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In-House vs. External Legal Insights in M&A

Anson Lau, Deputy General Counsel at LONGi Solar (SHA:601012)

In M&A, it’s not just about the deal—it’s about who’s at the table. In-house and external counsel both play key roles in a deal, bringing unique expertise and advantages. Knowing how to strategically utilize both can help you manage risks, secure favorable terms, and ensure smooth post-deal integration.

In this episode of the M&A Science Podcast, Anson Lau, Deputy General Counsel at LONGi Solar, shares how to play to the strengths of both sides to optimize your M&A approach.

Things you will learn from this episode:

  • Balancing in-house and external legal roles
  • Mindset differences in in-house vs. external counsel
  • Tactical vs. strategic roles in legal counsel
  • Risk mitigation: external vs. internal counsel 
  • Choosing the right external counsel for M&A deals

Founded in 2000, LONGi is a world-leading solar technology organization renowned for its steadfast commitment to monocrystalline technology, driving significant advancements in the PV industry. With 15 manufacturing bases and over 30 branches globally, LONGi produces monocrystalline silicon wafers and modules, offering solutions for distributed and ground-mounted power station systems, and leading the charge in energy transformation. The company’s shipments have consistently ranked among the industry’s highest, and in 2020, LONGi became the first manufacturer to ship over 20GW of modules in a single year. LONGi’s success is fueled by substantial investment in R&D, enabling rapid application of new technologies and cost-efficient innovations. In 2020, LONGi also became the first Chinese solar energy company to join the RE100, EV100, and EP100 initiatives, underscoring its commitment to zero-carbon solar and sustainable development.

Industry
Renewable Energy Semiconductor Manufacturing
Founded
2000

Anson Lau

Anson Lau is the Deputy General Counsel, Strategic Transactions, and Commercial at LONGi Solar, one of the world’s largest solar panel manufacturers. With extensive experience in M&A and ventures, Anson has played a key role in establishing joint ventures and negotiating complex commercial contracts. Before LONGi, he held senior legal positions at Sea Limited, where he supported the expansion of their global operations, and at Salesforce, focusing on M&A and corporate transactions. Anson began his career at top law firms, including Cleary Gottlieb and Wilson Sonsini, and is an executive at Berkeley School of Law, contributing to the legal community with his deep expertise in corporate law and strategic transactions.

Episode Transcript

Balancing in-house and external legal roles

Being in-house versus working externally are two different types of hard work. At a law firm, which I highly recommend everyone start out in, you develop a great work ethic. Depending on the law firm, you get broad exposure to different types of work. You learn how to build your work-life integration, as opposed to expecting work-life balance from the start.

Let’s be frank—you don’t get paid what you get paid in big law for someone to worry about your sleep or personal time. But it is possible after you've been in big law, to figure out your own work-life integration, especially if you choose a collegial environment.

For example, if you live, play, and work close enough together, stepping away from the office during a big deal to hang out with friends is comfortable. And if you need to return to the office to finish a document quickly, you can do that. No one is telling you how to structure your life, which was helpful for me when I went in-house. 

When I started doing M&A in-house, I found it to be just as unpredictable as at a law firm. When a company wants to buy another company, it's not scheduled months in advance. When the deal is alive, it's all hands on deck, and everyone does whatever is necessary to get it done.

The two different types of working hard are clear: At a law firm, you can differentiate yourself and go far by being a workhorse. But in-house, you realize that being a good lawyer requires more than technical skills. You need to think strategically and understand the risks of acquiring another company.

Every target has risks you're willing to assume to make the purchase because the optimal level of risk in a company is never zero—otherwise, you'd be suspending it in amber. 

Additionally, you need to learn to work with people within your organization, as every in-house department is a highly matrixed environment where you may not have formal authority to get the deal across the finish line.

The intensity of external legal work

I remember whenever you assigned work to a specialist, you knew that once they were staffed on a deal, they would drop everything or stay up late to get your deal done. In-house, you still work with specialists, but they have day jobs. No one's hiring a regular IP counsel and an IP M&A counsel just to get your deal done.

