One Way How Not to Get The Deal Done (At Least, Not Quickly, Efficiently or Effectively)

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Mea Culpa. I’ve espoused the following principle for years but, on occasion, forget it myself, though less and less often. So, if nothing more than as an invitation to any reader who might be on the other side of a deal from me to remind me about it and to smack me back on track, here it goes.

Let’s say that you can make a list of your comments to a document, whether it be a loan document, a lease, a purchase contract or any other kind for that matter. Also, let’s say that you can rank your comments from number “1,” the most important one, to number “100,” the least important one. OK, don’t attack me just yet, go with the assumptions because if you can’t exactly rank them, you certainly know the difference between number “1” and number “10,” etc.

Now, negotiate vigorously – resolve, by compromise or otherwise, items numbered “1” through “95,” leaving only “96” through “100.” Pat yourself on the back! Pat your negotiating opposite on the back!

Now, the punchline. Not the humorous one, but the real one to think about. [A punch line (or punchline) is the final part of a joke, comedy sketch, or profound statement, usually the word, sentence or exchange of sentences which is intended to be funny or to provoke laughter or thought from listeners. – source, Wikipedia]

Do you renumber numbers “96” through “100” into “1” through “5” and start fighting again? Come on, admit it – of course you do. Maybe not “1” through “5,” but how about “4” through “9.”

Here’s what I figured out – items “96” through “100” are still items “96” through “100.” I’ve been trying to internalize that for years and am often, but not always successful. When negotiating on behalf of someone else, I need to share that thought with them because, if I don’t, then I have no choice but to make those items “1” through “5” because the deal isn’t mine; it is theirs.

That’s it for today – probably a record for this Ruminator – a short Blog entry.

Does this make sense? Do you have any negotiating pitfall-advice to share? If you do (and I know you do), please add them at www.retailrealestatelaw.com.

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  1. I have a great story for you Ira. Several years ago I was negotiating a fairly substantial office lease (I was representing the Landlord) with a lawyer who thought every comment was a major deal point (even coming down to changes in punctuations). Not only was he over-lawyering the deal, he was not very pleasant to talk with – why are people nasty, don’t they get it, that truly you get more with honey then you do with vinegar, anyway that probably is for another blog. Back to my story: I got so tired of going back and forth with this attorney that I actually took his latest red-lined version of my lease (I think we were on number 12), removed the red-lines and sent him back his own lease, without having made any modifications to it — do you know this guy actually commented on his own comments and sent me back another draft! You cannot make this stuff up!

  2. Years ago I submitted to the other attorney my comments to a document. This is how our first conversation went:

    Him: ” I won’t make any of these changes.”
    Me: “Why don’t you tell me WHICH comments you object to and we can talk about it.”
    His response: “No, to everything. We aren’t changing the document.”
    My response: “Really? You aren’t willing to change the typo in the second paragraph?”
    Him: “No, that’s ok.”
    Me: “What about the double punctuation in the 4th paragraph?”
    Him: “No, that’s ok.”
    Me: “And the reference to the wrong section?”
    Him: “No, that’s ok.”

    Me: “Ok. So let’s start again. Which comments do you object to?”

    Answer: ” All of them. We aren’t making any changes to the document.”

    Eventually I got him to negotiate the document. I am not sure if he was uncomfortable negotiating. Hadn’t actually read the comments. Just got direction from the client that he was unwilling to change the document or what. But it always seemed silly to start from a place of “NO” for no good reason.

  3. David G. Korn says:

    When I review a document, and when it is understood that all parties are going to have their say on changes, I always start off by stating, “I will address my concerns in the order of their appearance in your draft.” I avoid ranking my concerns and suggestions for changes. By avoiding that “1 through 10” or “Most to Least Important” rubric I avoid giving the appearance of intransigence as to any particular point, and thereby at least delay, and possibly eliminate, real conflict or a break-down of communication. The other guy thinks I may be tedious or persnickety — So what? It appears to be more honey and less vinegar, and gets us wrapped up faster.

  4. tom barbuti says:

    How does anyone have 100 comments to a simple lease?

    Tom

  5. Harvey M. Haber, Q.C. – My former brother-in-law, an American Attorney, had a sure fire method of negotiating a major point in a commercial lease on behalf of the Landlord. He would pick an item (such as the cost of the Landlord painting the walls) which was not an expensive item, but which got everyone involved in arguing the point, until someone pointed out the actual minimal cost to the Landlord in doing so. Everyone was so embarrassed that they had spent so much time on a matter that did not cost that much, that the next point in the Lease, which was very important for the Landlord, passed through without objection.

  6. Marc Ripp says:

    I recall reviewing for a tenant some years ago a killer Manhattan office lease in PDF form containing over 150 pages (not counting exhibits) that was printed in miniscule typeface with ink that got progressively lighter and more faded with each passing page. The 1st item to negotiate with landlord’s counsel was getting the document in a legible word version.

  7. I recently had an attorney at one of NJ’s largest law firm tell me that if I didn’t accept a $1000 offer to release a judgment lien held by my firm against the seller of real estate then we would receive nothing. In response to that threat, I filed a motion requesting the appointment of a receiver over the seller non-profit corporation. Within 36 hours of filing the motion the offer was increased to $5000 and then to $7500. Within 72 hours of filing the motion I received a check for $7,500. Sometimes you have to stick to your guns to get what you want, so long as you’re accepting of the negative result that has been represented, or in my case threatened.

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