I’m Growing Older But Not Up…
You know that I like to quote Jimmy Buffett songs. In this case, I have been reflecting on how much my life as an attorney has changed since I started practicing back in the late 80’s. I have been negotiating a lot of lengthy documents lately. I don’t know if it’s been busier than normal but it got me to thinking back to those early days. I was a young, somewhat aggressive associate at a large state-wide firm based in Ft. Lauderdale. Like my fellow associates in the classes ahead of me, I guess I had a certain arrogance when it came to document negotiation. We had the “biggest” clients, the best lawyers and the best documents. But I found out quickly, when left to handle negotiations on my own, that more senior lawyers, particularly partners at other big firms, loved to take advantage of young cocky associates like me. They basically bullied me because I didn’t know as much as I thought I did. As a result, I had to show deference to the gray hairs until I could re-group and confer with my partners. Fortunately, I had great mentors who taught me a lot and allowed me to develop my skills and style.
Negotiating and drafting back then was before the technology boom. Computers had not yet found their way to attorneys’ desks. We had to mark up documents by hand (and use Dictaphones) and send them to word processing and then wait a day or 2 to get work back. We then mailed or hand delivered documents to the clients and to the other side (sometimes we even faxed!), with hand written red-lining. We discussed changes on the phone and met in person to actually negotiate (and close). We had to look our opponent in the eye to make tough demands. It allowed us to build relationships and trust our adversaries and forced us to pick and choose our battles. We did not argue, or even comment on, minor provisions and boilerplate.
Flash forward to 2017. I am generally the old guy now in negotiations and deals. I always try to keep this in mind and do not purposefully take advantage of a younger opponent. But sometimes I have to make an exception. Sometimes I come up against a young attorney from one of those big firms who thinks he/she knows everything and can’t be reasoned with. Then, I remember how the senior guys in the old days handled it with me. If the young attorney isn’t smart enough to retreat, make the right decision or ask for help, then their client will suffer or he/she will suffer the consequences when the client figures it out. When I am told “we never do it that way” or “we can’t do it that way”, I’ll tell them to pull out their firm directory and find a partner among the 500 plus attorneys in the firm who has been around a while and ask what he thinks about the words “can’t” and “never”.
I have respect and patience with young attorneys from smaller firms or who are solo practitioners and are willing to learn. I particularly appreciate those who tell me that they don’t know something or have never done something before and need time or need help.
The biggest changes, however, is that we don’t seem to talk any more. We provide or receive documents. The documents are reviewed, marked up and returned. We use e-mail. We don’t establish any personal connections or relationships and therefore, never gain a sense of trust or understanding. We don’t take any time to get to know each other. We simply finish the documents, finish the deal and move on.
Are we doing a quality job. I think we continue to do our jobs technically well. However, I think that there is an entire generation of real estate attorneys and other real estate professionals that are missing out because of the lack of human contact with their colleagues and opponents. There is much to be learned from the other side. I am thankful that I had that opportunity.