For example, as the M&A in-house lead, you should develop enough competency beyond your core area to keep the ball rolling. This allows you to discuss specialist areas effectively so that your specialist counterpart can focus on their day job and then jump in when needed. 

They can sign off on a preliminary solution or help you think through a challenging issue, rather than expecting them to handle everything on their own and deliver it perfectly to you.

Mindset differences in in-house vs. external counsel

In-house counsel, number one, understands that the optimal level of risk in any growing organization is never zero. Otherwise, you're condemning it or suspending it in amber. 

You need to enter the role knowing that you'll be assuming risks—but which risks are worth taking? How do you mitigate them to get across the finish line and successfully integrate the target into your business?

For example, when buying a company, you might review their commercial contracts and have a specialist look at them. If you ask them to identify all the risks, you might end up with a list of differences in contracting practices, which might be completely understandable. 

Often, small companies take bigger risks because not taking risks could be their biggest threat. These small companies don’t have the leverage to negotiate the same terms as a big, serial acquirer. 

So, simply noting how they can't get the same terms isn’t useful. Instead, widen the scope and consider why you're buying the company.

On one end of the spectrum, you might be buying the company for its talent and not care about its book of business. In that case, the focus is on which contracts allow you to terminate for convenience, and how to exit other contracts early, perhaps by offering compensation or credit for other services.

On the other end, if the book of business is important, the question is how to transition them to your standard contracts. This could involve modifying terms to consider the target's contracting practices. 

You might decide to do this at the point of contract renewal or when launching a new product or service. To motivate this, you could offer incentives like discounted pricing when they move to your terms.

Tactical vs. strategic roles in legal counsel

Strategically, as in-house counsel, it's your job to understand the risks, how your organization operates, and then guide your outside counsel. You must point out which risks your organization can take and which it can't, due to institutional limitations.

Outside counsel often becomes too conservative, which is understandable because in-house counsel may use them to cover their bases. It’s outside counsel’s job to over-disclose and outline all risks so that in-house counsel can have the full picture and make informed decisions.

One of the most interesting challenges as an in-house M&A counsel is identifying remote risks that could have a significant impact if they materialize. 

For example, when discussing with internal clients like Corporate Development, you might say, "We're paying X headline price for this company. If this risk arises, which I'm not saying it necessarily will, this is the additional risk cost I've quantified."

This approach allows you to present risks in a quantifiable, practical sense, rather than in legal jargon, helping your internal clients make more informed decisions.

As in-house counsel, it's also crucial to consider not just legal risks but reputational and other non-legal risks that no amount of money can resolve. For example, around 2017-2018, the #MeToo movement became a significant issue. 

At Salesforce, we started incorporating #MeToo representations into our agreements, treating them not just as general reps and warranties backed by escrow, but as fundamental reps with potential exposure beyond escrow.

These reps were handled differently by not applying the general materiality standard but by reading them exactly as written, without any materiality overlay.

Understanding negotiation perspectives

As outside counsel, your job is to be a zealous advocate. It’s you against the other side, viewing the negotiation table as a long rectangle with the target on one side and the buyer on the other.

However, as in-house counsel, you need to realize that after the deal closes, those target founders and high-level executives you were tough with will become your colleagues. They may even outrank you in the organization and will be crucial in integrating the target into your company’s infrastructure.

Any unnecessary bad blood, no matter how great of a legal advocate you were, could taint your relationship with them. So, negotiation for in-house counsel requires a different approach. While outside counsel views the negotiation as a standoff, in-house counsel must recognize that they will soon sit at a circular table with these same people.

For example, in a private deal, I might negotiate hard on reps and warranties, and escrow because that’s the buyer’s self-insurance regime. I often take the position that this is the price of my money, which buys this self-insurance policy in case something goes wrong.

However, when it comes time to make an indemnification claim, there’s usually more discussion involved than just what the M&A agreement says. Lawyers can outline the full rights, but it’s also about considering how the integration is going and whether making a claim is in the best interest of the company.

