Nancy and I have said that we raised ourselves. We were the babies of multi-kids families. I suspect that our parents, who were well beyond their 30’s when we came along, were just too worn out to pay us much attention. So we were left to muddle along by ourselves.
I won’t speak for Nancy, but my mother was blinded by the toxic relationship she had with her own mother, and my father, having struggled through the Depression, World War II, and his doctorate, was just too damn distracted.
During my junior and senior years in high school, Dad was teaching at Auburn University in Alabama. One weekend, Dad came back to Ft. Lauderdale, and we arranged to hit tennis balls with a tennis pro with a view to hiring him to give me lessons. It went well, and he agreed to do so…and that was it. Dad never got in touch with him. He was just too torn between his duties at Auburn and to my mother and our Florida houses and my grandmother’s demands and just never got around to it. I was too intimidated and meek to remind him. My tennis game was never what it should have been, but what does that matter now?
All of this leads to Nancy’s and my first jobs as lawyers. “Law firm management” is an oxymoron, at least when it comes to junior lawyers’ development. Nancy and I were speaking the other day of how “training” amounted to handing us a file and saying, “Don’t fuck this up.”
Recently I remembered a difficult assignment.
Tommy, a mid-level partner at my first firm whom you met in the post titled “A Fearsome Clash of Personalities: Passive Aggressive Division” (January 24, 2020) gave me the sale of a business to close. I don’t remember much about the circumstances. I believe that an older man needed to sell his business as he wanted to retire; he printed things, perhaps. He had a special needs child for whose care he had to provide as well. He had a quietly frustrated, sad graciousness to him: I’m in a real spot, but I can’t complain.
When Tommy held out the file to me, I looked at it and said, “What do I do now?”
“Negotiate!” he said jovially—he said everything jovially. Everything was “fantastic!” in his world. I stood in the hall holding the file watching him sprint away without a look back.
The buy-sell agreement was not as complicated as those usually were in that greed-filled decade of the 80’s, especially as it was just a small business. I don’t remember any of the content. My poor client must have assumed that the firm would assign a lawyer sufficiently competent to handle the sale of his business for a fair price.
In retrospect, Tommy probably gave it to me because he couldn’t make his hourly rate for the effort it was going to require. Instead, he’d let a young guy botch it, and if I billed too much, it was no skin off of his red nose to cut the bill.
I had no idea how to start. Law schools didn’t teach contracts negotiation in those days. (Now for instance UNC Law offers Law 467, Negotiation.) I had been in English lit, not business school. Tommy knew all of that. So what made him think that I knew what I was doing?
The lawyer on the other side was a nice guy: tall, thin, bright black eyes, dark curly Scots hair, and a gentle tone on the phone. I must have met him at some point as I have that memory of him. Then weeks—really, weeks—of negotiation of a contract that didn’t deserve it followed pretty much this discouraging pattern:
“What do you want?” Lawyer McDermott (so let us name him) would ask.
Frustrated with my own stupidity, I’d say, “The deal as written!”
He’d say, “But what is the deal?”
I’d try to enumerate a couple of points that I thought might please my client, but eventually the phone conversation would end with my saying that I needed to consult my client—there’s a novel concept!—and Lawyer McDermott asking gently, “Let me hear from you, George.”
I’d hang up, frustrated, embarrassed, and upset. I’d fold my arms on my desk and put my head down and try not to cry. Couldn’t I just go home? I had no fucking idea what I was supposed to do. My career as a lawyer was hopeless.
And then I’d avoid the whole thing for a week, a winning strategy and one to endear me to Mr. McDermott.
He must have been befuddled: why did this firm assign this agreement to this child? Eventually he must have figured that Tommy’s strategy was to assign an inexpensive lawyer to this mess and let him, McDermott, do my work for me and thus record all kinds of hours that he couldn’t bill in good conscience. I bet McDermott was pissed, but he was always gracious.
Just like I couldn’t ask my dad for tennis lessons, I couldn’t ask Tommy how one negotiated a contract. But he should have given me some guidance.
