Are You a Negotiator or a Bureaucrat? Clients Care
I'm lifting the entirety of Ken Adams' post The Connection Between Contract Drafting and Negotiation, along with the insightful comments to it.
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The contract man! Put his blog in your newsreader and pick up his Manual of Style for Contract Drafting today. Today's post and comments follow.
I thought it worthwhile to scoop from the comments to my recent post on deal risk an exchange I had with Vickie Pynchon of the Settle It Now Negotiation Blog regarding the connection between drafting a contract and negotiating it.
Here’s the relevant part of Vickie’s comment:
I’ve been devising a negotiation class for transactional lawyers with a transactional attorney/negotiation professor in Northern California. I was surprised to hear him say that most transactional lawyers don’t possess negotiation skills—I always thought of them as the negotiation go-to guys. My new business partner says “no, they’re ‘write the deal up avoid risk’ guys.” That put transactional practice in an entirely different light. Do you think, Ken, that transactional attorneys would be better contract drafters if they were more involved in the negotiations leading to the deals they memorialize (or criticize)?
And here’s the relevant part of my response:
I’d flip your scenario: Instead of transactional lawyers becoming better drafters through being involved in negotiations, I suggest that they’d be better negotiators if their drafting were to improve. The urge to draft by regurgitating precedent constrains how you approach a transaction: you end up wanting to make your deal fit your precedent. If drafting were commoditized, lawyers could focus more on devising strategy and negotiating, and much drafting would be turned into a ministerial task.
In my experience, the problem with many transactional attorneys is that they don't possess the litigation or business experience that would help them better evaluate risks. In this vacuum , all risks are created equally, with predictable results on both drafting and negotiation. Commoditized drafting would certainly save some cycles, but hiring attorneys with more breadth of experience - and willingness to offer meaningful, risk-adjusted advice - would make a far bigger impact.
I find it downright frightening to consider that someone negotiates based on precedent language they have in their toolbox. That just seems so limiting.
But I would go one step further than Vickie's partner: virtually every lawyer I know sucks at negotiation. People confuse an ability to argue with an ability to negotiate. Lawyers are, via law school, trained to argue: to present their side in an indefatigable, perhaps even relentless manner. That's not negotiation.
So when a lawyer who has been trained to argue is asked to negotiate, all they can do is argue. Makes for a very frustrating conversation. I should know, I've been in thousands of these.
Interestingly enough, it's usually so severe a deficit that my opposing business person recognizes that their lawyer is ineffective and will, if asked in a gentle way, get their lawyer cut out of the transaction. How's THAT for being a poor advocate for your client?
Comments (2)
Read through and enter the discussion by using the form at the endPeter Friedman - June 4, 2010 8:44 PM
It's funny how different people encounter entirely different stereotypes. In the law school world I was kept away from the group designing a contract drafting course because I spent 12 years practicing as a commercial litigator and therefore, it is believed, I wouldn't know anything about drafting. Even after pointing out I'd closed deals several orders of magnitude greater than anyone else at the school and regularly been brought in to consult on deals with respect to litigation risks I had particular insight in, I continue to be viewed as a "litigator" and therefore not a "deal-maker." It seems to me a good lawyer is a good lawyer, and if you can't negotiate and can't draft then you're not a good lawyer. Argument isn't negotiation, that's for sure. And contract drafting isn't picking and choosing from forms.
Vickie Pynchon - June 6, 2010 12:43 PM
Thanks for dropping by to comment, Peter. I've always considered litigators - particularly those of us who spent our careers litigating the meaning and application of contract terms - to be incredibly valuable sources of information for anyone drafting a contract. Who better but the physician who treats the damage of unhealthful living everyday to weigh in on the best ways to avoid illness.
When you say "argument isn't negotiation," you are, of course, singing my song!