If the integration is successful and everything is going well, we might choose not to muddy the waters by trying to claw back money. It’s within the buyer’s right not to make a claim.

On the other hand, if something catastrophic happens—like realizing the diligence was imperfect and needing to rewrite the code—you're protected under the reps and warranties. You might technically be able to throw the book at them, empty the escrow, and demand they pay back their share of the M&A proceeds. 

But instead of taking that approach, you might recognize that kicking them out could be counterproductive since they're the ones who know best how to fix the problem.

In this case, you could use the potential claim as leverage while focusing on collaboration to resolve the issue, allowing bygones to be bygones.

You have two approaches: If you want to play hardball, have your outside counsel do it. You want them to be overly conservative, to over-disclose all the risks so that when you make decisions, you do so with your eyes wide open.

As a lawyer, whether it's a commercial contract, M&A agreement, or venture investment, I always tell my clients: if you truly believe you have a great working relationship with the counterparty, you might not even need lawyers. 

If you trust that you'll find a way to resolve issues amicably, without anyone getting the short end of the stick, then there's little need for a contract.

However, the reason you have a contract is for those rare occasions when things go completely off the rails. It's about having guardrails in place so that if the relationship becomes acrimonious, you have a clear path forward without trying to piece it together in the heat of the moment.

Risk mitigation: external vs. internal counsel 

As outside counsel, there’s only so much you can do to help in-house counsel mitigate certain risks because you don’t fully understand the inner workings of their organization. 

However, outside counsel is valuable because they can share insights from representing other companies in the same space. They can provide examples of how those companies handled similar issues.

In-house counsel might take those suggestions and either adopt them directly or use them as a starting point to develop a tailored approach. In-house legal departments are highly matrixed organizations, and the corporation as a whole is even more so. 

The challenge in a corporate environment is that you need buy-in from people over whom you may not have formal authority to develop a solution or mitigate risks identified during the deal process.

External counsel can provide a sense of what market norms are—what's common or precedential in the legal world. In contrast, in-house counsel can collaborate with internal subject matter experts (SMEs) to adapt those precedents and adjust internal processes to mitigate risk effectively.

Outside counsel can be expensive, and while law firms might be eager to assist with integration because it’s time-consuming and detail-oriented, it’s often up to in-house counsel to connect the dots. They need to ensure that the strategies decided upon pre-closing or at closing are successfully implemented post-close.

Cross-functional collaboration in risk mitigation

The example I'd mention is Salesforce's approach, which taught me a lot and informed me how I handled issues at Sea Limited and, to a lesser extent, at LONGi, where I work now. 

In their M&A processes, Salesforce would disclose a group of people that were not just legal but also included technical, finance, accounting, and tax folks, along with, most critically, the executive or group of executives who would be running the business post-close.

While you were doing your diligence, the executive was also lively understanding the risks and how they evolved. They were also considering potential mitigation strategies. This approach ensures the executive understands the cost of keeping the contracts alive. 

For instance, if you ask someone responsible for a business unit post-close whether they want more or less revenue through these contracts, they’ll obviously say they want more. 

But if you explain that maintaining this revenue requires a certain headcount to continue providing specialized services, they might reconsider.

Secondly, it's vital to have non-legal or non-deal folks contribute their input. For example, the target might deem a certain customer contract as not worth keeping post-close because it barely earns anything. 

However, you might want to consider whether that customer also exists on the buyer side. It’s not uncommon, especially if you’re growing inorganically due to a large overlapping customer base. 

In such a case, you might decide not to terminate a minor target-side contract because doing so could upset that customer, who also has a buyer-side contract.

Once you close the deal and announce the acquisition, the customer doesn’t care which side of the target or buyer line they were on pre-close. They’ll just view themselves as your customer, period.

If anyone’s going to be the bad cop, it should definitely be outside counsel. Outside counsel also knows better how to read who they’re negotiating against because the world is small, and M&A circles are even smaller. 

Often, if you're outside counsel, you don’t just handle buy-side deals; you do both buy-side and sell-side. So, you understand the counterarguments that the other side will make and which ones fly with certain buyers, and which ones you’ll have to make for the principle of it.

