Stop the Madness: 6 Ways to Break Free From NDA Drudgery
Most of us spend way too much time on NDAs. And not only is this unnecessary, it’s impeding more important legal work.
Understandably, legal teams may feel obligated to protect the business from itself.
But in doing so, busy work takes over. This mindset also reinforces a cycle of disempowering your stakeholders while making your team a bottleneck.
Lucy Bassli, founder of InnoLaw Group and former assistant general counsel of legal operations and contracting at Microsoft, is candid in her assessment of how legal is piling on unnecessary NDA complexity:
“Let's agree that the VAST MAJORITY are basic agreements which have been over-complicated by lawyers for lawyers.”
In this guide, we share her no-BS tips for dealing with NDAs – a notorious contracting time suck, – and offer ideas on how legal teams can resist the tyranny of less significant contracting work.
Tip #1: You don’t just need fewer NDAs, you need a policy.
Policy is a fancy word describing how legal leaders can take back control of their inboxes.
In general, NDA work is high volume, low complexity. This makes it an ideal starting place for streamlining contracting processes. A policy describes how business stakeholders can own more of the NDA process and emphasizes the reduced role of legal review.
Bassli notes that risk is dependent on the industry, geography, and corporate culture of the company, so don’t expect a one-size-fits-all NDA approach. To balance strategic demands with day-to-day work, legal needs to establish some criteria and make sure NDAs don’t miss their original purpose: “You keep my stuff secret, and I’ll keep your stuff secret.”
To start crafting your policy, ask yourself:
- What issues can the business solve without me?
- What terms matter most to us?
- What are two to three common negotiation areas that require escalation?
“Your policy can be polished and published, or written on a post-it note that everyone agrees with. The format is not critical. What matters is that it describes the only scenarios when NDAs come across your desk.”
Lucy Bassli, Founder, InnoLaw Group
Tip #2: Make stakeholders have “skin in the game.”
For all the hand-wringing about sales, HR, IT, and finance clogging email and Slack with NDA asks, legal needs to remember that the behaviors we train are the behaviors we can expect.
To change how stakeholders work with NDAs, legal must delegate responsibilities and empower the business. Bassli encourages legal teams to codify these in a RACI chart.
A RACI is a simple diagram used to map task roles to project participants, and it can be used for communicating a shift in responsibilities for everyday processes. RACI stands for:
- Responsible
- Accountable
- Consulted
- Informed
Each letter defines a person’s role related to a task or decision. Using a RACI matrix for NDA workflows eliminates confusion by identifying who’s doing what in a more granular way.
The matrix also shifts NDA ownership back to business stakeholders and ensures legal has bandwidth when consultation is required.
We recommend that legal teams plan for two versions of the matrix:
The first describes how a stakeholder can pull together an NDA and run it through the signature process. For example, this might include who’s responsible for generating the contract using self-service templates in your CLM system or who is responsible for execution within the sales CRM platform.
The second matrix addresses who handles deviations from preferred NDA language, clauses, or concepts. For example, when an NDA comes back from another party with comments, your stakeholders can review your pre-approved parameters of acceptable changes and self-serve to resolution. This RACI adds efficiency by empowering the business to negotiate some terms independently without relying on legal.
Tip #3: Add your artifacts.
Once you define a process, add supporting resources to help stakeholders follow through without you.
Most legal departments have some version of an NDA template. These may include one-way or mutual NDAs, and they may be for a specific purpose or particular business unit. A template can help keep the business from coming to legal every time they need to initiate an NDA because they’ll already have something to start with.
Keep in mind, the template should be accompanied by simple instructions and negotiation guidance (commonly referred to as a “playbook”).
Drafting NDAs isn’t the place to flex your legal aptitude or outmaneuver your counterparty with a deft redline. When NDAs are reasonable and well-written, they can usually be signed as is. Similarly, when fall-back positions in playbooks are reasonable, negotiations close faster.
When producing these artifacts, Bassli warns against providing too many options:
“Early on, don’t overwhelm stakeholders with a bunch of supported clauses and trust them to piece together an NDA. Build momentum first, and show how easy the process can be. You can add options down the road.”
“Contract chaos is mostly self-inflicted. We’ve scared stakeholders to the point where they are afraid to talk to anyone without an NDA.
"Your job is not to eliminate every ounce of risk. Your job is to add value by taking smart risks and enabling the business.”
Lucy Bassli, Founder, InnoLaw Group
Tip #4: Narrow the funnel with technology.
As companies develop NDA policies, CLM technology becomes a critical part of unlocking simplicity, speed, and efficiency. Modern platforms are remarkably robust, but legal teams may quickly become overwhelmed trying to figure out where to begin.
“Start at intake to reduce the ways NDAs come to you,” suggests Bassli. “Instead of reacting to Slack, email, text, Salesforce, Coupa, or a dozen other avenues for receiving contract help requests, use technology to narrow the funnel.”
Just make sure that the technology you use to receive requests and escalations is easy to use, widely accessible, and clearly described in your policy.
Tip #5: Start small, then build bigger.
As you introduce process improvements, remember the primary goal is to get NDAs out of legal.
You’re building a new muscle, and this effort requires re-training behaviors across your partners in sales, HR, IT, finance, procurement, marketing, or other departments.
Don’t overhaul processes with all of them at once. Instead, start small.
Choose a high-volume but relatively limited group to test your policy, messaging, and artifacts.
You may also have to test drive your “pitch” for stakeholder buy-in to the new process. To help this, Bassli suggests that your GC provide business guidance to C-suite leaders while reminding them that the change helps the business move faster through smart risk taking.
Tip #6: Don’t sweat a few misses.
The hardest part of smart risk taking?
Knowing that a few bad NDAs will slip through the cracks.
Releasing control is essential to creating efficiencies in your contracting process. A few inconsequential misses will expose gaps that need filling and help direct improvement efforts, shore up training, and sharpen communications.
Even with a few sub-optimal NDAs out the door, the trade-off is still a no-brainer. Saving time and removing legal from unnecessary processes is a win for the entire enterprise. The scarier alternative is that your most expensive employees are burning their salaries wading through trivial text.
Remember, the goal is to get legal out of the way when there isn’t significant risk to mitigate. By allowing legal the time to focus on higher-value work, you’ll help the team avoid burnout and stay fully engaged.
About LinkSquares
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About InnoLaw Group
InnoLaw is a specialized consultancy led by commercial lawyers and legal ops professionals who are uniquely focused on all aspects of CLM optimization based on firsthand experience — from contracting process redesign to template simplification and playbook creation through selection of CLM technologies. If you need help rethinking how your legal department handles commercial contracting, contact the InnoLaw Group today.