In a perfect world, wouldn’t everyone’s lease or other agreement comments on behalf of the same party be identical (grammar and spelling aside)? Shouldn’t everyone working on behalf of a tenant, landlord, borrower, lender or the like know exactly what her or his “client” wants to see in the agreement? We suppose so, but a perfect world is still pretty far away. And, it isn’t a lack of knowledge (perfect knowledge?) that would result in different agreements for the same client and circumstances if negotiation were done by different people. There are a lot of factors. One factor is that for a lot of good reasons that sound much like “time and money” each negotiator would have her or his own impression as to what that particular client wants or needs. Another is that, for many parts of an agreement, it doesn’t matter – “six of one; a half dozen of another. But, the one that stands out to Ruminations is that those doing the negotiating will actually be substituting their own judgment for that of the party they represent.
Think about it. We make a lot of assumptions about what others want or need. Some of those assumptions are based on “the last deal.” Many, many are based on some general notion about what similarly situated persons would probably like to see in the agreement. Those are good guidelines so long as we truly understand the basis for our assumptions. That way, instead on making a “knee jerk” comment or suggested change to a proposed agreement, we really know why we are making the comment and whether it is appropriate for the deal in front of us.
So far, it’s all fine and dandy. But what if the judgment we are applying has less to do with the business interests of the “client,” and more to do with CYA – more to do with protecting ourselves from criticism or worse (and less to do with effectively and efficiently getting a deal done)? Let’s think about this. Have you ever done a deal, say a lease, for yourself? We have. It no longer surprises us how few comments we make in our behalf. For example, we don’t really care about provisions having to do with rent defaults. That’s because it isn’t going to happen and if it ever happened, it would be because we no longer had a business that needs the space. Besides, a landlord is entitled to receive the agreed-upon rent. Think about it, if for ourselves we don’t hack up a lease’s default provisions, what lesser items do we leave untouched? Often, we don’t bother “altering” our own lease’s alterations provisions if they permit reasonable alterations. After all, we know we aren’t going to make unreasonable ones.
But, when it comes to negotiating on behalf of a tenant (or a landlord), we (and almost everyone else in this business) mark these and many other provisions up like there was a giant sale on red pens. Do we ask those we represent what they want? We think not. We think most of us “protect” those for whom we work or, more often, protect ourselves in the guise of protecting our “client.”
Now, Ruminations isn’t advising anyone to work on a deal as if it were their own deal. That would be just as wrong. After all, everyone has her or his unique set of business needs (and perceived business needs) and everyone has her or his own risk adverseness level. There is a lot of overlap from party to party, but at the end of the day, every signatory to an agreement is a snowflake – similar in looks to many other snowflakes, but actually unique in shape. [This analogy may be even better than it first appears. Current scientific thinking is that while each snowflake has a unique pattern, snowflakes fall into only 35 shape categories.]
Where are we going with today’s blog posting? Simply, here’s what we’ve observed. Too few of us ask our clients what they really want. We act as if there are only a few “shape categories” within which they fall. We make assumptions based on our own concerns. In failing to really understand each client as its own snowflake, we commit two kinds of error, those of overinclusion and those of underinclusion. And, that means the client we are really serving is ourselves.
A billing practice that I’m seeing quite frequently now from lawyers representing tenants is to include with the invoice for professional services: (i) a black-lined version of the final Lease marked to highlight all the differences between (y) the Landlord’s initial draft and (z) the final fully executed Lease and (ii) a brief memorandum summarizing in plain English the top pro-tenant modifications that the tenant’s lawyer succeeded in obtaining for his client. The hope is that the client will see the good accomplished by his lawyer. If overdone, however, this exercise could have the adverse effect of dramatizing the minutia that some lawyers overemphasize.
As we all know, the problem is that the “minutia” sometimes becomes the reality of a dispute, and if something – anything – goes wrong with the Lease, a client will likely find some basis to blame the lawyer regardless of what the client has communicated to the lawyer upfront. Thus, the “cya” aspect of dealing with a document may often be prudent even if inefficient. This reminds me of the type of client who objects to a complicated piece of attorney work and says that he or she wants the matter handled in “one page” . . . but adds, “Protect me.”
By the way, let me hereby give a “hi” to Marc, with whom I had some dealings when both of us were very much younger.