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.

3 Comments:

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At 11:38 AM, Blogger Editor said...

Amusing and instructive post. I am a third year law student who has made the decision to pursue a transactional practice. That said, I may need to borrow your insight for future conversations with some of the more litigious classmates roaming the halls.

 

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