Common Sense Solution (in place of a legal one)
If a lawyer offers a common-sense solution: Take it! And pay the bill with thanks. This is the best of all worlds.
Common sense is not necessarily the lawyer who says, "This isn't really a legal matter," or "You can't win. Why don't you let it go?" Quite a few lawyers can do that when they don't want the job.
The peak of common sense is the lawyer who can ignore a good profit, and say "Have you considered telephoning ... and saying ...", or "Do you think it might work if you drive over to ... and ..." Yes, it's unsolicited advice but at this point it's from a human being.
(I found common sense in the first legal encounter of my life, when I paid a lawyer $50 to look at a lease and tell me, "Well, I'm afraid it means what it says your lease is up this year. But why do you want to keep this place? Rents have dropped in that area, and you could rent a better building for less money." In other words, check the classified ads.)
A lawyer's most valuable service is getting you out of jail.
The second most valuable service is consultation. Hardly anyone gets through life without a situation where they need legal knowledge. It keeps you out of trouble; occasionally it shows an opportunity. Dollar for dollar, minute for minute, consultation is the best buy a lawyer can offer.
Lawyers are well accustomed to customers calling with a quick question; when the customer wants to understand the big picture, they become confused. Most of them would rather give fifteen minutes worth of free half-answer than charge an hour for a complete answer. You see the same kind of thinking in other businesses but at first blush it seems to run against the saying that "Advice is a lawyer's stock in trade." After dealing with them awhile you realize that they love to give advice, but hate to give information.
So make it clear what you want when you make the appointment. Prepare him. Let him know that it's more than a quick question he'll have to do some explanation but it's not the beginning of a long and expensive relationship. Otherwise he'll feel a compulsion to take charge of the interview (and scribble on legal pads) instead of thoughtfully answering your questions.
If he can't seem to get the idea, try another lawyer. Often you never do get an answer you end up calling several and then piecing together an answer from the various opinions.
Some of the best consultations I've gotten have been while lawyers were giving lectures or directly afterward, when I peppered them with questions. A lecture is a very different situation from an office consultation; lawyers have very little fear of malpractice, or any economic motive to withhold the hard facts. It's also different from a cocktail party conversation; they're on stage, and they know the audience is impressed by hard-hitting facts, not mush. Make the most of lectures. But don't think you have finally found a decisive lawyer; when you call him at his office, he could go right back to talking about "gray areas" and "tailoring a solution to your needs."
Absolutely true. It isn't that the lawyers are actually trying to kill the deal. They just want to address the possibilities, protect your interests, dot the "i"s, cross the "t"s and be a central part of the decision process, instead of a consultant. And they love to "one-up" the other party's lawyers; in this game, being the last one to add a clause gains them great face.
Killing a Deal
Lawyers want to represent your interests in person right from the beginning of the deal. This may chase away the other party in the deal, sometimes for the simple reason that he doesn't want to pay his own lawyer to review your lawyer's bag of tricks.
Usually the other party won't run for the hills at the first sighting of your lawyer. However, the actual contract may get him moving, especially if you let your lawyer "fully protect your interests" with a page of "shalls" and "heretofores." Extended contracts can scare the inexperienced, and often annoy the experienced.
The over-aggressive contract approaches a more certain doom when the other party pays his own lawyer some good money to come up with a counteroffer that he hopes will satisfy you and your lawyer shoots it down. Another round of counteroffers, stipulations, clauses, nickels, and dimes, and the deal is dead. An hour later the other party is whacking a ball down the golf course asking himself, "Why did I ever try to do business with that idiot?"
Know what you want from the deal.
Make a distinction between protecting yourself and asking the other guy to put his head in the guillotine. (Only the devil writes perfect contracts and even he gets tricked sometimes.)
Decide what you can expect to get or get away with. Your lawyer assumes the other fellow is an illiterate cretin. Is he? Will he miss the significance of clause #23? Where he is promising to "pay on your behalf" for virtually any lawsuit that might be brought against you, including ones that have almost nothing to do with the deal?
You should understand your own contract. That usually means paying your own lawyer to explain the legal implications of anything you don't understand. That's the way it is.
