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Part II

My last post set the stage for some discussion on the utility of bulky agreements when papering up deals. There are lots of reasons to do this. Attorneys wouldn’t be able to charge what they do if there wasn’t some real value in their work. Let’s first recognize that attorneys set themselves to the task of identifying potential risks and preparing a defense against that risk. That preparation takes the form of a written agreement between the parties to a transaction. Agreements also have the salutary effect of defining key terms that each party can refer to in future discussions as they clarify how the deal is evolving. One might think of agreements as being in some ways similar to body armor. Experts have studied the body’s form and function and identified which areas of human physiognomy are most critical to the body’s functioning and are most vulnerable to attack. They looked at the different forms of attack that are most likely. Then these experts then set about devising a product that would protect the most vital areas of the body from the most likely forms of attack. The more risk you perceive, the more you will want body armor that is strong and comprehensive. So why would you ever want anything less than maximum protection? If you know a police officer, ask him to let you try on his riot gear. In addition to being expensive, it’s heavy, hot and uncomfortable. Its bulk, required to protect you, also impedes your movement, slowing you down and making you less nimble. In some situations, having too much body armor could actually work against you and become a disadvantage.

Papering up collaborations and transactions reflects many of the same dynamics. Preparing a “bulletproof” agreement requires a lot of time familiarizing the attorney with the transaction and then a lot of attorney time thinking through the specific risks that could arise in this particular transaction. The language used to describe precautions for certain risks may be complex, bulky and difficult to understand. Agreements themselves may grow to include hundreds of pages, including often confusing cross references to other sections and definitions of terms. Presenting such an agreement to a potential business partner may cause quite a reaction. First, it makes the deal more expensive – it will communicate to the other side that they will have to incur some substantial legal expense to have their own attorneys review the document to look for areas that they find to be unfavorable to their interests. If the partner is not accustomed to dealing with attorneys or complicated agreements, he or she may decide not to proceed with the deal. I have seen this a number of times with international parties whose local business customs are based more on codified laws than on agreements between the parties. Second, it may introduce something of an adversarial spirit to the deal and detract from the collegial enthusiasm that accompanied the deal up to that point. I would say that this development, in proper bounds, is somewhat healthy, as it helps business partners remember that each actually does have many opposing interests and that deals can go bad. Finally, you may end up making the relationship so rigid and guarded that it becomes difficult to function.

The good thing is, it does not have to be all or nothing. As military and law enforcement personnel select body armor that is appropriate for their particular activity and situation, small business owners can develop a strategy for papering up deals that matches the needs and dynamics of their industry, management style and legal environment. You do not have to provide for every conceivable misfortune in each agreement. Over time you will develop a feel for the protection you want and the flexibility your deals demand. And hey, if you really want absolute protection, you can still wear your full body armor to Church on Sunday, but don’t be surprised if you have the whole row to yourself more often than you like.