For in-house counsel, you also learn how to negotiate and what stance to take against different groups of outside counsel representing the targets. 

Oftentimes, the same law firms you’re sitting across from when buying companies will make you think twice before hiring them to represent you in other transactions. 

As much as they may say there's a "Chinese wall" within their firm, promising that associates won’t access all the counterarguments you’re making, it’s hard to implement in practice.

These firms all hang out at the same bars, so word gets out. What ends up happening is that law firms that are really good at representing companies selling to big serial acquirers often don’t get to represent those same serial acquirers when they’re buying, even though they’re technically capable. 

This means that the law firms you use as a serial acquirer to help represent you in buying companies are often a different breed of firm.

Assessing law firm culture

Silicon Valley is such a small world that you know the groups and the players within that law firm. It’s not just about stereotyping based on the firm’s logo; it’s more about the specific group within the firm. From there, I can gauge how they operate.

In Silicon Valley, partners often jump from one law firm to another. For an associate, firm culture is very important because, at that stage, you're not really tied to any one group. The overall culture shapes your experience. But as you practice longer, you become more connected to working with a certain partner or group of partners rather than the firm itself.

If those partners leave, they might bring you along, which means you’re more attached to that person or group. Together, you form a certain dynamic and culture, and you understand how to negotiate in a particular way.

Best and worst-case scenario of M&A deals

I wouldn’t say there’s a clear best-case or worst-case scenario. The way I view deals is that, as a serial acquirer, if I’m going up against a small VC-backed firm, my job is to be clever about arguing back to my paper because I’m setting a precedent. 

I’m communicating to the market that this is the price of my paper, and I just want my terms. I will only give you a handful of changes, and that’s just how it is. I can say that confidently because, having represented other serial acquirers, I know that’s also what they do.

It gets so extreme that sometimes, as the serial acquirer’s counsel, you just call up the other side and say, "I’ve looked at your markup. X, Y, and Z are going to get rejected." Instead of making all those changes, tell them what you can get across the finish line because you’ve seen it happen so often. 

Then, after they’re okay with that, they tell their client. You don’t even take their version and reject all their changes. You save your prior version on top of theirs and make only a few changes you said you would accept.

This happens when the power dynamics are so skewed that it doesn’t make sense for the serial acquirer to bend and break from their terms. Serial acquirers are looking for a repeatable, scalable process. The more you can stick to your paper and use your playbook to integrate the target and manage risks, the better.

However, you can’t do that with every target. For instance, if the target has a real book of business and is owned by a private equity firm that took a previously public company private, it’s unlikely you’ll get away with sticking strictly to your terms. 

In that case, it’s your job as in-house counsel to be clever. You need to know when to raise red flags and when to understand that your terms might be too rigid. You must know where to give because that’s the market standard. You won’t give on everything, but you have to know where to be flexible.

That’s where you have to exercise your skills in getting your organization, including groups of people you don’t have formal authority over, to adapt so you can get the deal done and mitigate risks appropriately.

As in-house counsel, it’s your job to allow the other side to say their piece, and there’s often a bit of theater in the back-and-forth. But at the end of the day, your role is to get deals done. Your job is not to constantly raise red flags and hold up the process because you haven’t gotten everything back to your paper.

There comes a point where you have your own "come to Jesus" moment, realizing you can’t keep arguing back and forth. You decide to take on the risks, understand what’s acceptable, and push forward to get the deal signed.

Efficiency in legal deal processes

Before we dive into that, I want to mention something important—don't underestimate the power of money in getting deals across the finish line. Sometimes, just shifting some costs around can make a significant difference. 

For example, offering to cover a cost that would typically be on the other party can help tie up loose ends more effectively than continuing to argue over theoretical risks.

It’s a question of finding a balance. You might say, "How about I give you more money now at close, and you take the risk that this issue will arise during the general survival period?" This can be a more practical solution than getting bogged down in negotiations over hypothetical high-magnitude risks.

Now, regarding your question about outside counsel, I'm very aware—and I try to communicate this to others I work with—that as in-house counsel, you've been hired because the company doesn’t want to rely solely on external advice. 