Consider avoiding ongoing contracts entirely. If the nature of a relationship is really a series of individual transactions, you might want to leave it that way, instead of making an agreement that could require you to do your part even if the other party doesn't do theirs.
To some business people prevention means never allowing their own lawyer to talk to someone else's without supervision the goal is to keep the lawyers from arguing back and forth until the contract is ten pages long and the deal is dead. Other business people don't let their lawyers talk to the opposition lawyers at all, but this can lead to other problems; until they talk to your lawyer, the opposition lawyers (who may be in control of their own customer) can persist in thinking they can demand anything, as though you were illiterate. In fact, keeping the lawyers apart can lead to the worst of all scenarios, in which you find yourself an errand boy for both lawyers: their lawyer tells you the sky is green, you go back to your lawyer, who tells you the sky is blue, then back to their lawyer, who says he meant the sky is green just on Thursdays, and on and on ... Nip this one in the bud; don't treat the opposition lawyers as equals unless they have authority to act.
And see FIRST USE, NO (p.tk).
Sometimes. Though lawyers rarely create a deal, they can often negotiate better than an inexperienced customer can:
- Within their own specialty (business, real estate, divorce, etc.), lawyers have a head packed with knowledge on what is considered acceptable and what isn't. Terms, clauses, financing arrangements.
- They're often meaner than the customers.
- They're sometimes more skilled in the tactics of deal making, such as juggling numbers to reduce the tax-man's cut, taking opposing lawyers out for expensive lunches, or getting busybodies out of the way by creating useless errands.
Even the experienced may feel they need to trot in a lawyer:
- When would-be "sharks" just can't get it through their heads that you understand the situation as well as they do. Perversely, these sharks often assume that a lawyer knows it all.
- To torment the competition and wear them down.
The lawyers who see themselves as "transaction lawyers" will place the most emphasis on making a deal. When they are being paid a percentage of the closing price, instead of by the hour, they develop an even greater interest in making the deal. This is a pleasant reversal from the image of deal killers, but there is one new hitch: like real estate agents, the lawyers may focus on closing the deal at the expense of making a good deal for their customer. If a business sells for 8 million dollars (at a straight 2% commission), instead of the 10 million dollar asking price, a lawyer could still collect $160,000. That's not as good as $200,000, but it's better than $0, which is what the lawyer will get if the business doesn't sell.
And Three Functions to Any Hired Negotiator
- Having a "front man" helps keep your cards covered, if that's what you want.
- A hired negotiator isn't emotionally involved.
- The competition is more likely to speak freely to a hired negotiator than a principal. (Though not necessarily more honestly.)
But when someone wants me to talk to their lawyer, I ask myself some questions: "Why am I talking to someone who doesn't have the authority to sign on the dotted line? Shouldn't I be speaking to the decision-maker? If the decision-maker is too busy to talk to me ... are there any alternatives? Would this time be better spent looking for a person or company who is more eager? If there's no acceptable alternative, shouldn't I call the decision-maker directly?"
Your own lawyer will almost always advise you not to call the principals directly. There may be a valid reason: perhaps you or the other principal are short-tempered, or perhaps the other principal will think you're weakening. Usually, however, your lawyer can't or won't explain his reasoning.
Talking to someone's hired negotiator particularly a lawyer always makes me weary; after all, I could be doing something productive, like taking a stroll in the park.
Describing Legal Problems
The law contains fine lines and traps. How many? A rule of thumb would be: people who know nothing of law underestimate the traps, and people who know a little bit overestimate them. In either case, the world's most decisive lawyer may still need the finicky details. They don't need your life story, but they do need all the relevant facts. I have seen too many lawyers shrieking, "You told them what?", as a naive customer drops a bombshell ten minutes before entering the courtroom. If you're the strong silent type, or plan to keep your cards covered, please read LIES BY CUSTOMERS, particularly the Deceiving a Lawyer section (p. tk).
Put the obvious or beneficial facts on paper; make a personal list of the bad news and give it orally. Prepare before office visits, prepare before phone calls. You'll use less of the lawyer's time, it's cheaper, you'll be less likely to miss something.
There is an additional, less obvious reason the lawyer is likely to redefine the situation in his own terms. Without a list of facts and questions, you can be side-tracked.
First Use is when you roll your lawyer into view before the other person.
