Lawyers Must Work On Simplifying Contracts: Meenal Maheshwari , Director—Legal At GoodWorker And Affinidi, India

Would you please take our readers down memory lane and tell us a bit about your formative years

My journey started with ILS and I am an ILS five- year law graduate and I was very academically inclined. So, I was in the Merit list for all the five years amongst the 18 colleges in the University of Pune. Because I was academically inclined, I thought that I should do an LLM and fortunately, I got through Oxford. However, that time after I got through, I thought that spending 38 lakhs for a nine- month course when my plan was to come back to India, whether it was worth the economic burden on me at that time, so I gave it a miss, and instead I took the PPO from Khaitan and I joined Khaitan & Co. 

That's how my career began. I worked a lot on very different structures of M&A across diverse industries. From food to manufacturing to tech giants like Toshiba and IBM, I got the opportunity to work on a number of deals. I also set up a lot of Greenfield businesses in India. It was an extremely fruitful journey that I had with Khaitan and Co.

Thereafter, it so happened that I thought that I am like a privileged lawyer sitting in these posh conference rooms so I wanted to sort of understand the whole 360- degree view and so I asked a senior counsel at the Bombay High Court if I could be his assistant for a bit. I joined him as a counsel and I ran from court to court for arguing matters, sitting in conferences, which were of very different subject matters compared to the work that I was doing at Khaitan. I was not getting any flavor of the disputes in the previous firm. It was a very fruitful journey, but also very cruel one for women lawyers, is what I understood. I think that really needs to be addressed by the number of women counsels, which are hardly like three or four in the Bombay High Court. 

After that, I came back to what I love, which is investments and I started working on investments venture of Times Group, and I was very fortunate to have led around 30 plus deals in just a short span of three and a half years with Times Group. At that time, there were startups like Flipkart and Naaptol but, now they are really big giants, BY JU’s and White Hat Jr. 

At times, we pretty much led the whole legal function as a law firm in itself. So, we pretty much led the whole deal by ourselves. It was an experience just like Khaitan where I was driving all the transactions and was extremely useful while also managing the routine contracts and a lot of work on defamation that was against the media group. 

From there, I also set up the San Francisco office, but the exposure was more India centric and I wanted to do something global and wanted to explore different cultures. Just like in Khaitan, how I used to work a lot with international clients, and I was looking for an exposure like that and I stumbled upon an opportunity with Essar, which was a very, different company from all the companies that I worked with. It was a very diverse experience, because you're dealing with stressed assets. So, I've never dealt with a stressed asset and it was a learning curve like no other. I'm an equity lawyer. Then, I realized that as a General Counsel, you need to be a general counsel. So, you need to understand debt, and you need to understand equity and along with litigations, etc. So, I worked on really complex re-financings and financings and it was an extremely steep learning curve, strikingly contrast is really the businesses that are doing really well like ports and oil and energy and So, I worked on and I continue to work on a lot of bids around the globe, including India, where we want to acquire brownfield assets. So, my journey has been extremely diverse, and I'm extremely fortunate to have such a diverse journey, of course, there's a really long way to go and there are so many things that I want to do. I want to mark something along my path to say that young women lawyers are always going to be at an advantage. 

I really love learning and as I was sharing that I'm extremely academically bent so I also took on myself and I went through a really rigorous process of achieving fellowship, but it's a fellowship that is granted by the UK government, which is fully funded, a fellowship that is offered to senior leadership and mid- senior leadership professionals. I think every year six professionals out of multiple 1000s are selected through our exam and an interview at the British High Commission, etc. I went through that and I got through it. Privacy and cybersecurity have become an extremely relevant field. 

Suppose you're doing an M&A and generally companies now are data centric, you have to understand the privacy laws of the various countries because businesses are now accessible throughout the world. 

So, this fellowship was an amazing achievement for me because understanding cybersecurity and privacy from UK universities where this has been a really old subject and there's so much learning there, was quite amazing. Also,  I am a triple certified privacy professional so that is something that I picked up during the pandemic and took on doing these really rigorous courses around global privacy laws. 

I have actually recently learnt and cleared an exam for data audit and how you can do an audit around data which is a really a new subject that is going to come in. All lawyers who are dealing with B2C companies, it's extremely important for them to understand this because counsels are going to play a really important role, not only in contracts, but also ensuring that the compliances around data are sort of a match so, this is basically my journey. 

What would be your top three insights from the treasure trove of your experiences?

Firstly, I think it is extremely important that lawyers work on simplifying contracts. Even now contracts are running into hundreds of pages. They're extremely verbose, really difficult for non- lawyers to understand, or even for lawyers for that matter. Many times, people just sign it because there's so bored to read it. I think that there's a lot of repetition in contracts, because we are just following standard contracts that were drafted at some point in time. Sometimes, we sort of just keep flowing with the same contract, updating those contracts and ensuring that the repetitions are deleted. The language is extremely simple English so, that every customer actually understands what the contract is and there is a meeting of minds. So, a lot of out of the box thinking is also required, for example while entering into contracts with some parties who are not extremely fortunate to be very literate, we dive into audio contracts because oral contracts are pretty much permissible in India, and you read the contract in their local language to them and when then they say they agree, you audiotape all of this. So, the idea is that the person you're contracting with understands what they're actually agreeing to instead of these verbose contracts that go into multiple pages, repeating things in really difficult language and roundabout language. 

So, I think that is my insight or going forward, the trend should be that these contracts are simplified and extremely out of box thinking is required as to who's going to be the user of those contracts. So that's pretty much the first thing that is extremely important. 

