was responsible for doing the due diligence investigation? As part of that process, as part of knowing of competitive threats to the industry, who should have known that the Taiwanese were mounting an imminent and major attack on the injection molding market? There was one answer – Hank. Kent had his company’s PR flacks and spin-meisters put out the word that the whole disaster was Hank’s fault. Kent was led astray by Hank’s advice. Kent was still the genius. Hank was now forevermore the goat.
Hank was bitterly offended by the actions of his former friend. The competitive analysis was supposed to have been done by the company’s people. While it wasn’t in writing, Hank had even warned Kent against the deal. And now, to be turned on like this, was something beyond belief.
It got worse. His large firm couldn’t have the taint of the injection molding fiasco on their doorstep. Despite the fact that Hank’s work had lined all of their pockets with tens of thousands of dollars every year for the last eight years, Hank was told to leave the firm. For his former partners, appearance was more important than reality, rejection easier than loyalty.
The lesson of this case – and be assured it has happened thousands of times around the world – is that attorneys are deal killers because of the position that they are in. For Hank, there was no upside on the deal. He would collect his fees, sure, but he would be entitled to them anyway. But if the deal was a huge success, Hank would not get the credit or a bonus, or any other benefit. Success was expected.
At the same time, Hank had all of the downside risk. If critical information wasn’t ferreted out in time, if the deal didn’t work for a myriad of technical reasons, the lawyer was to blame. Hank’s position in the whole transaction was that of scapegoat-in-waiting.
And so, for many attorneys, it is easier to kill a deal than make one, for in killing it, no mistakes are made. There are no future problems or issues, for which scapegoats are needed.
While it is justifiable to criticize a small and select number of attorneys for their officiousness, incivility and questionable ethics, it is important to know that the syndrome of the deal-killing attorney most frequently arises outside the context of the attorney’s own personality. Instead, it should be recognized that almost every attorney you will ever deal with will have had a person like Kent in his past – a client and a friend, who the attorney went all out for, only to have that person turn on them when it became convenient to do so. With most attorneys having one or more such experiences, it is no wonder that they are skeptical, resistant and on their guard in the sale of a business. Their clients, the public at large, have put them in that position.
The point of this discussion is not to create sympathy for the legal profession. Shakespeare, Twain, Hemingway, the world’s most talented writers, could not do that. Rather, the point here is to help you win when you buy and sell a business. To do so, you need to know why attorneys are deal-killers. And, armed with this understanding, you can overcome the resistance of the deal-killers to your ultimate advantage.
Entering into a business purchase transaction, assume that every attorney involved in the deal is a deal-killer. They don’t want to make a mistake for which they will be blamed – or sued for malpractice – at a later date. How can you win with such people at the table?
1. Be forthright. Don’t hide anything. Attorneys have trained antennae that sense out when even the smallest of details don’t add up. If you are evasive or furtive or, on the other hand, too slick or glib, the attorney will be processing those impressions and recording them as a strike against you. Be honest, open and direct. It’s not hard to do.
2. Focus on win/win. As we’ve discussed, the only good deal is one that works for both parties. Appreciate what the other side needs to get out of the deal, and openly discuss your understanding of their position. This may seem counter-intuitive to certain hard charging executives who are determined not to leave one scrap on the table for anyone else. But again, you are in a room full of deal-killers. And honey gets you more than vinegar. By tenaciously and unreasonably fighting for every last dollar, you are geometrically increasing your chances that one of the attorneys will decide that you are a future problem waiting to happen. And we know how attorneys deal with the specter of future problems. Avoidance. No deal.
3. Immaculate documents. You should see the look on some attorneys’ faces when a perfectly assembled due diligence package arrives for review. You would think they’d want to start dancing. If your corporate documents – your articles, bylaws, minutes, major contracts, policy manuals, procedure manuals and the like – are in perfect order when they are shipped off to the other side’s attorneys for review, you will have taken a huge step in overcoming resistance.
Immaculate documents and documentation of corporate operations and affairs creates an extremely favorable impression. And remember that we are dealing in a certain measure here with the importance of impressions and intuition. If your documents are in precise order, it bespeaks that your organization, your means and your manner of doing business are in order as well. It gives the attorney comfort that he is not letting his client make a mistake.
On the other hand, poor corporate records are probably the number one reason attorneys will kill a deal. You hear the lament all the time: “Their records are a mess. How can you trust them for anything?”
All right. Having discussed how to deal with deal-killers, let’s explore how to assemble your team of deal advisors.
A professional team working behind the scenes can make all the difference between a good sale and a bad one. But the difference may well lie in the quality of your team. True experts don’t come cheap and this is one case where it is likely you will get what you pay for. But don’t let high hourly rates or fancy titles intimidate you. You are in charge. You must decide when to engage counsel, when to delegate authority and when to make your own decisions. You also need to know how to choose your team. Following are a few guidelines to use when assembling your experts.
1. First look for personal recommendations. Check with others who have bought similar businesses and ask how they felt about members of their team. Tap the knowledge of friends, relatives and business acquaintances. If you can’t find any personal recommendations, check with professional associations.
2. Make a list of at least three candidates for each spot on your team.
3. Conduct interviews with each of the candidates. Don’t settle for a phone interview; do it in person. You need to know if you are comfortable working with this person. If any say they are too busy or can’t meet in person, consider this a big red flag and mark them off your list. Be sure to ask if they offer a free initial half-hour consultation. It never hurts to ask.
4. The interview:
• At the interview, pay attention to how the expert treats his or her staff. Is his or her style of teamwork conducive to your own?
• Look around the office. Is it organized? Do you see certificates from professional associations or awards from peer groups?
• Ask about experience and education. How many similar clients has he or she had? How long has he or she been in the profession? Does this professional engage in continuing education? How does he or she stay current on changes in the field?
• Discuss your own expectations and don’t be afraid to ask questions. You’re not supposed to know everything; that’s why you’re looking for experts. However, don’t shy away from a candidate who admits he or she doesn’t know an answer to a question if he or she says so and promises to find out the answer. That kind of honesty can signal a keeper.
• Listen not only to the content of the candidate’s