The appearance of a lawyer has varying effects on people. To some it's intimidating. To others it's business as usual. To a third group it resembles a nuclear missile appearing over the horizon; they may react abruptly.
Regardless of effect, everyone is aware that you have brought a lawyer into the picture.
First Use, No
First Use is usually foolish when opportunity is knocking even when you foresee problems. These are the times to keep the lawyers out of sight.
- The beginning of anything promising car, house, business deal, adoption, whatever. If the money or consequences are serious, then do ask a lawyer to lay out the legal situation, or work out the ideal contract. Do it before you make any promises written or oral. But do it in private.
- When doing business with family and friends, never let a lawyer "represent your interests." Not if you want to stay on good terms with the family, or keep your friends. You may need a simple contract, in case one of you gets hit by a bus, but no more than that. If you can't trust someone close to you, don't do business with them.
- You're playing out of your league, and the sharks know it. The appearance of a knowledgeable lawyer frequently calms the feeding frenzy. (Bring in a rookie, though, and the sharks will close for the kill.)
- You want big concessions, and you're willing to risk killing the deal. (If you want reasonable concessions, just say so. If you're someone who loves that last little bit of horse-trading, then bring the lawyer in later. Some people take offense at renegotiation, though.)
- You're dealing with someone who is much too impressed by his own cunning. The presence of an authority figure may sober him up.
First Use, Yes
If you're unhappy with the way things are going.
For example, you want to kill a deal. This doesn't mean a lawyer can get you out of any contract; if you made the wrong agreement, you may be stuck with either a bad deal or a losing lawsuit. But in many instances, anyone who is serious about business will seriously reconsider doing business with you after a few torturous rounds with your lawyer.
Likewise, First Use makes sense when you are dealing with the type of business that routinely cheats its customers. Consistently dishonest businesses usually take a "win a few, lose a few" attitude. In predicaments like this, letters from aggressive lawyers can be a fast, cheap solution one of the company's supervisors will probably "review" the situation, and often finds that the lower echelon "misunderstood." Making an insurance claim is the classic example of this usage.
Or in a similar vein, when dealing with people who are bad apples, but not quite rotten. If these mealy apples know what they ought to be doing, but don't quite have the motivation that extra little bit of expert power may help them see the light. Some years ago a friend lent money to a couple of rock promoters, who failed to promote rock and neglected to repay the money. After much wasted badgering my friend hired a lawyer, one of the relaxed types, sub-species "old sage." The lawyer said he would give the impresarios a call; the next day he called my friend back and said:
"Well, they brought the money over."
"How much?" howled my friend.
"Oh, all of it."
"What did you say?" my friend asked.
"Oh, we did a little horse-trading ..."
And there is another, less aggressive type of First Use: showing people that you have a lawyer, just like they do (sort of like showing them you can afford a gold watch).
How to Reduce Productivity
Ever fertile, the human mind has created infinite ways to reduce productivity. Here are a few of the most common:
Call daily to check up. This will waste the lawyer's time, and help him lose track of the goal.
Change your mind regularly. Re-define the purpose of the job. Eventually this will un-define the job.
Bring the lawyer another job before the first one is finished. He'll work on whichever seems more urgent, which is fine and move the other one from the front of the line to the back of the line, which is not fine.
In a further possibility, he may bounce back and forth between the two jobs, without ever grabbing hold of one and finishing it. (Multiple jobs also make it hard to decipher the bill. Lawyers know this and often use it to their advantage.)
Be nice. That way the lawyer will push your work to the back burner if he is short of time. Later, when the crisis approaches, and you begin to press, he'll resent you for being pushy. (Meanwhile, the tough-but-fair customer will have his job done, and have called to say thanks, whereupon the lawyer will remember that "He wants results, you know it, must be a winner ... but he's really pretty nice once you get to know him.)
The billing computer is probably turned on, so keep the call brisk. Write down the questions beforehand. But don't let the lawyer rush you; get your questions answered. Consultation is cheaper than getting the wrong job done.
See HYSTERIA (tk).
Proceeding, Against Your Lawyer's Advice
Law like life in general contains endless possible troubles. In life we learn that some of the possibilities just aren't all that important.
