Friday, April 29, 2005

Friday. 5:00pm.

I think it's time for a beer.  Who wants a Guinness?

Thursday, April 28, 2005

NEGOTIATING WITH TRIAL LAWYERS

I'm a transactional attorney, so I don't like negotiating with litigators.   When you negotiate with a trial lawyer, one of three things will happen.
 
(1) You might be able to steamroll the trial lawyer with wonderfully favorable provisions because the trial lawyer doesn't understand transactions. 
(2)  You might have a difficult negotiation, where the difficulty arises from the litigator's focus on provisions that (a) are not really substantive, (b) involve little real risk or (c) have to be explained over and over. 
(3) Every step of the negotiation involves threats of litigation, allusions to evidentiary issues, inferences that your client is a crook.  And that damages the relationship between the respective clients.
 
Number (1) is not the trip to Disneyland it appears to be.  Most transactional attorneys I have ever dealt are, first and foremost, fair.  They won't to get the deal closed.  Even with an inexperienced attorney on the other side, we tend toward the reasonable deal, where all provisions are reasonable expressions of the desired transaction and the intent of the parties.  We just don't like to hide gotchas in the documents.  Number (2) is a pain in the ass, but smart trial lawyers understand what they don't understand, can be reasoned with, and once they comprehend the relationship of provisions in the documents, they can be reasonable.  Number (3) called me today.

Wednesday, April 27, 2005

DRAFTING

Why is that language that seemed perfectly clear when you reviewed it suddenly seems to mean something totally different when you have your client on the phone?  There's no telling what a court might say 3 years from now!  Yes, drafting contracts is an art and an imprecise one at that.  That's why clients that are unwilling to pay for careful drafting should assume complete liability for the same.  And that's why good lawyers will convince clients that good drafting is worth the time and the cost.

Tuesday, April 26, 2005

NOT ANOTHER LITIGATOR

As a business lawyer, you know you are in trouble when you get a call from counsel to the other side of your negotiations who refers to the matter as a "case" or a "claim".  Dude, we are just negotiating a severance package.  What "claim?"   But it doesn't mean they are bringing suit so much as it does mean the other lawyer may not practice much outside the courtroom.  And that can't make things easy or hard.

WHO NEEDS COPYRIGHT?

That seems to be the question on a lot of people's minds.  Who needs copyright law?  Why should it be enforced.  If you are preventing me from making copies of your research paper or your song, you're just a fascist.  I admit I need to read up on this, on Creative Commons and all that, but I just have the reflexive revulsion to the reform copyright movement.  It may not be fair, but it just sounds to me like people whining because they want the fruits of your hard labor for free. 
 
Anyway, it was Stuart Levine how made me think about this again.  You can also poke around at Stuart's site and learn some absolutely exciting tax information (despite smart aleck comments).  (Did I spell "smart aleck" wrong?  Should have gone with "smart ass").

SCI FI LAW

For some reason, I was just remembering this "law review" that I used to get about 10 years ago.  It was called "Sci Fi Law Review" or some such and was a rather serious endeavor to imagine the future.  And to do so in law review style, with scholarly looking articles, complete with fake citations and footnotes.  It was published out of some law school (maybe in California).  Don't know if they do it anymore, but I do remember a plethora of additional amendments to the U.S. Constitution, including a ban on abortion.  Yet, I don't remember it having a right wing point of view.  Maybe the abortion thing had something to do with technology making the practice obsolete.

WHAT UP? Just realizing how annoyingly boring practicing law can be. It's not all challenging intellectual puzzles. Often, it's simply the labor of drafting.

Alas.

Wednesday, April 06, 2005

BASIC AGREEMENT DRAFTING One mistake often made by novice or non-transactional lawyers - and it serves as a billboard announcing their inexperience - is the presence of covenant provisions within a client's representations and warranties. If you want to obligate your client or the other party, move the language out of the reps and warrantes. Reps and warranties deal only with factional statements about the party or its business. In an Asset or Stock Purchase Agreement, for instance, you need to put those covenants in a post-closing covenants section (look for covenants regarding what happens to employees at closing and put it there). If the covenant is pre-closing, it's probably best to make it a closing condition.

When I see a convenant about what happens if the Phase I Environmental Report gives you bad news lurking in the Environmental rep, I immediatly run to Martindale Hubbell to see if you're more comfortable drafting interrogatories or planning an estate. Then if I'm a seller, I go cap indemnification, add an indemnity deductible and add materiality qualifiers to the kitchen sink.