Getting to Yes: Pick Up the Phone

As lawyers, we are often in the best position to make things happen.

We can bring a deal together, get a dispute resolved or help a client move past an issue that has been holding their business back.

We, as professionals, can also get in the way.

An unnecessary argument, a poorly worded email or an unwillingness to pick up the phone can turn a manageable issue into an expensive problem. The client pays for that, both in legal fees and in lost opportunity.

For me, good commercial lawyering starts with a straightforward question: what are we actually trying to achieve for this client?

Then we need to get on with achieving it.

Put the ego aside

Our clients have businesses to run. They have staff, customers, financial commitments and decisions to make.

They need us to understand the law, protect their position and give them clear advice. They also need us to exercise judgement about which points are worth pushing.

I can be right about a clause and still give my client a poor commercial outcome by spending three days arguing about it.

Some points matter enough to hold firm. Others can be dealt with through a sensible compromise. We should know the difference and be honest with our clients about it.

And if the other lawyer has a better way of solving the problem, use it. Nobody needs a medal for coming up with the wording.

Pick up the phone before it gets bigger

We have all seen an email exchange go sideways.

Someone takes a comment the wrong way. The response becomes a little sharper. Before long, the conversation is about the tone of the correspondence as much as the original issue.

That is usually a good time to pick up the phone.

My preference is to get straight to it:

“I think we are talking past each other. Have you got five minutes to work through this?”

You do not need a speech. You need a conversation that helps you understand the obstacle and work out whether it can be removed.

There are a few simple ways to take the heat out of those calls.

Start with something you can agree on.

“We both want to get this settled. Let us work through what is actually holding it up.” “Your client wants this business, our client wants to sell it!”

It gives the conversation a shared purpose. There is still room to disagree about how you get there.

Acknowledge a reasonable concern.

“I can see why your client is concerned about that. Our client needs protection on this point too. Can we find wording that deals with both?”

You can acknowledge a concern without accepting the other side’s position. People are generally more willing to listen once they feel they have been heard.

Own your part if you have contributed to the problem.

“My email was probably firmer than it needed to be. Let me explain what we were trying to address.”

If you have misunderstood something or expressed yourself poorly, fix it. Defending it for another week helps nobody.

Ask what sits behind the demand.

“What is your client worried will happen if we agree to this?”

That question can be useful. A demand for a broad guarantee might be driven by a specific payment concern. A refusal to agree to a clause might come from a bad experience on an earlier deal. Once you understand the concern, you can look for a solution that actually addresses it.

Make it easy to reconsider.

“Would a narrower version deal with your client’s concern? Take it back to them and see what they think.”

Give the other lawyer something they can recommend to their client. They need a workable way forward just as much as you do.

Then listen. You do not need to fill every silence or answer every objection immediately.

Get the advisers working together

The same approach applies when dealing with accountants, financiers and other advisers.

A commercial transaction needs people who understand their role and are willing to work together. The accountant may see a tax issue that changes the structure. The financier may have a requirement that affects the timing. The lawyer needs to bring those issues into documents that work.

If something does not make sense, call the person responsible and ask.

“We are looking at this structure. Can you talk me through why you prefer it?”

That is a much more useful starting point than assuming they have missed something.

We are all being paid to help the client. We should make it easier for each other to do that.

Your opponent is not your enemy

This is probably the most important point.

The other lawyer acts for someone with different interests. They may push hard. We may need to push back just as hard.

Treating them as an enemy makes it harder to have an honest conversation, test a proposal or resolve a difficult issue. You can be firm, protect your client and maintain a good professional relationship at the same time.

Even in a dispute, there is often something both sides want: certainty, an end to the legal spend or the ability to move on.

Find that common ground and see what you can build from it.

Keep the result in view

Getting to yes does not mean giving in. Sometimes the right answer is no. Sometimes proceedings are necessary. Sometimes the deal should not happen.

Our job is to give that advice clearly when it is needed.

But where there is a sensible outcome available, we should be driving towards it. That means having the conversation, putting forward a solution and following through.

At Bird Law, I want our clients to feel that we are invested in getting them somewhere. That we understand what matters to them and will do the work to move it forward.

The other side may be your opponent. They are not your enemy.

Authored by Christian Bird, Principal at Bird Law