They don’t want a lawyer who will run up the bill unnecessarily. So yes, part of the value of in-house counsel is in lowering the legal bill.

While in-house counsel may use outside counsel to cover their bases to some extent, you can't do that every time. If that were the case, you could hire anyone to engage a law firm to cover their responsibilities. It's about finding the right balance. You want a partnership with outside counsel that acts as an extension of your efforts, not a fully outsourced operation.

Outside counsel, because they handle so many deals and often sit on both sides of the table, can become somewhat agnostic about how certain issues are resolved. Many of them would be more than happy if in-house counsel says, "Don't worry about that. I'll handle it later. Just drop it."

Choosing the right external counsel for M&A deals

One consideration is cost. For example, if I’m hiring a law firm with all the leverage and just negotiating back to my paper, I don’t need the most sophisticated firm. I just need someone familiar with my paper and who knows how to argue back to it. 

They should also be relatively familiar with how I mitigate risks, although as in-house counsel, I can easily layer that on top. A broader range of firms can be taught to do this.

However, if it’s a particularly prickly deal, I wouldn’t give it to those who are good at arguing back to my paper. I need people who understand my paper but can also help me think through complex issues and devise more sophisticated risk mitigation plans. 

These prickly targets often offer the biggest business opportunities, so I shouldn’t hold up the deal simply because there are more risks than usual.

When hiring an outside law firm for M&A, something I learned that wasn’t obvious to me before is that you can find many top-tier corporate M&A lawyers, employment attorneys, and employee benefits attorneys. 

But what’s harder to find—and what may drive your decision—is a great IP team, privacy team, or antitrust specialist. With increased federal scrutiny and antitrust concerns, these specialist teams often will help manage the risks in deals.

At the end of the day, it’s not just about how great the M&A team is, even though they’re the ones pitching you. You need a law firm with a solid M&A team, but the specialist groups within that firm will win over your decision-making process.

The M&A lawyers themselves don’t matter as much in the end. We’re like monkey scribes—we’re just project managing, ensuring all the T’s are crossed and the I’s are dotted. Sometimes it feels like that.

Building relationships with legal counsel for future M&A deal

If I were you and didn’t work in Silicon Valley but planned to buy a tech company, I’d reach out to the big serial acquirers like Salesforce, Facebook, and Google. Ask their M&A folks which law firms they like using and why. 

Then, separate those firms based on how you’ve categorized your needs or maybe in a way that others in your industry do.

For example, who would you use for an acquihire deal where you have all the leverage and want to limit costs? And who would you use for a more complex deal, like buying a company with a substantial book of business, a real history, possibly private equity-owned? Asking for referrals from in-house M&A counsels is invaluable.

Otherwise, if you go purely off word of mouth, reputation, or by reading bios on a website—which, let’s be honest, everyone copies each other—it’s hard to tell who does what. If you find a list of the best M&A law firms, flipping through bios won’t tell you about their working style.

M&A is so broad. A firm that excels at complex East Coast-style deals might not be the best fit for a tech deal. Even though they could learn to do it, it may not be the most efficient choice. Before antitrust became a significant issue, for example, I handled it with my team, with some assistance from outside counsel. 

But now, with antitrust being more critical, you might hire one firm for the whole deal except antitrust and then go to a firm with a strong antitrust practice to handle just that aspect.

Managing diligence: pre-term sheet vs. post-term sheet

Serial acquirers often have corporate development departments that are asked to evaluate potential targets. They kick the tires, everything seems good, and then they get to the term sheet stage. 

But it's only after signing the term sheet and gaining access to the data room that they realize there’s a big problem. How do you identify those deal stoppers earlier so you don't waste time and resources before formally signing a term sheet?

One key thing is helping CorpDev understand that no target will completely open their treasure trove of information to a CorpDev team simply because you've signed an NDA, however robust it might be. 

At the end of the day, if the CorpDev team decides to walk away from the deal, any solid buyer-side NDA will make it very clear that the buyer is a multi-headed hydra. The buyer regularly looks at many different targets, and the buyer may have a different department within them to develop a competing product.

