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.