Commercial awareness in practice

Answer

This article was originally published on 26 September 2023. 

The commercial awareness question is one of the most stress inducing to answer during the training contract application process. Understanding what it means can set your application apart in a busy market – large law firms such as Burges Salmon receive more than 1,000 applications from eager students every year.

So, what does commercial awareness really mean? It’s about understanding:

• the sector in which your chosen firm operates;
• what clients want from their lawyers; and
• what your supervisor wants from you.

Sector knowledge

It's, of course, impossible to become knowledgeable enough in respect of every sector that your chosen firm operates. Pick one that you’re interested in and do some research. Burges Salmon has a strong energy team, and the renewable energy sector is never static – in 30 years, it’s gone through many cycles of peaks and troughs, without ever going away. From the first wind farm developments in the UK in the early 90s, through to the first solar boom (and subsequent slow when government subsidies, then known as Renewable Obligation Certificates, were withdrawn in 2015), to the recent resurgence of solar and the introduction of batteries into the market, the renewables sector has proven robust, continuing to evolve and change.

What was once a niche market has gone mainstream, and on 8 September 2023 a record number of renewable energy projects were awarded government funding during the latest Contracts for Difference (CfDs) round. CfDs ensure projects receive a guaranteed price from the government per unit of electricity that they generate, protecting them from energy price fluctuations (CfD-backed projects are therefore viewed as safe and attractive long-term investment propositions by banks, investment and pension funds).

Investment in clean energy continues to accelerate, with Bloomberg reporting a 22% rise in renewable energy investment since the start of 2022 and all-time high levels of investment for any previous six-month period. This represents a huge opportunity for law firms to position themselves for growth in a future-proofed industry. What’s behind the rapid growth in renewable energy investment? There are many drivers: environmental, geopolitical, technological and legal. As the technology becomes more efficient, and new technologies (eg, batteries, hydrogen and carbon capture) are introduced, the viability of these projects is increasing. Broadly speaking, electricity historically needed to be used as it was generated. This constraint necessitates a hugely complex process of second-by-second management of supply to meet demand (known as load balancing), undertaken by the National Grid. It also undermines the utility of solar and wind projects because their output is inherently not suited to delivery ‘on demand’ – if there’s no wind, your wind farm doesn’t produce electricity. Co-located batteries help to solve this problem by allowing electricity generated by renewables to be stored and later released during times when the sun isn’t shining, or the wind isn’t blowing. From a legal perspective, battery storage projects became considerably easier to develop with a recent change to planning legislation that moved large battery storage projects out of the Nationally Significant Infrastructure Projects Regime (a consenting process that could take 18 months or more to reach a resolution and is considerably more expensive to manage) and placed them into the Town and Country Planning Act consenting regime. The result is a reduction in delays and costs associated with battery storage developments, such that the consenting process should now only take between eight and 16 weeks. The pipeline of UK energy storage projects doubled within 12 months of this legislative change.

Clients

Most large law firms now have a sector focus, which means they align their internal teams by sector as well as practice area. Taking real estate as an example, many firms have teams within the department that are focused on investment, energy or development to name a few, and those teams work with a wider sector team within the firm – bringing expertise in the same sector, such as consenting, construction, grid matters, corporate and finance. Clients value this approach as it means they’re properly understood and supported not just in respect of the transaction at hand (for example, on the grant of one lease on behalf of the landlord of a solar farm), but as a business. There’s also a human element to all of this – people do business with people they like, and people like other people who share similar professional interests and passions.

We work with energy developers – typically small teams of passionate people who believe in what they do. If you can demonstrate an interest in their sector, for example by referencing some of the information previously discussed in this article, or asking questions about the projects that they’re working on, they’ll bring you along with them and you’ll learn what’s important to them, almost by osmosis. In the same way, over time and with exposure to many lawyers, clients will start to become more knowledgeable and understanding of what it is that we do!

Lawyers are in a unique position in that we see many more deals over a short period of time than any one client will realistically complete. We have sight of what the wider market is doing, and of challenges that are coming which they may not yet have faced. Sticking with the development of energy projects by way of example, we may act on 100 projects per year, where the client exchanges on 10. This means that we have 10 times more exposure to landowners (the gatekeepers, given that the land rights are the foundation on which the entire project sits) than they do and can advise them accordingly. We also see projects at all stages in their lifecycle, so while a developer client may be at the starting point of a project, we have insight into what an investor or funder will be looking for in five or 10 years’ time. In a crowded market in which access to a viable grid connection is becoming increasingly scarce, approaching a landowner with a deal that works for them from the start can be the key to getting heads of terms signed with your client (who may well be one of many to have offered that landowner a deal). If the client isn’t planning to develop battery storage on the site in future, we can recommend that we draft their lease to reserve them the flexibility to add batteries, or other developing technologies, to the development in future.

For clients, commercial awareness means advising them with an eye on future revenue generating opportunities, and challenges, that their businesses or their assets will undoubtedly present and inevitably face.

Supervisor

As a trainee I always asked myself “if I had to pay my salary every month, what would I expect in return?”

This guiding principle will carry you a long way (even to associate level and beyond!). You’re not expected to know everything, but you’re expected to show initiative and to offer what solutions you can. What can you take off your supervisors’ desks? Are you asking questions, showing interest and looking ahead to the work that you may be undertaking in a couple of years’ time as a newly qualified solicitor? Top tip – everyone likes to think that their chosen area is interesting, so showing interest and enthusiasm goes a long way!

A junior lawyer who can show an awareness of their sector and their clients will already be impressing their supervisor. Those that really stand out appreciate their supervisors’ commercial drivers as well.

James Bird is an associate in the real estate team at Burges Salmon LLP.