Because in M&A, the question for a buyer is always, "Is it easier for me to grow organically and build this in-house? Or is it easier for me to go out, buy a team, or buy a business, and grow inorganically?" 

A really interesting issue raised by this is that I remember listening to some podcasts about how Apple got into trouble recently with their Apple Watch. This was a few months ago, and there was some technology for them to track heart rate. 

They were sued, and a court ruled in favor of the target, where the target said, "We were too naive, and we shared too much information with them, thinking they were interested in buying us." 

But at the end of the day, they never went through with the deal, and they happened to develop a competing product. Once Apple does that, the target's business can't survive, and they become worthless.

So, I do sympathize with targets who take that position. It’s a very fine line that your CorpDev team has to tread with each target to gain their trust. But it’s also very important for your CorpDev team to establish a track record of integrity and trust so that targets feel safe sharing information with you, knowing it won’t come back to bite them later on.

Now, post-term sheet, when the target opens up their data room and lets you rifle through any and every document they have, and you start asking all these follow-up questions. 

What you need to understand as the buyer is that because you still theoretically have the right to never sign an agreement—or if you’ve signed an agreement, to not close if certain things aren't done. 

If you want to meaningfully exercise that right and eventually flip to just building the product yourself, you can’t disclose every single technical person on your side who would be capable of building that product to go in and do the diligence on this target.

Because if you do decide to walk away from the deal before signing an agreement, or if you decide to walk away from the deal between signing and closing, you're not only going to be able to rely on some residual clause in your NDA.

Say, "Oh, but I told you that I might retain something in my unaided memory to potentially go and build something else," or "I already told you in my NDA that I'm a multi-headed Hydra beast and that I may eventually develop a competing product." 

Because if that target sees you create a competing product and realizes that they'll be destroyed, they may very well take you to court and fight tooth and nail to survive.

For you to still be able to continue developing that product or competing product, you may need to hire an entire team off the street to do that. 

If you haven't planned for that, or if you aren't willing to do that, then you need to think carefully beforehand about who you disclose on your technical side to go and do diligence on this target, so that you still leave yourself the option to walk away if you decide that there are other issues on the table that you weren't ready to take on.

Identifying red flags before signing the LOI

The big issues that are often overlooked include reputational issues. For example, if a company has a reputation, say on Glassdoor, for having a toxic work environment or, worse, for having issues like sexual harassment, that’s a major red flag. 

It doesn’t matter how valuable the target is—the reputational hit to you as the buyer might outweigh any potential value they could add post-close.

Another critical area is regulatory issues. I’m thinking back to the days when companies wanted to play fast and loose with regulators, operating on the principle that it’s easier to ask for forgiveness than permission. 

While there might be value in acquiring such a company, you have to consider whether the potential regulatory backlash, especially if there’s criminal liability involved, outweighs that value.

If there’s a potential regulatory risk, particularly around antitrust, you could theoretically seek antitrust approval from the authorities based on a term sheet alone. But if you want to keep the deal under wraps, there’s a risk. 

Authorities could reach out to your competitors and ask if they see any anti-competitive effects, which could alert everyone that you’re targeting a particular area or company. That’s a significant risk.

You wouldn’t want to be the one to tip off your competitors. Or, if you’re willing to take that risk, you need to understand that word can get out, even though it’s supposed to be confidential.

I haven’t done as many of those super-sensitive deals lately, but it could still theoretically be an issue. Some private companies might not have a great book of business but could have a really valuable team. If word gets out that they’re in play, it could derail whatever deal timeline or schedule you had in mind.

Collaborating with internal stakeholders pre-LOI vs post-LOI

Corp Dev and M&A work hand in hand all the time. The best deal teams probably have the closest relationship between Corp Dev and their in-house M&A lawyers. These two are typically the leaders in the deal process, relying on each other to divide and conquer and to get cross-functional alignment within the deal team and across the organization.

