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w w w . c a n a d i a n l a w y e r m a g . c o m A P R I L 2 0 1 9 19 Once the contract review is complete and the goal is closing the deal, the next important stage is contract negotiation. While the contract review process is internal, contract negotiation requires collaboration with external parties, customers and their third-party advisors, such as a law firm or a consulting firm providing procurement advisory services. International Association of Contract and Commercial Management reports have repeatedly revealed that the top issues negotiated by lawyers include limitations of liability, indemnities, warranties and intellectual property rights. How- ever, determining the main purpose of the contract does not even appear in the top 10 items discussed during these negotia- tions. If working software is the primary measure of progress in the agile method, the contract lawyers' primary focus should be to ensure the software is working as intended. A contract lawyer's focus is to protect the client's interests. Every lawyer will cite a win-win solution at some stage during contract negotiations. With agile contracting, such a solution is not only possible but probable. The contract negotiations teams from both the buyer and seller can work in a collaborative man- ner by adopting agile practices to truly achieve that win-win. The seller representatives should demonstrate their capabilities and assume some risk in delivery of services and the buyer side needs to be "reasonable" in not transferring their business risk to the seller. For instance, if the buyer insists on unlimited liability or an excessive liability cap from the seller, it may look good from the buyer's perspective, but would that really help the buyer achieve the purpose of the contract? To draw an analogy, it is like stating that we do not care about what happens to the contract goals because we are insured. The negotiations should result in a contract that stipulates a process where the contract goals are achieved seamlessly and risks are mitigated should those goals fail. To achieve this, the most efficient and effective method of communicating is through in-person meetings. Face-to- face communication also happens to be an agile principle, one that has since become dated for software development as teams no longer need to be in one location. But the good, old agile principle is still the most effective way for contracts to be negotiated. Some may consider agile principles as old wine in a new bottle, but it is important for the legal community to speak the language the business community understands and adopt agile practices. By doing so, lawyers can build better credibility with their internal or external clients and develop a new agile mani- festo that values contract negotiations as equally important and not as a bottleneck in achieving the contract goals. Nagendra Krishnamurthy is the head of legal and corporate secre- tary of Tata Consultancy Services Canada Inc. © 2019 Thomson Reuters Canada Limited 00256ME-95198-NP Find fast answers on tort law issues and practice Available risk-free for 30 days Online: store.thomsonreuters.ca | Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # L7798-8909-65203 $116 Softcover February 2019 approx. 160 pages 978-0-7798-8909-9 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Rely on this well-organized, straightforward primer for tort law and practice in Canada. Canadian Tort Law in a Nutshell, Fifth Edition covers the key principles and relevant issues, explains how the various tort law concepts apply in practice, and highlights the leading decisions in the area. New in this edition This fifth edition features new commentary on areas of law that have been the focus of judicial attention, including: • Developments in privacy-related torts • The liability of public authorities • Causation • The tort of "unlawful means" • Third-party and vicarious liability • Professional negligence New Edition Canadian Tort Law in a Nutshell, Fifth Edition Margaret Kerr, JoAnn Kurtz, and Laurence M. Olivo

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