06.04.07
A Tale of Two Deals
I recently had the opportunity to represent an outsourced services supplier in one deal and a new outsourced services customer in another. In both deals, the other side provided the paper. The experience left me even more sure that a better way must exist for these deals.
The customer paper – that was presented to my supplier-client – was what I call a “Frankenstein†deal. It was an agreement that was stitched together from a number of disparate parts that had only one thing in common – each part was completely one-sided against my supplier-client. It was sloppy and inconsistent – protective of the other side by virtue of its brute force.
The supplier paper – that was presented to my customer-client – was a far better document. Clearly the supplier had paid someone to write their form documents. That it left major issues untouched – and that it pushed all risk onto my client – can’t take away from the fact that it was well crafted – almost a joy to read. That being said, it accomplished through subtlety and omission what the other document accomplished by brute force – an unreasonable, ultimately unworkable allocation of risk.
Both documents took a large amount of time and ink to negotiate. As a small-firm practitioner, at least the fees weren’t unreasonable. But the fact remains that both deal documents slowed the deal process, threatened completion of the deal, and contained an adversarial spirit that detracted from the deal at the outset. Both were brought closer to the center through the negotiation process. I can only hope that the services, themselves, are rendered with a greater spirit of partnership than the documents were drafted with. Time will tell.