Here’s what no one told me and what I learned on my own: There were any number of questions to ask the client especially before I called the other lawyer. I’d want to ask the client what the context of the agreement was: what were his goals? What did he want to get out of this?
Then the particulars: Was this a sale of the stock of the company? Or just the assets? Did the liabilities go along? Could the buyer use the name? Were there trademarks or patents to assign? Were we selling customer lists, a physical plant, employee contracts? I had no idea that you were supposed to ask these things, which is insane. I had no idea what I didn’t know. The unknown unknowns, as a now-disgraced wit put it. (I console myself that at least I didn’t kill vast swaths of Iraqis.) What are the tax implications?
Then I should have read through the agreement carefully, and, using my knowledge of the pertinent industry (which in this case was zero), highlight the possible business issues—is the sale price, time of payment, etc agreeable? The other side is asking for assurances; are you comfortable making them? And then: what’s absolutely unacceptable?
What’s the other guy like? Does he have any hot issues I need to avoid, like baldness, impotence, a bored mistress?
I learned to see the agreement through my client’s eyes: what wouldn’t he see that I would need to emphasize? Given my later experience especially with Amazon.com, the business people don’t pay attention to agreements.
More, was there anything about the business that wasn’t apparent from what was in the file that I ought to know about? Had he sold any stock in the company in violation of securities laws haha? Were there lawsuits? Unpaid wages? Sexual harassment or similar claims, stuff that could hit a bottom line and must be disclosed? Oh, there was all of this and so much more!
But I didn’t know any of this at the time. I was at a loss. Maybe Tommy, never having taught this to anyone, was himself at a loss at how to do so.
I didn’t begin to learn any of it till a couple of years later when I became an in-house counsel at SAS Institute, Inc., a statistical analysis software company in North Carolina, where I negotiated contracts all day long. They had a simple form agreement and a black binder with all of the negotiation positions one could take. The manager of my department was a real sonuvabitch who forced me to resign (See September 19, 2019, “In Which I Appear in Some Sort of Advertisement”), but he sure was organized.
I don’t know how this negotiation ended. I don’t recall Tommy getting involved, so perhaps the deal went through. Or I scotched it by my incompetence, and I have suppressed the memory. That incident has proven the basis for a lot of nightmares I’ve had.
What a lot of stress: no idea how to proceed, no help from a partner, left alone to deal with a senior guy on the other side. Thank God he was nice and didn’t squash me like a bug, like other lawyers would.
No wonder my body parts are falling off, as surely as the knight’s in Monty Python and the Holy Grail. But I wasn’t as brave as that ultimately limbless guy.
The story gets happier, as they often do. Later at AIG, I was in a department full of insurance regulators, and they didn’t know about negotiating an agreement. We were trying to buy a brokerage, I think, and were worried about possible liabilities, specifically lawsuits against the broker. My boss’s boss wondered if we were going to have to search every courthouse in the country, which was absurd.
I walked by a conference room and heard my colleague Michael discussing it. I stepped inside and said, “Just have his lawyer give an opinion of counsel that there is no material litigation pending against the company. Then if he’s wrong you can go after his malpractice carrier."
They stared at me. I walked on. Later Michael came up to me and said, “Hey, you really added value there. You have a perspective that no one else in this department has.” I was grateful for his kind words; I was new there and hadn't felt as though I was fitting in or adding anything. Ironically enough, that’s the perspective I learned at my first job.
You grow. Eventually, I became so expert at negotiating software-related agreements that the guy I worked with and I agreed that it was boring to have to recite the same arguments over and over with supremely caffeinated baby associates of big firms in Boston or San Francisco. The industry should just agree on a number for each argument, so that instead of arguing for unlimited liability, the other side could say “32” and we could quickly say “46” back—liability set at $2 million. Then everyone could go have a pastry.
Not realistic for a lawyers’ negotiation. Too many women and people of color. Also, no one is shouting.
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