Who closes the deal?

Drafting agreements superficially sounds like a simple job of producing a written document. However some clients had an unspoken expectation that I would ultimately obtain the other party’s signature on the agreement as well. Should it be the lawyer’s responsibility to close a deal instead of just dealing with the paperwork?

To broadly outline the process of getting an agreement to completion:

1. The first thing to do would be to review the agreement for any clauses that would be unenforceable or illegal under the law of the jurisdiction we qualified in.

2. Next, review the clauses for anything that conflicts with client’s interests, and propose necessary amendments.

3. If the other side counters with other amendments, we would cycle back to the previous step.

4. If all sides are satisfied and there is no need for further adjustments, they can proceed to sign (since in Singapore there is no need to register contracts with a particular authority – as always, the rules may vary in different jurisdictions).

Drafting the agreement is, simply put, a way of recording the relationship in a way that a court and other lawyers can understand (and if both sides agree to use plain English, anyone else reading the agreement). The law provides the framework for the relationship but the content depends the outcome of the parties negotiation, and like any negotiation, the lawyers need to go beyond positioning and horse trading:

1. Does the client have clear interests, commercial or otherwise? This is where in-house counsel usually have an advantage, especially if they have been with the client or in the industry for a period of time. In situations where the client does not have a clear direction for their lawyers, the review comes along with guiding questions and scenarios from counsel.

2. Does the other side have clear interests? Usually the position is clear from the response to proposed amendments, but it may take some probing by lawyers to pinpoint the pain points. A deeper involvement means more extensive costs, and sometimes the client may prefer to take the reins of the negotiation themselves.

3. In the interests of time, parties may choose to meet physically to short-circuit the process of passing proposals back and forth. The draft agreement can act as an agenda, but to avoid being bogged down by haggling through the entire draft, both sides need to prioritise the issues to be discussed.

4. When there’s a stalemate, it’s time to consider other options or alternatives. In situations where the relationship hasn’t been formed, the practical alternatives are usually commercial rather than legal, and the lawyers’ ability to form alternatives to the agreement being negotiated, or particular clauses, depends on their experience.

Ultimately the client makes the decision whether to execute the agreement. But in order for lawyers to help close the deal, they have to be given as much relevant information as possible, and some free rein to steer the discussion between parties. Signing on the dotted line is the consequence of parties finding themselves in a zone of possible agreement, and expecting to achieve their commercial objectives.