1. Presenters: Craig Owen White and Nikeshnan Pillay
BUILDING LAW FIRM CAPACITY TO SERVICE COMMERCIAL LAW TRANSACTIONS: WHAT LAW SCHOOL DID NOT TEACH YOU Presented by LEAD in co-sponsorship with ISLP and with the assistance of the Black Corporate and Commercial Attorneys Network (BCCAN)
Session: Commercial Transactions from the Perspective of the Business Lawyer
Presenters: Craig Owen White and Nikeshnan Pillay
Durban, October 27, 2014

2. Disclaimer
Nothing contained in this presentation is to be considered as the rendering of legal advice for specific cases, and attendees are responsible for obtaining such advice from their own legal counsel. This presentation is for educational and informational purposes only. The views of the presenter should not be construed as the views of the International Senior Lawyers Project, the Law Society of South Africa, the Black Corporate and Commercial Attorneys Network or their respective law firms.

3. Business Law

4. Business of Law

5. Business is all about Risk
Any factor, event, or occurrence that has the potential
to interfere with the desired outcome.

6. Business Attorney’s Role
Advocate
Counselor
Senior Business Advisor

7. Lawyer As Field General
Take Charge
Solid Game Strategy
Assessment of Strengths and Weaknesses
Client
Counterparties and their Counsel

8. Thinking About Risk Identify Quantify (Monetize) Rationalize
Responsibilities and Results
Identify
Quantify (Monetize)
Rationalize
Allocate Amongst Parties
Shift Among Parties or Others
Limit
Caps
Baskets
Hedge
Third Party Insurance
Set Asides
Ethics
Transparency
Cost of Commercial or Judicial Relief
Time Frame to Achieve Relief
Documentation
Evidence of Agreement
Legal Standards to Process and Support a Claim for Relief

9. Client’s Business and Strategic Goals
Need Capital and Labor to Execute Business Transaction to achieve an objective
MOM - My Own Money
O.P.M. –
Other People’s Money

10. Differing Perspectives
Buyer
Seller
Wants Goods or Services
Delivered at a specified time and place
At an agreed upon price
Goods or Services meet agreed specifications
Wants collateral or security if something goes wrong
Be paid the agreed-upon price
Wants to receive the payment in the form, at the time and place agreed upon
Wants to keep the money received

11. 5 Questions Your Client is (or Should Be) Thinking
What is the Upside of this Deal?
How Much Money Will I make?
Over What Period of Time?
When Will I Get the First Payment?
Will My Money Be Subject to Recall?
If so, For How Long?
If this deal is reported in the newspaper, how will I look?

12. 5 Questions Your Client is (or Should Be) Thinking
WHAT RISK WILL I ENCOUNTER
What risk will I encounter ?
Who are my counterparties?
What other parties have an interest in my deal?
Who must approve (or can stop or interfere with) my deal?
How much time will it take to complete my deal?
What are the factors in my control?
What are the factors that other’s control?
What factors are out of anyone’s control?

13. 5 Questions Your Client is (or Should Be) Thinking
How can I monitor my risks?
Active Flow of Information
Reasonable Allocation of Risk Among Counterparties
Circuit Breakers to Contain Loss
Caps and Baskets on Claims
Time Limitations on Claims
Third Party Coverage
Conflict Resolutions Procedures
Reliable Enforcement Procedures

14. 5 Questions Your Client is (or Should Be) Thinking
WHAT IS THE WORSE CASE SCENARIO ?
Risk Concerns
Monetary Loss
Damage to Brand/Image
Employee Safety
Regulatory Standing
Criminal Liability

15. 5 Questions Your Client is (or Should Be) Thinking
What is the cost of risk protection
What Risks Can Be Hedged with Third Parties?
What Risks Can Be Allocated to Counterparties?

16. Risk Gatekeepers Due Diligence Representations and Warranties
Indemnification
Covenants
Affirmative Covenants
Negative Covenants
Collateral/Surety
Goods
Funds
Insurance/Surety

17. Business Deal Norms and Etiquette
Collaborate When Possible
Assist Deal Parties When Practical
Demonstrate and Expect Forthrightness and Honesty
Meet Deadlines
Confess Mistakes and Oversights
Mark All Document Changes

18. Ngiyabonga