Recently, I’ve had negotiations with governmental agencies, major research universities and a fortune 100 company. While these were several million dollar deals – the transactions were far more important to my clients than the other side. We encountered similar challenges in each deal. I’ve identified below some of these challenges and some strategies for dealing with these “Goliath’s.”
Challenge – Goliath has a template agreement or standard approach that that doesn’t fit this deal.
Strategy – Try and persuade them that this isn’t the standard deal and volunteer to draft the non-standard agreement to save them work. If that doesn’t work, try and convince them to accept your changes to their standard agreement. If the answer is still no, ask them if you can do an addendum to the standard agreement that controls if there are conflicts with the main agreement. If all of these strategies fail, try and get them to provide you with written statements that actually represent the deal terms, and incorporate them in the agreement.
Challenge – Goliath assigns a team to the deal, but no one fully understands it or is willing to take the lead.
Strategy – Presumably, someone within Goliath’s organization is excited about this deal (usually not in house legal counsel) and is vested in its success. Identify and try and work directly through that person. Remember, the business people lead the deals, and the attorneys facilitate them – keep the substantive discussions between the business people.
Challenge – You have concerns with almost every provision of Goliath’s proposed agreement, since they’re all overreaching and unreasonable.
Strategy – This is the most important strategy for dealing with Goliath’s – focus only on the most important – i.e., deal killer – issues. And, make sure attorney and client agree on what these are. The reality of dealing with Goliath’s is you almost never get everything you want – settle for what you need.
Challenge – Goliath adopts a “take it or leave it” approach.
Strategy – Unfortunately, this is more of a reality than a strategy, and stems from the old “Golden Rule” – that is, he who has the gold makes the rules. This is the client’s call, and it’s a very simple analysis – fully understanding the business and legal risks, is it worth doing the deal? If yes, you proceed; if no, you walk away.
There are definite advantages of doing deals with “Goliath’s,” but flexibility and responsiveness are not generally among them. Hopefully, these strategies help you in your next deal.