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Don’t Kill the Deal: Retrain(ing) the Legal Brain

Written by Laura Lee Norris, SCU J.D. '97

      It’s not easy for a lawyer to see problems as opportunities, due in large part to our formal training.  It is often said that the purpose of law school is to teach students how to “think like a lawyer.”  Law students study cases to discern legal doctrine, further dissect the doctrine through the socratic method, and are tested on their ability to apply the doctrine to a set of facts different from the studied cases.  Essentially, these doctrinal law school courses focus on the problem-finding process, as opposed to the problem-solving process.  Which makes sense; lawyers are of no use to their clients if they cannot accurately spot issues and apply legal maxims to the situation.  It is a fundamental competency of our profession.  However, when counseling a business decision-maker about legal minefields, a strong  lawyer goes one step further and provides practical options to lessen or avoid the risk – in other words, they find opportunities in the presence of legal problems.   

      It’s for this reason that I developed an exercise in the Entrepreneurs’ Law Clinic (ELC) called Don’t Kill the Deal, which is assigned in the first several weeks of the semester.  The Don’t Kill the Deal assignment presents the law student with a hypothetical cross-border manufacturing agreement, whereby the student represents the customer in negotiating with an overseas manufacturer.  The overseas manufacturer has ultimate bargaining power and refuses to negotiate a handful of very onerous contract terms.  While negotiating the contract, the student learns that the manufacturer is currently defending a lawsuit for trade secret misappropriation. The manufacturer refuses to sign non-disclosure agreements (NDAs) but yet insists upon early disclosure of confidential technical and financial information in order to get the deal done. The law student is put in a bind - the CEO wants the deal done ASAP and the legal risks are plenty.       

      The assignment for the law student is to write an email to their CEO with suggestions on how to mitigate the legal risks, assuming the CEO is going to sign this agreement without changing any of the contract terms themselves.  This requires creative problem-solving because the traditional lawyer-answer would be to insist on an NDA, and negotiate a favorable contract. Despite forewarnings ahead of time, and the very title of the assignment itself, every semester a handful of students “kill” the deal by sending the CEO an email explaining why the company should find another manufacturer. However, after class discussion and multiple revisions, they eventually come up with out-of-the-box solutions.  

       I have often heard from former students practicing as Silicon Valley lawyers who tell me that the Don’t Kill the Deal exercise was the most impactful assignment of the ELC, and perhaps their law school careers. They find themselves drawing upon the entrepreneurial mindset often, finding creative solutions to help their innovative clients achieve business goals while lessening legal risks. 

Laura Lee Norris is an Associate Clinical Professor in the School of Law and the incoming Associate Dean of Academic Affairs.  In addition, she is the founding Director of the Entrepreneurs’ Law Clinic and Tech Edge J.D. program, and a co-Director of Santa Clara Law’s highly ranked High Tech Law Institute.