Professionalism Is An Asset: It Gets The Deal Done

  • Published: December 21, 2008
  • By Mark Morfopoulos

Most attorneys are very competitive by nature. They strive to achieve as much for their clients as they can in a negotiating session and in the final deal. Many lawyers feel that they must attempt to “win” as many points as they can when they negotiate an agreement. But is this really the best or only method for “getting the deal done?”

Getting past ego. The personality that a lawyer projects is often imputed to his or her client. For example, egregious conduct by an attorney may make the other party reluctant to deal with a client and ruin a deal. Although a particular position may be objectionable, the attorney conveying the position need not be unpleasant in delivering the message. Acting in a nasty or uncompromising manner may be clouding the message that a lawyer should be sending both to the client and to those on the other side of the negotiating table. An effective negotiator must understand what the objectives are for his or her client and be able to convey those objectives clearly and effectively. That is the reason he or she is representing that client. An attorney’s effectiveness is increased if his or her personality does not confuse other people’s perception of the issues presented. Acting in a professional manner allows the best chance for your client’s message to be heard loud and clear.

Too often, an attorney is driven by a personal desire to “win” without carefully considering a client’s interests. The attorney can be too caught up in the moment and may be trying to impress a client or intimidate the other side at every opportunity. While I am by no means advocating letting the other side run roughshod over you, it is not always in your client’s best interest to treat each clause, and every point, in an uncompromising manner. There is a fine line between being adversarial and knowing what must be accomplished to “get the deal done.” An attorney needs to know when to compromise and, more importantly, be able to comprehend the risks inherent in each transaction in order to discuss with the client whether the compromise is in its best interests.

Understanding the objectives of your adversary. A truly successful negotiator understands that it is critical to “know your opponent.” But, what does this mean? It means that in order to accomplish the most for your client, an attorney must be aware of what the “other side” wants and needs as well. I always tell people when I negotiate with them, “I will try to give you what you need, although I may not always be able to give you what you want.” An attorney cannot do this without understanding each party’s concerns and the legitimacy of those concerns. In the real estate context, the goal is to get to this “win-win” scenario, or as close to it as possible.

Having the greater bargaining power does not mean you should take advantage of your opponent. You know the old saying. “What goes around, comes around.” Many of us specialize in a particular field of law. Consequently, we work our trade with a “community” of lawyers that is not as large as one might think. If an attorney perceives unfair or unprofessional treatment by another, it may be remembered for a long time. Perhaps the next time you encounter this attorney, the tables will have been turned. Now the superior bargaining power has switched. How do you want to be treated when that happens? An attorney’s reputation and his or her way of doing business is one of the most important assets that can be brought to the bargaining table. Your own damaged reputation can hurt your client’s ability to get its deal done, on the other hand. If your adversary knows you have a reputation for professionalism, there is little need for anyone to ”posture,” and this will be a huge advantage for your client.

Form documents. Forms are typically one-sided. Often times, they are mechanically drafted without a thought of the other party’s legitimate business needs. How does that help your client? It does not. First off, it can create an antagonistic atmosphere that is not in your client’s interest. Instead of working to expeditiously meet each need of your client, both parties can become mired in extensive and wasteful negotiations over legal and business points that should have been considered, and dealt with in the original draft of the agreement. This can result in excessive legal fees and delays and can sometimes kill a deal that should have been made. Avoiding such pitfalls takes experience. An attorney must be familiar with the law, know his or her clients’ needs and objectives and, just as importantly, understand the adversary’s needs as well, while still knowing the difference between what is “negotiable” and what is not.

Be prepared. As any good negotiator will tell you, “be prepared.” Knowing why you want a particular issue resolved a particular way and being able to communicate that message to your client and to the other side is critical. Moreover, once you have a good handle on the desires of your client and all the other parties in a transaction [because frequently there is more than one person or entity who is a party to the deal] it becomes much easier to quickly resolve issues. Both parties can feel like they have realized their goals. The other party will also understand why you are asking for certain concessions and not feel that you are arbitrarily making unreasonable demands. The key is to really know what is important to both sides in order to finalize the deal. Thankfully, there are many times that you can “give” something to the other side that does not materially impact upon your client’s interests. It is also nice to know there are usually many points which mean more to your client than to his opponent and visa versa. This allows for a healthy “give and take” that can be critical to successfully and expeditiously reaching a mutually beneficial agreement. Strive to attain experience on working through compromises and learn what is important so that you can represent your clients effectively.

Obligation of good faith and fair dealing. Not only is it sound legal practice to avoid taking unfair advantage of another party, most jurisdictions either: (a) require some degree of good faith and fair dealing with an adversary; or (b) look unfavorably at an attorney who does not adhere to these principals. Lawyers may think they are being clever by inserting clauses that the other side does not understand or may not readily pick up upon. Courts, on the other hand, may not have the same appreciation for that attorney’s legal “skills” and may ignore such provisions if they yield a particularly unfair result. This does not help your client and may even give them a false sense of security that certain clauses are valid when that may not be the case. In addition, if you assume your adversary is competent and do not try to slip in a clause that may not be fully understood or which has results which are not intended by the other party, it can work in your favor in many ways. Most of us are not perfect. If you make a mistake, counsel for the other party is far more likely to alert you to this fact if you have a reputation for dealing fairly.

Achieving an agreement which is a win, win deal for all. Being professional, courteous, and prepared is always the best way to represent any client. In most cases, it will meet your clients’ objectives as well [and, if not, maybe you need to sit down with your client to discuss those objectives]. Those traits preserve your firm’s reputation as being one which understands that getting the deal done is not a simple thing. It is something, however, that, if it is done right, can add significant value to a client’s business.