Secondly, I think what is also very important is, for lawyers to understand end to end technology. So, if you're working with any business that is B2C, you need to understand the product and the software and how the information flows to the software, for that you need to have an extreme interest in technology because the way the developer of that app, or the website understands the website, you need to understand exactly how the data is taken in, how the data flows, whether it's personal data, it's non- personal data just flowing from Brazil because if there is multiple citizens data flowing in,  multiple data laws apply, right? So you need to then make a chart or you need to buy compliance software's which can give you what are the compliances in Brazil? what are the compliances in India or for that matter what are the compliances in UK? 

Suppose you're also processing EU citizens data, then you need to then map a system where you say these are common compliances and these are deviant compliances because that's the only way you can deal with 132 country laws on data privacy because businesses pretty much now today's done to website so it's accessible to different nationalities. So, this is extremely important that lawyers are extremely technologically bent and they understand the product really well. 

The third thing that I want to share is the use of technology is crucial for compliances and for contract management otherwise the documents are generally lost.

Many times business teams, because of the attrition, someone who was the repository of the contracts, moves away and then you're just running helter- skelter to find those contracts and execution copies. So, it is extremely important to manage your documentation or your litigation documents, the rejoinders that you fight etc. You must upload all of them into a cloud and you should have really good and strong agreed indemnities backing those cloud companies which are managing your data, or you have your personalized data center where you don't have to depend on a cloud company or third- party company to store your data. 

It's extremely important to manage compliances through a software so that nothing is missed. There's can be a pop up every time a compliance timeline is coming up and every compliance is mapped to a person so there are certain compliances that HR needs to do, certain compliances business team needs to do and certain compliances a  CS needs to do. So, the compliance needs to be mapped to who is going to ensure this compliance and if the compliance is not completed then an appeal needs to come to the general counsel or the legal counsel. So, then they can take it up and say and follow up as to why the compliance is not happening and solve whatever issue is there so that there is actually no non- compliances because the regulatory authorities nowadays have started becoming really strict. 

So, a little slip could really lead to not only monetary loss, but also reputational loss. Another point that is very important in my view is, for a lawyer, to be extremely flexible and be able to wear different hats and understand the situation from the team's perspective. In the sense you need to be able to understand what is the concern of the marketing team, what is the concern of the communication team, what is the concern of the HR team, the business team, the IT teams, so you have to be able to wear all these hats along with being lawyer to understand where they are coming from, because only then you'll be able to give them a solution that actually works for them and you'll be able to influence their decision as to what they are thinking if it doesn't work, why it doesn't work. Because it needs to be in their language otherwise, the internal cross functional teams will not be able to trust you and that's the reason why it's very important to be flexible, to be open minded to understand all the cross functional teams and have a very 360- degree view on the whole situation to be able to give a very holistic solution. 

Well, you have to be able to trust your instincts in my view, and you have to be extremely energetic, you have to keep upskilling yourself and you have to really show your team that you love them and you care for them. Because without collaboration, nothing can be met and as a general counsel or as a lead counsel, it is extremely important to be very patient because you want to bring on so many changes but you're dealing with promoters and you're dealing with people who have had very different experiences for whom something else is very important and not the thing that is very important to you. So, to be able to drive change in a very positive way it is extremely important to be patient but you have to be very persistent. Ultimately, change will come about but changes don't come in overnight. They come after multiple discussions, formal, informal, sometimes during work sometimes outside work. It's important not to give up, but to keep trying and influencing the business and the leaders and the senior management to bring about the changes which are very good for your organization. Basically, these are some of the learnings and the insights and the trends that I think are extremely important.

Thank you so much, Meenal. Some great points there on how we need to simplify boilerplate contracts and how we need to actually look at the compliance mapping. So, thank you so much for sharing these insights. While you've covered everything, would you just point us to any one sort of gap or pain point that you're worried about in this current system?

In this current system, at least from an Indian promoter company perspective, what I am worried about is I think that sometimes it's very important to keep discussing how to bring a privacy culture in the company. So, for example, privacy is not something that is very inherent to Indians, it's more like western culture and it is something that doesn't come easily to us even in our social work. We love to talk and we love to talk about information of A and B with C. So, it's like kind of inbuilt in us. We need to unlearn that and relearn, what privacy is, and for that it is extremely important to have multiple dialogues. A very interesting example, imagine some really important papers, they pretty much go to every senior management person, right? However, it doesn't really need to go to everyone, it needs to go to that one functional head who's actually responsible. 

But what happens in Indian organizations is that though no one reads it, they love to see it in their inbox. The reason is, because they think that they're important. They think that they are to be trusted, so they associate it with trust. However, what needs to be understood and for that multiple dialogues need to be had to say that this has nothing to do with trust, it's just that now the law is evolving and this data is not important for the function that you currently are performing and therefore, please do not feel emotional. You need to understand that we are complying with these laws, these data privacy laws, Ashima, are draconian, with 4% global turnover, as the penalty. 

The penalty is so high that there is no scope to make an error and therefore, it is very important to talk to your senior management and explain to them because this change will not come overnight. They will understand only very gradually and very politely and many times in a very informal environment. So, you need to keep talking and keep getting them mentally ready so that when you implement these controls and the solutions, there's no disruption in the team, there's no ill feeling in the team and the team understands that this is a collaborative effort and we're in it together to ensure that the organization is compliant.

Great points there, Meenal and like you said, we need to stop the relay of information to everybody around and I think Legal Tech steps in and makes sure that the document is visible to the person having a key to that document and that's where the change can probably begin. So, thank you so much for sharing your thoughts with us.