Lawyers: a user’s guide

New topic:  How to use lawyers effectively.    (I’ll get back to loan workouts and strategy in a separate thread soon.)

To use lawyers effectively, you have to understand a bit about lawyers:  what they are, and what their role is.   And how it differs from the general perception.  Most people’s perception of lawyers is pretty negative; many people in our industry love to hate lawyers in general, but cling to their own lawyers.  Why?

I’m not sure, but here are some guesses.  Let’s look at a few of the traits that give deal lawyers a bad reputation — or a good one. 

  • Some personality traits show up among lawyers that can be irritating.   There are lawyers who thought they were the smartest kid in the room, when young —  and thirty years later are still trying to prove it.    A disappointingly large number of lawyers are rude:  they interrupt, talk over other people, yell, and hate to lose.  Some seemingly cannot concede even the points that it makes sense to concede.   

(In a former firm, I had a partner — a brilliant if socially awkward specialist who I needed to use regularly — who could not stop interrupting our client in meetings.  Eventually, after explaining to my partner that this would happen, I started sitting next to him at all meetings, so I could kick him when he interrupted.   Hard.   Eventually that worked.  Eventually.   I did not charge the client extra for the kicking. )

  • That charming “lawyerese” speaking style.   Folks ought to be able to understand what their lawyers say.   But the form of English that lawyers speak is so precise that it’s almost the equivalent of an engineering equation or foreign language.   It’s just  irritating to hear lawyers saying words that you understand to be English, but that don’t make sense.

(By the way, lawyers are not the only offenders:  have you ever tried asking your doctor why he or she prescribed a certain medicine, and what the effects of taking it would be?  Did you get an answer that made sense to you?) 

  • Lawyers often don’t give a straight answer to a simple question.  Sometimes there’s a bad reason for this:  the lawyer doesn’t know and is stalling for time or thinking aloud. 

To be fair, at other times, there’s a good reason.  The law we have is only partly based on statutes (formal acts of legislatures) that provide a clear answer.  

The other part of our legal system is based on the “common law” — cases in litigated trials, then typically upheld or reversed on appeal; the appellate decisions lay down the decision, or holding, based on the facts of the case.  And each one is based on the specific facts of that case.  Unless the facts in your situation are identical to the facts in a case that applies in your area, there usually can be real uncertainty about whether your case would come out the same way.  It’s your lawyer’s job to help bring some predictability, by assessing how the rule’s likely to affect your deal — but not to show off how many alternative outcomes he or she can imagine.

  • Your lawyer is looking out after your interests, your opponent’s lawyer is an arrogant unreasonable jerk who is killing the deal.  OK, occasionally, this is true — but not every time.  That “death to the enemy” attitude rarely serves your interests, as an opening position in transactional work.   Often, the opponent’s lawyer is just doing what your opponent wants him or her to do.   Many clients use their lawyers as “bad cop” against their own “good cop”.

This is part of the bigger perception problem that the job of lawyers is to kill deals, or to get a better deal.    No:  their job is to get the deal you want, and get it closed, unless you want them to kill it.  What good transactional lawyers do is spot legal issues that could screw up the parties’ expected deal, explain them to their clients, and, most importantly, find ways to resolve them. 

Ultimately it’s much better to find out up front that something won’t work, so it can be fixed or worked around, than to enter into a deal that doesn’t work — after which, the parties end up in litigation and spend huge sums … which might make for happy lawyers, but rarely yields the deal you thought you’d get, at anything like the cost you hoped for.

Here are some things to look for and aspire to.

  • Good transactional lawyers bring their experience, in doing lots of deals, to bear on every deal.  They are practical, helping their clients structure deals so that the deals are more likely to get done.  They can share with their clients terms that tend to be acceptable in the industry, and boobytraps that have made others stumble.  They can advise their clients — if their clients are willing to listen — when the client is asking for items likely to be rejected.
  • Good transactional lawyers know what they know, but also what they don’t know, and are confident enough to bring in other lawyers with specialized legal expertise when needed.  They are well prepared, and don’t try to learn a whole new topic (on your dime) to serve your needs. 
  • They take the time to think through what the other side needs and wants.  They save their bullets for the issues that matter — so that you have the best chance of getting to the closing or resolution you want. 
  • Good transactional lawyers have a sense of humor — and humility — that lets them get along with others, even when negotiations are hot and heavy.  They are courteous enough to be easy to deal with — for the other side, as well as you —  and don’t let their emotional reactions to someone else’s objectionable behavior put the kibosh on the deal.  The best transaction negotiators are good listeners, carefully watch body language, and use what they learn for their clients’ benefit. 

And they can usually explain what they are recommending, and why, in plain English.


1 Response to “Lawyers: a user’s guide”

  1. 1 Greg E Schecher July 24, 2009 at 7:35 pm

    I have really enjoyed your postings. My partners ( two lawyers )and I recently formed CBA to provide business advice to commercial borrowers facing loan deafault, technical or monetary.We represent borrowers in negotiating loan modification, re-capitilization and asset sales. We are veteran cre participants and have seen this movie twice. Your insight into the current capital market disruption and your ability to state the position of borrower and lender is the best I have read. We believe as you apparently do, that this time around ( absent an RTC)circumstances require a cool business like presentation of the facts to facilitate an outcome that benefits borrower and lender. Maybe we will work through the majority of defaults by way of negotiated loan mod, short sale and loan sales.In any event I suspect there will be plenty of work to keep all of our litigator friends busy. I look forward to continued reading of your postings.

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Attorney Advertising. This blog is a periodical publication of Maura O'Connor, a partner of Seyfarth Shaw LLP and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult a lawyer concerning any specific legal questions you may have. The contents are intended for general information purposes only and represent the individual views of Maura O'Connor only. Any tax information or advice contained herein is not intended to be and cannot be used by any taxpayer to avoid tax penalties that may be imposed on the taxpayer.

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