THE `KISS’ RULE: Avoiding the Complexities of Negotiating and

Some lawyers never use five words if 20 could say the same thing. Some negotiators follow a similar rule: Never frame a simple deal if you can construct something more complex. There is probably some good place for lawyers and negotiators like this, but keep them away from your agreements.

If you add to these complexities a draftsman who writes wordy, complex, often incomprehensible sentences, things get even worse. A draftsman who has mastered obfuscation can run a sentence over an entire page (legal-sized and sometimes even single-spaced). Those trained in the English style of drafting, in which little or no punctuation is used, can try the patience of any reader hoping to figure out what is being said.

Even if the negotiators have the same understanding of the deal, they must communicate it accurately to the draftsman. Draftsmen usually need to expand the terms communicated to supply a practical agreement. Unfortunately, the draftsman may also take it upon himself to try to “improve” the deal, usually in favor of the client. These expansions and improvements may result in a “legal agreement” that no longer reflects what the parties thought was their deal. This can create real problems and possibly a lost deal.

What can be done to try to avoid some of the potential pitfalls of unnecessary complexity, short of applying Shakespeare’s suggested solution to both offending lawyers and to offending negotiators?

* Do not try to cover too much at once and especially do not become embroiled in procedural and other nitty-gritty details before the basic substance of a possible transaction has been settled and is clearly understood. Often it is better to discuss the very basic basics in a relatively short first meeting or a telephone call. Then sit back and decide whether the concepts are acceptable. If they are, formulate a proposal around them and start negotiations in earnest. If they are not, try to find some area of common ground and explore this in general terms.

* Have a game plan for negotiations so that you can steer negotiations along your predetermined course. This ensures that matters are brought up and dealt with in a logical sequence. It is often helpful to set out a list of the essential concepts. Rarely will it be possible to control discussions completely, but a little preparation can help you to avoid delays and sidetracks. It is surprising how often negotiators can spend a pleasant and irrelevant hour or so debating the merits of committee structures and procedures before they have even decided that a committee is required.

* Follow the motto, Illegitimus Non Carborundum. If during a negotiating session you feel yourself getting worn down, tired, frustrated or just plain angry, call a cooling-off break and go for a walk, or whatever. Some negotiators are masters of the technique of trying to get what they want by getting the other side upset to the point of “giving in” — not a recommended way to start off a contractual relationship.

* Keep detailed notes during negotiation sessions. This may be best done by an assistant so that you can concentrate on the negotiations. Do not let an apparent conflict or vagueness slip by without it being pointed out and clarified. Even a minor conflict may take on major proportions at a later date.

* Whenever the negotiating session moves to a different topic, stop and review what has been discussed and decided. Some of the most important words that may be spoken at a negotiating session are: “Now as I understand it, we have agreed that . . .”

* Consider spending a while at the end of a negotiating session to write mutually acceptable summary of what has been decided. Do not sign such a document though — you only want something to assist the draftsman, not something that looks (and may be) an agreement. The list is best done in point form and should cover only the major substance. Do not try to draft the agreement or to cover every little point.

* If possible, avoid the temptation of summarizing the outcome in a letter of intent. Such a letter, if a true letter of intent, will not be binding on either party and can be used to one party’s detriment if the other party uses it to “shop” the property. On the other hand, if such a letter is in fact an agreement, it better be detailed enough so that each party can live with it — there may never be any other agreement, legal or otherwise. If it is this detailed, it will take time and care to draft, so why not just do the job once and have the definitive agreement drafted asap?

* Make sure the lawyer who is going to do the drafting knows what the parties want and expect and clearly understands the negotiated transaction. The proper instruction and use of counsel can save a lot of grief, as can a client who refuses to let the lawyer “improve” the deal.

* In complex negotiations, consider involving your lawyer directly. Be forewarned, however, that lawyers may tend to take over the negotiations or get bogged down in the details before all of the major substantive matters have been settled. Tell the lawyer clearly how you want the lawyer to be involved before you go into the negotiating session, and, above all remember that it is going to be your deal, not the lawyer’s.

These are just a few suggestions that may save you the shock of receiving a draft agreement setting forth your “simple” agreement in incomprehensible terms. They may also save on the purchase of antacids, as you attempt to unravel the tangled web spun by a wordy draftsman and an “experienced” negotiator. On the other hand, they may not; it will depend upon you and your ability to control yourself, your negotiators and your lawyer/draftsman.