“…and if not?”

Sometimes I think that 90% of what I do as a lawyer is in answer to the question in the title of this blog.  Every day, people come to me with agreements they have reached as business partners, employers, vendors, sellers or purchasers and ask me to commit the terms to writing.  “We have everything worked out,” I am told.  “We just need you to put enough ‘wherefores’ in it to make it a legal document.”

Over the past quarter century, I have found that summation to be common, simple, and wrong.

Growing up, I often found myself in conversations with my Russian-born grandmother.  She had become fluent in English, to be sure, but her mode of conversation (to her non-Russian-speaking grandson at least) was short and choppy.

I would often tell her of some plan or another that I was working on.  (Plans being ubiquitous to teenagers and 20-somethings.)  She would listen patiently, nod her head, wait for me finish and invariably reply “OK, and if not?”  To this day, I know that she wasn’t mocking; but rather she was genuinely interested in my Plan B.  As a woman who had immigrated to the United States, raised children, lived through the Depression and the upheavals of the 60’s and 70’s, she had come to know a thing or two about Plan B’s.

Decades after her passing, I have come to realize that my career is defined by her sole, leading question: “…and if not?”  That’s what a good contract is – an expression of hope in the form of Plan A and a statement of contingency in the form of Plan B.

  • Loan agreements set forth in great detail how and when payments are to be made (Plan A) and what happens in the event of default (Plan B)
  • Stockholders Agreements describe how the owners are going to work together and profit from their endeavors (Plan A) and what each person’s rights and responsibilities are in the event they want or are forced to separate their interests (Plan B)
  • Employment Contracts list all consideration from salary to fringe benefits and participation in bonus pools (Plan A) as well as restrictions and rights relating to the employee’s departure (Plan B).

Plan B’s are the essence of negotiation. The existence of a detailed and well thought out description of what happens when something does not go according to plan is what separates an working agreement from crossed fingers and a prayer.

So when my clients walk in and tell me that the parties are in agreement so there’s really not much to be done on the contract, they remind me of what a fourth marriage is supposedly represents: the triumph of hope over experience.  Moreover, they are ignoring what Mike Tyson said best (yes, Mike Tyson):  “Everyone has a plan until they get punched in the face.”

It is safe to assume that Mike Tyson never met my grandmother.

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