Zealous Advocacy That Isn’t

So we’ve been in the middle of some (finally) productive m&a activity in the last few months.  Like daisies after a rainstorm, the dormant deal lawyers haven’t been far behind. And so are some of their maddening concepts of client service.

Besides the usual favorites like ignoring fee estimates (or even talking about fee estimates once the deal is under way), and piling on conference calls (if one lawyer is good, three is great . . . and five is outstanding!), there is one more that we never remember until reviewing documents late at night.  Next morning, the conversation goes something like this:

“Say, in looking over the draft, I noticed we aren’t giving the same warranty that we want from the other side.  How come?”

“They need to ask for it.  I give up nothing.”

“Due authorization? Really? Kinda hard to think they’d miss that one.  And since we don’t even order lunch around here without a board meeting, I’m pretty sure that this highly profitable deal will get the nod.  Go ahead and throw the warranty in.  You can add ‘due incorporation’ while you’re at it.”

“Seriously? That’s not my style.  I want to make them work for it. I’m protecting your interest.”

“Well I appreciate that, but we need to save your strength for the big fights.  Since this is only draft #1, let’s let it go.”

And so it went, through the entire deal.  Maybe because  transactional lawyers rarely get a live audience like litigators do they need an outlet for their zealous advocacy, even if it’s clipping a few words here and there.   But advocacy is not simply doing what the other side doesn’t want.  It’s getting done what your client needs to get done.  Pick your battles when you can.  You might even lull the other side into thinking you’re reasonable.


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