In my prior blog post, I mentioned that certain types of clients may be in need of greater assistance in separating issues that are or may be important from those that are less significant. No matter the client, however, it is crucial for the transactional attorney to be able to identify issues that are worth fighting over from those that are not (or, at least, are not worth fighting over for as long or as hard as other issues). In other words, a lawyer needs to be able to appreciate both where on a spectrum from insignificant to critically important an issue falls for a client, as well as the likelihood that the matter will be one the other party will be willing to negotiate. In doing so, the attorney can scale mountains where necessary and simply step over molehills.
Of course, this “issue continuum” will be different for each client and, likely, for each transaction for that client. The more you know about your client and how and why the transaction fits into their future plans, desires, and strategies, the better equipped you will be to determine where in the client’s range of importance each open issue falls. Communication with a client or a client’s representatives is crucial.
The client’s perspective is only one part of the question, however. The importance of specific provisions, and how much time and effort to invest in negotiating their terms, may also hinge on other factors such as: the likely relevance of the provision; the monetary considerations attached to it; the level of magnitude that the other party to the transaction places on the issue; and, in certain situations, whether the clause is one that applies to multiple transactions. For example, in negotiating a lease on behalf of a tenant for a small space inside a traditional “power” shopping center, there may be little chance that the landlord will modify the standard lease clause concerning the allocation of the award or awards with respect to eminent domain. Even if you feel the provision is unfair or unreasonable, unless you have reason to expect a taking may be likely to occur or there are specific, unique damages that your client might incur related to a condemnation, it is probably an issue in which you would be wise not to invest much time and effort.
While zealous representation is a cornerstone of the practice of law, clients greatly appreciate attorneys that understand the “real world”. Recognizing which issues are the most important and are themselves mountains that must be climbed to forge a deal, and which issues are molehills that can be avoided with minimal effort and resource expenditure, go a long way to making a lawyer a “Deal Maker” and not a “Deal Breaker” in the eyes of their clients.
by Todd A. Schafer, Member, Dawda, Mann, Mulcahy & Sadler PLC