Rich Gorelick, former GC of Integra LifeSciences, cautions lawyers about turning into instant gladiators when trying to defend against suppliers' invocation of force majeure clauses.
As we are aware, many suppliers are looking for relief from penalties that may be levied due to non-fullfillment of obligations driven by COVID-19.
It's easy for the customers' lawyers to try and "squeeze" suppliers for penalties using contract provisions as the hammer. Though this may meet the letter of the law, it will likely damage relationships with trusted business partners. So what to do?
Instead of advising lawyers who are trained litigators to not take an adversarial stance, we have found that working with them to broaden contract analysis beyond force majeure (and related) provisions, using a data-driven approach can help them "walk back from the ledge" and take a deep breath.
Over the past few weeks, one of the ways we have done that is to have our customers ask a broader set of questions about the provisions in a contract, and extract metadata and provision language to explore alternatives to gladiation. We then combine this with a process leveraging Machine Learning and AI, along with trained lawyers, and quickly present this information to our customers in a format that enables them to have a rational conversation with business partners.
We have found that even professional litigators take a deep breath, take off the gloves and are willing to have a "business conversation" first.
Let's make the world a kinder place, one metadata field at a time.
With all the hand-wringing over contract litigation and negotiation surrounding force majeure clauses, some in-house counsel might have lost sight of the importance of maintaining business relationships during the COVID-19 pandemic.