Pub. 14 2019-2020 Issue 3

WWW.NEBANKERS.ORG 14 Counselor’s Corner — continued from page 13 ready to weigh in on things as needed). Counsel defending his or her client’s standard contract mostly has one job—to mini- mize changes. Counsel seeking changes may be smarter, more experienced and extraordinarily persuasive, but the counsel defending their own standard terms will have the high ground. They know their contract best, will have heard all the objections before, will have the easier job (resisting changes) and will not care about pleasing the other side’s lawyer. It is more effective for the business lead on a contract (particularly on the customer side) to stay actively involved. Counsel defending a standard form may have no hesitancy in saying “no” to the customer’s lawyer. That may be different if someone has to say “no” to the customer. A disengaged business lead also signals a lack of concern with the terms of the contract. Rule 8. Keep the other side’s sales team out of it Sales leads or customer relationship managers on the other side of the transaction are unnecessary. By the time the con- tract is being negotiated, the sale has already been made and there is no role for a salesperson but to get in the way. They may well be compensated for getting your signature on the contract and may say or do anything (within bounds, of course) to make that happen. Editor’s note: On this point, the editor will have to disagree with the author (and knowing that the author’s father was in sales, the editor would also say shame on the author for this suggestion). Good sales leads on the other side can be a god- send. Not because they will be disloyal to their employer but because they can do many things to help bring the contract to a satisfactory closure. Among other things, they can help: (i) maintain a positive non-adversarial dialogue; (ii) navigate the many policies, procedures, and stakeholders on their side of the fence; (iii) advocate for the customer’s position internally; (iv) be a moderating influence on the naysayers (such as counsel) on their side; (v) obtain the ear of management decision mak- ers to whom tough issues may be escalated; and (vi) search for compromises and alternative solutions. Rule 9. Be nimble and flexible – take an ad hoc ap- proach as much as possible Every contract and every counterparty is different. Focus on what is happening in this particular situation here and now. Adjust accordingly. Policies and checklists stifle deeper critical thinking about the contract and inevitably create more work, particularly where exceptions need to apply. Allow your business leads, who are closest to the action and probablymost interested in getting a good deal for you, to do their job. Editor’s note: Modern vendormanagement principles simply don’t allow for this. What the author says is all true and should be taken into account. But contracting without having and follow- ing appropriate policies, procedures and checklists is dangerous and will result in regulatory criticism. Policies and procedures serve important QA and regulatory compliance functions, help assure contracting consistency within an organization, and can be useful in negotiating (“our policies require this...”). Policies can also serve as backbones for personnel who need them. Contracting can be a costly and frustrating process where it is sometimes difficult to see the value achieved. Following “bold” rules to control the expense of the process are a natural reaction. As suggested by the editor’s notes, however, remaining engaged in the process and actively communicating your concerns with counsel may be a better approach.  1 Anovelaboutphilosophyfromthe1830swhichusedthevoiceofan“Editor” as a literary device. Theauthor andeditor were, in fact, oneand the same. For more information, contact Bryan Handlos at Kutak Rock LLP: (402) 346-6000 or Bryan.Handlos@KutakRock. com. Bryan, a member of Kutak Rock LLP’s banking practice group, concentrates on bank regulatory and contracting matters. We’re providing loans to banks across the country for capitalization, acquisitions, refinancing and restructuring. We’ll tailor terms and conditions to your bank and its owners. Call me at 701.433.7430 Callie Schlieman Based in Fargo, N.D., specializing in bank stock and Regulation O lending Bank stock & ownership loans Bank building financing Business & personal loans for bankers Commercial & ag participation loans Member FDIC 23343 Together, let ’s make it happen. Why choose Bell as your bank’s lending partner? Mike Pate 402.301.3707 Based in Omaha, Neb., serving Nebraska Access the QR Code to read Part 1 of Nine Bold Rules to Get the Most out of Your Contracting Process.