Pub. 14 2019-2020 Issue 2

WWW.NEBANKERS.ORG 14 COUNSELOR’S CORNER Nine Bold Rules To Get The Most Out Of Your Contracting Process (Part 1 Of 2) Bryan Handlos, Kutak Rock LLP S ARCASM I NOW SEE TO BE, IN GENERAL, THE LANGUAGE of the Devil; for which reason I have long since as good as renounced it. Thomas Carlyle, Sartor Restartus, II, 4 1 Contracts are overrated. In nine cases out of ten you will be able to resolve problems with your business partners based on your business relationship and practical leverage with them. If the problem is serious, litigators will be involved anyway and the court systemwill provide an efficient way to sort the problemout. A good litigator will often be able to find creative ways around poor contracts. In any event, most contracts will never be looked at again once they are signed. Given these truths, what is the best approach to your contracting process? Most importantly, how can you save money and improve your bottom line? The “Rules” that follow reflect a bold non-legal approach to that subject. Editor’s note: The observations above and theRules that follow should be questioned. Some of the author’s statements are exaggerated for effect. Perhaps the author has even taken a tongue-in-cheek approachwith some very slight good-natured humor being intended (although nothing in this article is in- tended to disrespect the viewpoints expressed in the Rules). “Editor’s notes” are presented to offer potentially better ap- proaches—think ‘point-counterpoint’ or ‘myth vs. reality.’ Rule 1. Focus only on price and business issues Price and business terms are the reason for your contract and why it has value to you. The other side should be made to understand how important those central issues are to you. Focusing on legal terms and conditions distracts from what is most important. Asking for legal niceties slows things down and needlessly wastes your limited bargaining chips. If you must negotiate things only the lawyers care about, hold off on them until after you have resolved everything you really care about so they don’t distract from what is most important. Editor’s note: Price and business terms commitments are undeniably critical elements of any contract. “Legal niceties” can, however, be used to significantly water down a party’s