The second most important aspect is building a track record with the people you encounter repeatedly on your deals. You need to prove to them that you will advocate on their behalf to get back to your paper or playbook. This is important because they have day jobs, and there's value in creating a repeatable, scalable process.

One day, when you need to disrupt their day for a unique issue, they’ll know you’ve earned that right.

I don’t expect anybody to read the PA. I expect myself to know it back and forth, and I expect my outside counsel to know it well. For example, when I kick off a deal, I’ve already summarized what the term sheet says. If there's a specialist group that always focuses on a specific aspect I might overlook, I’ll call it out for them.

I also try to provide as much background information in a concise, digestible format, so everyone knows that when I kick off a deal, they can attend the meeting or review the slides later if they couldn't attend.

For everyone else, they don’t need to know more than the term sheet, the target, and basic details. When it comes to the PA, they don’t need to understand it beyond general terms. I rely on their outside counsel counterparts to delve into the details and inform them of significant issues.

However, I stay fluent in their specialty area and sections of the PA. If they’re uncomfortable signing off, I can explain why I’m comfortable with it—whether it’s because of specific reasons in this deal or because we've already signed off on similar terms in prior deals. I don't expect them to remember what they approved before, but I should be able to pull it up and say, "You’ve signed off on this before."

Some Corp Dev people do get into the weeds, and those are few and far between. Quite frankly, I don't need Corp Dev to know all that. What I do need them to understand is that it isn’t just their job to source the deal and then be a human alarm clock.

They need to recognize that there’s work to be done, and they should have the patience to understand that I may need to pull them in selectively to argue certain commercial points. If Corp Dev feels like I’m overusing that, I’m open to feedback.

Similarly, it’s not just about sourcing the deal. Sometimes, people on a Corp Dev team—or even salespeople who source commercial deals—think their job ends once the deal is sourced. They become human alarm clocks, telling me, "I want to sign by X date," without ever looking at the agreement or understanding what needs to be done to finalize it.

So, they need to know enough to understand what’s going on. I also really rely on Corp Dev to understand the deal in mathematical terms so that it’s accurately reflected in the agreement. 

When it comes to buttoning up tricky issues, if Corp Dev can think at a higher level—like paying more at close to have the other side assume some theoretical risk post-close—it helps align everyone because, at the end of the day, it’s all about the numbers. 

Whatever you agree to in the M&A agreement for the payout and risk shifting needs to be reflected in a spreadsheet somewhere.

The Impact of AI on the legal profession

I’m fascinated by AI and try to read as much as possible about it. One common view is that AI will likely bring the greatest changes not through flashy tools like OpenAI’s ChatGPT or Google’s Bard but through its application in more mundane industries that manage to harness AI’s power for efficiency. 

For example, I recently read about data centers using AI to predict energy usage based on weather patterns or financial institutions using AI to detect fraudulent transactions. These are low-hanging fruits, but AI, once implemented, could lead to significant efficiency gains.

However, there's also the reality that AI is still more artificial than intelligent. Current AI models like ChatGPT or Bard can hallucinate and produce results that their creators can't fully explain. 

For instance, there was a case where an AI suggested putting glue on a pizza recipe or generated images of the Founding Fathers that were wildly inaccurate. In the legal world, this poses a risk.

Some people have considered using AI, such as ChatGPT, to draft memos and fact-check afterward. But more often than not, they prefer to write it themselves to ensure accuracy because AI can conglomerate facts in ways that are difficult to disentangle.

That said, AI will become very useful in legal diligence once it’s trained to a certain level and can be manually checked by humans for accuracy. For example, AI could help pull out all change of control provisions or termination for convenience clauses. But to get there, many examples will be needed, and a human will still be required to verify the output.

Until AI reaches that level of reliability, we’ll still need human oversight. The most realistic near-term scenario is having lawyers who are well-trained in AI and can collaborate with these tools to get the job done rather than fully automating everything.

We might revisit this conversation a year later, and it could be all about the AI use cases we’re currently using. Who knows, by then, it might be deep fakes and synthetic voices, and the challenge will be figuring out which podcast segments are real and which were AI-generated.

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