Pub. 14 2019-2020 Issue 2

WWW.NEBANKERS.ORG 16 For more information, contact Bryan Handlos at Kutak Rock LLP: (402) 346 6000 or Bryan.Handlos@KutakRock. com . Bryan, a member of Kutak Rock LLP’s banking practice group, concentrates on bank regulatory and contracting matters. obviously have a cost also). Regardless of cost considerations (andwhether you are working with inside or outside counsel), you probably do not have a lot of spare time to waste in unnecessary conversations. Counsel’s job is to figure out what is important, particularly if you have worked with them long enough for them to understand what is usually important to you. As with any relationship, counsel should be expected to know or figure out what you want. Without going so far as to say conversations with counsel are overrated, they definitely cost time and money. “More doing, less talking” is a better approach. Editor’s note: No one, even counsel charging by the hour, finds professional fulfillment wasting time on unproductive meetings or telephone calls. A brief initial communication of the client’s perception of the deal will not be unproductive. Without the benefit of the client’s direct input, some portion of counsel’s perception of the deal may be formed by what the other side has put in the contract. If a client sends a contract to counsel with no comment, is counsel wrong to believe that silence means the client is okay with its various terms? This may not be the case where the counsel knows full well that a particular issue is a hot button for the client or where it is clear that the client is relying on counsel’s own judgment with respect to certain ‘legal issues’ like indemnity and limitation of liability. But even then, much of the contract will remain open to question. This situation ismadeworsewhere the other side has left things out. Telling counsel what a client is most worried about will help counsel prioritize and focus on what is important. That initial brief communication will improve counsel’s efficiency and result in counsel having a more accu- rate understanding of the client’s needs than if counsel tries to figure it out for themselves. Lawyers may tout a lot of skills and value in their services, but even the most brazen will not try to sell their mind-reading abilities. Rule 4. Minimize revisions Counsel will be happy to totally rewrite your contracts. Many contracts have plenty to be critical of and much that should be fixed in a perfect world. This is not a perfect world. Most revi- sions to a contract will be wasted effort. And for the contract that is filed away never to see the light of day again, all of the revisions will be wasted effort. You do not need perfection. The more revisions you ask for, the longer and more expensive the process will be. Substantial rewrites cause problems and often reflect unrealistic expectations. Some contracts are not really negotiable anyway, so why not just bite the bullet, determine what you can live with, and move on? Editor’s note: Very few contracts are truly nonnegotiable. A party pushing back on requested revisions to its standard terms will sometimes say the deal was priced on the expec- tation that the parties would do business on those standard terms. If the one-sidedness of those standard terms is taken into consideration, the expectation of no changes is unreal- istic. Perfectly reasonable objections to standard contracts will almost always exist, sometimes many of them. The other side invested considerable time and talent in engineering their standard contract. Even with a substantial markup, the party requesting revisions will spend only a fraction of the time the other side has already invested in their standard form. And even with extensive revisions, a party will likely still be at a substantial disadvantage to the other whose standard terms provided the starting point. Calibrating the level of response needed on a contract is best done by the client. Counsel’s preferred approach will be to produce a high quality work product that protects its client as well as the standard contract protects the other side. If that is not warranted in the circumstances (e.g., if it will cost too much to obtain a reasonable degree of reciprocity), most counsel are perfectly capable of following the client’s instruction to take a light touch or to focus just on specific issues.  1 Anovelaboutphilosophyfromthe1830’swhichusedthevoiceofan“Editor” as a literary device. Theauthor andeditor were, in fact, oneand the same. (to be continued in the next issue of Nebraska Banker magazine) Counselor’s Corner — continued from page 15