The Battle of the Forms

The Battle of the Forms By Aimee B. DavisI recently waited a month and a half for comments from opposing counsel to a draft contract. It was finally returned to me in a different form, restating everything that was in the original draft and proposing certain changes to the deal. I call this creating an unnecessary “battle of the forms.” It’s annoying because it increases my client’s transaction costs and slows down the deal, since in addition to reviewing and understanding the proposed changes to the business terms, it takes extra time to make sure that:

A. The new form fully captures the essence of the business deal, and
B. The agreed upon business terms remain intact in the new form.

It’s understandable that attorneys feel comfortable with forms they’ve used in the past, and while it may seem more efficient to them, that may not be true. Waiting 6 weeks for opposing counsel to create a new form results in our respective clients losing business opportunities and possibly market advantages during that time. That’s why when I negotiate contracts, there needs to be a significant business reason to toss the original form and start again.

Whenever possible, I try to work with forms provided by opposing counsel, incorporating straight-forward and simple language that addresses the business concerns of my clients. I also seek to anticipate and inform clients of any additional issues that may arise in the future, and deal with them based on the instructions received from my clients during our consultations.

At its best, the work of the corporate attorney is to ensure all business contracts accurately reflect the terms of the business deal as clearly and simply as possible. Often the words on the page don’t capture the proportionate time spent thinking about, discussing and reflecting on the business deal. Thus, the work product itself may not always provide the best evidence of the value proposition paid for the attorney’s services.

As a service provider whose wares are primarily the ability to reduce complex legal and business concepts into clear and concise sentences, I’m always interested in feedback about how to ensure I provide value to all of my clients. What attributes/qualities are most important to you when you work with your corporate attorney?

  1. Efficiency
  2. Cost consciousness
  3. Trusted advisor of business and strategic guidance
  4. Ability to communicate in “plain English”
  5. Ability to write clearly and concisely
  6. A connector to new business opportunities and/or other professional service providers

Please select the attributes most important to you from the numbered list above or any other considerations you may have by commenting in the box below or sending an email to reach me directly.

Aimee B. Davis Law P.C. is committed to staying on top of legal issues and advising clients on the legal and business matters that are important to them. If you have any questions, please feel free to contact us at (917) 617-2243 or email aimee@aimeebdavis.com.

Aimee B. Davis
Aimee B. Davis Law P.C.
122 Ashland Place
Brooklyn, NY 11201
www.aimeebdavis.com
aimee@aimeebdavis.com

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7 Responses to The Battle of the Forms

  1. Sabari Bagchi says:

    Good point, Aimee. I totally agree and rarely accept non-substantive comments from opposing counsel.

  2. Jessie Jacintho says:

    I agree with you on this article. Recreating documents when all is required is your comments and inputs. i have suffered from this in the past. it is my hope that lawyers would do everything in their power to minimize transaction costs.

  3. Patrick G. Grant says:

    I don’t have a response to your survey because I do what you do. I just wanted to applaud you for your perspective of our role as transactional business attorneys. I share your frustrations and endorse your attitude 100%.

    Patrick G. Grant
    Assistant General Counsel
    S&B Engineers and Constructors, Ltd.
    Houston, TX

  4. Geoff Mendelsohn says:

    Aimee,
    You are absolutely right; 6 weeks delay and then what looks like manufactured work to generate fees – how can that be justified? Unfortunately, it still exists but one of the beneficial outcomes of reduced legal budgets is that most in-house teams are scrutinizing work and time spent, so such an approach is being exposed and on the way out.
    Keep giving value for money!

    Geoff Mendelsohn

  5. Pingback: The Battle of the Forms | Aimee Davis

  6. Paz Alvear says:

    Aimee, it really is very annoying when you receive the same contract you have drafted, but in another form. I try to be very cautious about that, because you can gain an enemy on the other side, and as attorneys we know we have to finally convince not only the counterpart but also its attorney, so better not upset him/her.
    As I always say, the best can be opossed to the good, so as long as any draft addresses all relevant issues, I rather live with it.
    Kind regards,

  7. Kerry Boyce says:

    Very well written seems like higher value and deeper understanding with this article have been brought to the table.

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