The Best Question You're Not Asking

When you're a business lawyer, it's not quite accurate to say that you spend hours reading contracts. You spend a lifetime. Worse, for every contract you review, there are normally at least three. There's the contract you read (or drafted) originally, there's the version containing the other side's revisions, preferably redlined, and then there's the version you build off of that. It's a written and micro-focused negotiation conducted in agonizing slow motion.

What frequently gets lost in the exchange of competing drafts is honest-to-God, real life communication -- not between the lawyers, but between the people who really matter. It's the business people making the deal. The lawyers work for them. The business people need to figure out the terms. It's the lawyer's job to make sure that the documents protect each side without getting in the way.

That's how it's supposed to work, anyway. Here's what really happens.

Company A sends a contract to Company B, which then turns it over to "legal." About a decade and a half later, Company B returns fire with a heavily revised contract which Company A then forwards to its lawyer. Seasons change. Empires rise and fall. People, in the prime of life at the inception of this process, grow frail and weak. Company A then returns a re-revised draft, again with redline comparison.

I've seen Stockholders Agreements negotiated for 3 years. I'm not proud of this, but I once had to include "comparison of version 19 with version 18" in the name of a document.

I once negotiated a Stockholders' Agreement with a lawyer who insisted that my client lose everything if his client's father ever found out about it.

What I've learned over the past three decades as a business lawyer is that there is one question that cuts through most, if not all, of the issues that keep contracts from getting done: "What are you afraid of?"

(I know it sounds simple, but hear me out.)

Legalese is broad form English. Because of a lawyer's natural role as a risk manager, they tend to draft sweeping provisions which feature such phrases as "including, but not limited to" and "any and all." A lawyer won't just write the word claims when instead he can write losses, causes of action, damages, and/or claims of any kind or nature whatsoever.

That's where the impasse happens. One side can't agree to the sweeping language and the other needs the protection. This is where you ask the question. Get the other side in a room or on the phone, let the business people talk, and say: "forget about the legalese. What about this issue is really keeping you up at night?"

I've heard it time and time again. "Oh, I didn't know you were concerned about that. We can add something to deal with that." Problem solved. The first truth is that when business people drill down to their primary concerns, one side can usually live with language protecting the other side from its chief worry.

The second truth is that, in the flurry of documents and redlines, the most common sense question is never asked.