Pie-Eyed Romanticism And Negotiating Agreements

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Do you believe in levitation? Can a table really rise on its own, without trickery? Is it possible? Yes. Is it probable? No.

A table, regardless of the material used to construct it, is a collection of atoms, arranged in molecules, etc. Briefly stated, atoms vibrate. They vibrate in all directions. No single atom has enough energy to move the table, and the directions in which the countless atoms in a table vibrate cancel each other out but for a proportionately very small number without enough oomph to move anything. Basically, their movement is random. But, it is possible that at any one moment, all of those atoms or at least a meaningful number will be moving upward at the same time and the table will lift off the ground. Possible, but not probable. Ruminations suggests that no reader stay up all night watching a table to see it rise on its own.

Yet, too many of us let possibility, not probability, drive our negotiations and documents. Yes, lot and lots of things can happen, but many are very unlikely to happen. Our analysis must be based on the relationship between probability and the severity of result, not on “but, it could happen.”

There’s a story about a doctoral student who was determined to write the definitive history of China as his thesis. So, armed with fluency in all of the major tongues there, he traveled to the country and explored every one of its nooks and crannies. Satisfied that his research was complete, he returned to the same seaport where he had arrived four years earlier. He was a little early for his ship’s departures, so he took to a local bar for a departing drink. There, he met an old seafarer who shared a story never before heard by the student. He hadn’t even heard anything like it despite his extensive travels in China. So, he knew he’d have to go back into the countryside and find out more. After all, his thesis was going to present the definitive history of China.

We’ll save readers the pain of hearing a shaggy dog story. As some already expect, the student spent another four years exploring China and collecting information about its history. And, yes, as some already suspect, he arrived early for his voyage, had a drink, and heard another story never before heard by him. He’s now in his early eighties and about to conclude his research as yet another sailor is telling him yet another story.

Our leases and other documents can’t be like the definitive history of China. We shouldn’t be creating lists, mental or written, about everything that is possible. We can’t be guided by every “war story.” Landlords and tenants, lenders and borrowers, and parties of the first part and parties of the second part need to move on. The business of business is business, not documents. From time to time, we think about the handful of leases we’ve seen from 100 years ago, ones that were typed, not word-processed. Some we’ve seen were quite good, really quite good. They were also short – no cut and paste, no forms – just good and practical thinking.

Are we brave enough to simplify our negotiations and documents? Yes, that’s possible, but not probable. But, is it possible to move the line closer to the probable? Ruminations thinks and hopes it is. Is there any reader willing to take the risk and sign on?



  1. I’m afraid the probability of success for this call to arms (no pun intended) is similar to the probability of sensible gun control – i.e. quite low.

  2. Elliot L. Warm, Esq. says:

    The problem is that if something goes wrong, no matter how improbable, and is not properly dealt with in the document, the attorney gets the blame. Clients hate when there are four pages of a lease about condemnation, but you never know for sure what’s going to happen. Almost by the very nature of things, lawyers have to be somewhat impractical, while their clients deal with the meat and potatoes of a deal. That said, I do understand the basic point about not covering the definitive history of every clause known to mankind, and the nature of a particular deal must be considered. The 60-page lease that you may find from a New York city-kind of law is necessarily repugnant to the tenant who is leasing, say, 1,000 feet, and the lawyer needs to be cognizant of what is practical and what is only a remote possibility.

  3. Ira, here is my shaggy dog story. In defense of “lawyer-ing”: There is extreme behavior at either end of the negotiating scale, by that I mean one can “over-lawyer” at one end and “under-lawyer” at the other. A common experience is when an experienced lawyer is dealing with less experienced real estate people. When you’ve reached an impasse on an issue and the client asks “how often does this happen?” – as if there are statistics on this – then you’ve lost your support. The real estate person is fearful that the lawyer is in the way of the deal. An experienced real estate lawyer should have a sense when he or she has done enough to eliminate the major portion of a risk without taking it to the extreme. More than once I had a client who initially complained that a deal was being over-lawyered but when he actually read the proposed lease, he wanted to make it tougher – I had compromised too much, even though I thought it was a reasonable concession. Another client, when considering abandoning a location for which a lease had been signed, practically kissed me when he read the default clause because it contained a protective provision that he said no other tenant had ever secured in that jurisdiction. I had never consulted him on the issue – it was purely a “legal issue”. Had I done so, he would have asked the question; “how often does this happen”? The attorney gets blamed either way – why didn’t you protect me? What I do now is document every time a concession is made by a client against my advice. Otherwise, you end up as a defendant in a malpractice suit when “this happens”, as was the case with a colleague of mine. In defense of real estate representatives, those who are more experienced understand the necessary partnership between the lawyer and the business person and there is mutual trust.

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