Likewise, legal considerations aren't always that important. Sometimes a problem seems less serious after you've asked a few questions, so you decide to ignore the lawyer's advice, or take only part of it. Meanwhile, he's giving you cautionary glances, mumbling "gray areas" and "it's not that simple ..."
But it is that simple. You'll never know everything there is to know about the situation. As in the rest of life, sooner or later, you have to take your best shot.
When? It depends but there is one theory I keep coming back to:
Line up your ducks. When the big ducks are in line ... shoot.
Legal Project Management
There are tasks, like writing a simple will. A task isn't defined by the fact that there's only one product. It's because once you and the lawyer finish talking, there's only one thing that needs doing sit down and write the will.
From the customer's point of view, it's a task if you understand what you're getting, when you'll get it, and what it will cost. You keep notes and a file, of course but you feel comfortable with a rough plan of action.
A project contains many tasks. It might be a lawsuit. It could also be a will for Howard Hughes. You know what you want, perhaps but you're not sure if that's what you're getting. As to when and how much, you're lost.
If that describes what you're getting into, you need a project mentality. You're the general contractor. The lawyer is the subcontractor. You want the big three of any project:
The Right Results, On Time, Within Budget
The lawyer may tell you the job is routine. Fine. But if the complexity makes you uncomfortable, it's a project.
THE PROJECT PLAN
Defining the Question
See INTERVIEWING (p.tk).
Defining the Project: This is the point where you need new methods.
Ask for a description of the steps to completing the job. Make a timetable as you listen. This may look like alphabet soup on a string a list of motions, filings, writs, etc, with dates scrawled after them. At the end, though, there should be a word that makes sense: "Finished!"
Go back to the beginning, and ask the lawyer "What is the worst that is likely to happen?" Get a rough timetable and cost for the worst scenarios. You may have to be persistent.
Go or No-Go: Does the boss (you) approve this solution?
Tell the lawyer you'll get back to him, leave, and think it out:
- Do the steps make sense as you read the consumer legal dictionary that you bought this afternoon?
- Does the timetable add up?
- Does the money add up?
- Is this going to get satisfactory results?
- Is a legal solution best?
If you call back with a "go," then "agree" on the goal of the project. Before hanging up, you want to hear the lawyer say the same thing you're saying, in words you can understand.
Production: Making it happen now the timetable is boss.
Get a soft pencil, a big eraser, a ruler, and a big piece of paper. At the far right side of the paper, write "Finished!" Then start filling in the big three:
- Starting from the left, write down the things that need to happen to reach the finish. Make a box for each "milestone." Write the date it's supposed to happen above the box. When the task is done, check off the milestone box and write the date. Watch the dates.
- Write the total quote under "Finished!"
- As you cross each milestone, add the running total to the timetable.
Ideally the running total is coming off the monthly bills. If there are no monthly bills, estimate the billable hours, from your own notes. And ask a few questions, like "What's the current bill? Are the costs on track?" You may have to persist a bit; lawyers tend to answer money questions with "I don't know, the billing office handles that."
Look ahead when you get to "Finished!," will the billable hours add up to the quote? Or is the bill getting ahead of the work done? If the bill's getting too far ahead, it's time to give the lawyer a call and ask why.
- Along the bottom of the sheet, write your comments on how things are going whether you're on track for the right results. These are your opinions, not the lawyer's. Basically, the comments should tell you that you're happy.
- Keep going until you cross the finish line.
By the time the project is over, the chart will be a mess. Very few project plans survive contact with reality. But project charts do have a way of getting you to the results.
Figure on spending an hour or two a month on this. This is probably about the same amount of time you'll spend worrying if you let the lawyer handle everything. God forbid that you not worry; this suggests your mind has been paralyzed by the lawyer's mumbo-jumbo.
Managing the project is also a form of managing the lawyer.
Getting a lawyer to finish a job is somewhat like getting a rebellious 12-year-old boy to finish the chores, with one difference a lawyer's neglect shows up with unpleasant speed and consequences.
Let the lawyer know you have a calendar. Don't let him know you have a timeline laid out, or he may just leave scheduling to you.
July 18, 2005: The rest of the book will come on line over the next three months.
To Table of Contents Ordering a hard copy of Dancing with Lawyers.