I'm lifting the entirety of Ken Adams' post The Connection Between Contract Drafting and Negotiation, along with the insightful comments to it.
I thought it worthwhile to scoop from the comments to my recent post on deal risk an exchange I had with Vickie Pynchon of the Settle It Now Negotiation Blog regarding the connection between drafting a contract and negotiating it.
Here’s the relevant part of Vickie’s comment:
I’ve been devising a negotiation class for transactional lawyers with a transactional attorney/negotiation professor in Northern California. I was surprised to hear him say that most transactional lawyers don’t possess negotiation skills—I always thought of them as the negotiation go-to guys. My new business partner says “no, they’re ‘write the deal up avoid risk’ guys.” That put transactional practice in an entirely different light. Do you think, Ken, that transactional attorneys would be better contract drafters if they were more involved in the negotiations leading to the deals they memorialize (or criticize)?
And here’s the relevant part of my response:
I’d flip your scenario: Instead of transactional lawyers becoming better drafters through being involved in negotiations, I suggest that they’d be better negotiators if their drafting were to improve. The urge to draft by regurgitating precedent constrains how you approach a transaction: you end up wanting to make your deal fit your precedent. If drafting were commoditized, lawyers could focus more on devising strategy and negotiating, and much drafting would be turned into a ministerial task.
I invite you to wade in.
In my experience, the problem with many transactional attorneys is that they don't possess the litigation or business experience that would help them better evaluate risks. In this vacuum , all risks are created equally, with predictable results on both drafting and negotiation. Commoditized drafting would certainly save some cycles, but hiring attorneys with more breadth of experience - and willingness to offer meaningful, risk-adjusted advice - would make a far bigger impact.
Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all types of business torts and contract disputes. During her two years of full-time neutral practice, she has co-mediated both mandatory and voluntary settlement conferences with Los Angeles Superior Court Judges Alexander Williams, III and Victoria Chaney. As a result of her work with Judge Chaney in the Complex Court at Central Civil West, Ms. Pynchon has gained significant experience mediating construction defect litigation. Ms. Pynchon received her J.D., Order of the Coif, from the U.C. Davis School of Law.
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