Energy infrastructure construction and the deal-friendly contract lawyer.
Some business attorneys approach contract drafting and negotiation with an adversarial approach. In other words, if they represent a seller in a purchase and sale transaction, they draft a document that is slanted/biased in favor of the seller, fully expecting the buyer’s counsel to come back with a polar-opposite document slanted to favor the buyer. Why? Ultimately, what’s really going on here is that these two attorneys are wasting time (and your money) when they both fully know they are going to end up somewhere in the middle.
You can see why this approach isn’t really in your best interest. In contrast, a “deal-friendly” attorney knows where the middle is to begin with, and in order to be efficient and save their client costs, they approach the negotiation in a well-reasoned manner.
My client, a small family-owned company is buying an existing business and is currently operating a nationwide construction service company. The seller has engaged experienced big-law counsel from Chicago and we have received a draft purchase and sale agreement from that lawyer. The draft agreement is a one-sided seller favored form of agreement. In any event, my client has done their due diligence and wants to buy this existing business.
Why was a Seller-Friendly Document Provided?
We are educated in law school to be a zealous advocate for our client. Many “old-school” lawyers have historically taken that to mean, as quoted from one of my law school professors: “When the facts are on your side, you pound on the facts; when the law is on your side, you pound on the law; when neither the law nor the facts are on your side, you pound on the table!”
Consequently, many lawyers believe that to be a “zealous advocate” one must fight tooth and nail for every inch of ground in every contract, in every situation. In addition, many big-law lawyers and firms have a fixed overhead and infrastructure that needs to be covered, including the education and feeding of newer lawyers that have joined the firm. Partners and senior lawyers are often required to keep the firm’s junior lawyers busy.
In consultation with the client we discussed alternative approaches to handling the transaction and the appropriate response to the seller biased draft agreement.
The client chose to offer in return a deal-friendly approach to the agreement that instead of taking a polar opposite position was designed to efficiently and economically present a purchase and sale agreement that was fair to both parties, while still protecting the client’s interests. One reason for this approach was that the business owner had a keen interest in continuing his current business and did not have the physical nor financial resources to engage in a long and drawn-out negotiation.
As is often heard, “just get the deal done!”
Upon receipt of the returned document, Chicago counsel was not heard from right away. A telephone call to that counsel produced the response that they really had no substantive objections to the draft and were working toward pulling together Seller’s documents required for closing the transaction.
Approaching business negotiations in an adversarial manner may be the status quo for some attorneys, but your business deserves better. By saving you costs where you don’t need them, a deal-friendly attorney can help you consistently come out ahead on negotiations. If you have any additional questions about business negotiations or wish to discuss other related legal issues, call Stephen Rizzieri at 214.434.1017 or fill out the form on our site today.