Institute:

“There is a tendency to use acronyms… which is a great way of compressing lengthy names. There is little point… in torturing the English language into an acronym just because you want to use a particular name. If you want to call your firework simulator BANG, there’s no need to say it stands for Big flAshy firework Noise Generator. Just call the project BANG… Remember also that acronyms need to be written as well as spoken, and the more torturous the acronym, the more likely it will be spelt incorrectly by users…”

What is the project?

You will also need a general description of the project for use in various communications and, importantly, in contract recitals. Bear in mind that recitals can be very useful (or dangerous) tools for interpreting a contract in the case of ambiguity in the operative text. There is even a concept of “estoppel by recital”, which can prevent parties to a contract from denying the truth of something stated in a recital, for example that they are an expert in a particular field.

A sophistication of this topic is to ascertain the project objectives.  Examples might include:

• Financial investment (for example, purchase, redevelopment, letting and resale of commercial property).
• New business or new venture (for example, construction of a factory for a new product line).
• Flagship project, such as a new concert hall.

Ask yourself:

• What would constitute a successful project as far as your client is concerned?
• What does the client consider to be the major risks (political, legal, technical and commercial) in relation to the project?

You will need to align the contract strategy to your client’s needs. For example, if the project is the construction of a new concert hall which is to be “the envy of the world”, it might not be too clever to issue a vague outline specification and engage the lowest bidder on a single design and build contract.

Project documents

Start thinking about project documents and how they are going to be created, completed, used and filed by all of the parties. Good organisation starts from the very beginning.

One of my friends recently decided to put a disk full of photos into a sensible structure where individual photos could be found easily. The problem is that there were over two thousand photos. The task of organising them was going to take too long so it was abandoned. The photos remain in a state suitable only for random browsing.

Although certain systems and structures will develop over the life of a project, you shouldn’t defer the organisational stuff to the point where it’s too late. And if you do end up having to think about electronic discovery there might be a mountain to climb. You might think that this could be an advantage in some instances, but my experience is that finding your own documents to resist a claim can be one of the biggest headaches in the dispute resolution process.

Who is your client?

External lawyers in particular need to know who they are acting for:

• Have you completed appropriate regulatory and compliance procedures including your own firm’s compliance/file opening procedures and conflict checks?
• Have you written a letter of engagement to the client?
• Do you need to expressly exclude advice on certain topics (for example, taxation)?
• Has the letter of engagement been agreed, signed and returned?
• Has a budget been agreed for your fees?
• Who at the client has the power to give instructions and what is the scope of their authority (for example) major strategic decisions, budgetary approval for your time/fees, day-to-day decisions?

In house lawyers should also consider the regulatory requirements that affect them.

What is the status of your client?

Will your client be the contracting entity? What is its legal and contracting status? For example:

• A limited company.
• A non-UK company.
• A partnership (whether as an LLP or a “traditional” partnership).
• A public sector body (and is it affected by EU public procurement requirements?).
• Is your client in a regulated industry or are there any restrictions on transactions? (For example, additional factors may affect trusts, charities or utility companies.)
• Who has the authority to execute documents on behalf of your client?
• Will the proposed project affect the assets, liabilities or business of other members of a group or other associated entities, shareholders, etc? Is there likely to be reorganisation (or similar process) in the future which could affect the answers to these questions? Could this be protected against by the use of the Third Party Rights Act 1999?
• Is there going to be a special purpose company (SPV) or other entity set up for the project?

Firm foundations

Although it may seem at times that having to consider topics of this nature before getting a project underway is like wading through treacle, I find that this initial due diligence will not only bring out useful information about your client and the project objectives, but it will help to get the creative juices flowing.