8 Biggest Mistakes Made by Transactional Attorneys that Prevent Them from “Getting the Deal Done”

As a transactional attorney, I am glad to say that I almost never see the inside of a courtroom. Appearing before a judge was never high on my list – in fact it wasn’t even on my list – of things I wanted to do once I became licensed to practice law. Know your strengths and limitations, right? That’s what I was always taught. For me, my strengths can be found in transactional work—in working through deals, sorting through negotiations and, most importantly, seeing them through to the end and getting the deal done for my client.

I’ve been on all sides of these transactions. I’ve represented lenders, borrowers, landlords, tenants, subtenants, sellers, buyers, etc. In all of these matters in which I’ve been involved, I’ve seen the same mistakes made over and over and over again, by first year associates, more experienced associates, and even by partners – mistakes that accomplish nothing other than creating a more adversarial relationship and delaying the deal from completion. This inevitably not only drags out the matter, but also increases the legal fees for all parties involved.

Here you will find a list of the eight most common mistakes that prevent transactional attorneys from seeing their clients’ transactions through to completion on a timely basis.

1. Sitting back and letting things move along at a slow pace. Be proactive and take the bull by the horns! Is a redraft of the lease or mortgage or acquisition agreement needed? Offer to do it rather than waiting for your opposing counsel to do it. Remember, if you are the one doing the drafting, not only are you in control of the document and what it says (as well as how it says it), but you are also in control of moving the matter forward without further delay.

2. Letting perfection be the enemy of the good. You want the best. The best lease, the best mortgage, the best agreement. We all do. Quality is important, don’t get me wrong. But remember that “perfect” is a moving target, one that’s almost impossible to hit. Extensive procrastination, among others, is one common consequence of pursuing perfection. When you spend so much time looking for the “best” deal or the best language for your client that you never actually do anything, you’re sabotaging your client’s transaction. It’s better to shoot for “good enough” today than to aim for “perfect” tomorrow or next week.

3. Not understanding your client’s business. If you don’t understand your client’s business, you cannot effectively negotiate on their behalf becomes you don’t know what issues come up in their industry. You need to keep abreast of the industry as well as of any changes in your client’s particular business operation. Even better is to understand not only your client’s business but the other party’s business as well, so as to ensure that, in trying to get a “small” win for your client, you’re not causing a big “loss” for the other side. It’s helpful to understand their concerns as well.

4. Not being in a position to know what’s important to your client. Knowing what issues are important to your client will help you avoid backtracking later on, and gives your client the confidence in you that you know their hot spots and can make decisions on their behalf and not have to bother them with every decision or negotiation. This also makes it easy for the principals on each side of the transaction by narrowing everything down to only a few issues that may be of the most significant importance to them.

5. Losing the forest for the trees. If you start your negotiation with 100 issues to resolve in order of priority, and you manage to successfully resolve issues one through ninety-five, that doesn’t make issue ninety-six take the priority of what was issue one. Issue ninety-six is still issue ninety-six.

6. Saying “no” without understanding why you’re saying “no.” Don’t say “no” just for the sake of saying “no” without considering the substance of the issue at hand and when, at the end of the day, you may wind up saying yes. It’s not helpful to anyone if you say “no” because you don’t understand the issue or you haven’t figured out what it really means. Don’t be afraid to tell your opposing counsel that you don’t know and you have to consider the issue to determine if it really affects your client’s interests. You can always say “no” later on. People think that once they say “no,” they need to stick with and defend that position even if they later feel that saying “no” was the wrong decision.

7. Being so tied to your form of agreement that you’re utterly inflexible. The fact that the same agreements have been written hundreds of thousands of times, each with a different set of words, is clear evidence that if you have an agreement but the words are getting in the way, you should just use different words! Don’t get caught up in minutia.

8. Forgetting that we’re all in this together. In the end, all parties, really, are on the same side – the side that wants to make a deal that is acceptable to all parties involved. Everybody benefits when the deal is closed. Sellers get money, buyers get property. Landlords collect rent, tenants have a place in which to do business and start making money. Lenders make more loans, borrowers have money to invest in their businesses. Everybody wins when the deal closes, even more so when it closes smoothly. Don’t forget the common goal of all parties involved of seeing the matter through to the finish line.