Sunday, December 3, 2006

More on Antinomies in the Transactional Practice: What Do Great Real Estate Lawyers Do?

Posted by Jeff Lipshaw

It's exam season in law school, and the perennial struggle over "just tell me the rules" versus whatever it is we law professors teach about the relationship between a rule and its application is repeating itself in review sessions everywhere.

Esb But as much as law students like rules, and social scientists like theories capable of prediction and algorithms and models, I have harped here (and elsewhere) on the inherent paradox (or antinomy) of judgment.  As elucidated by Kant, the issue with judgment is that simultaneously we understand the conclusion is ours alone (and people can differ), but at the same time we ascribe universality to the conclusion.  (This is one of the themes of the Critique of Judgment - we look at a painting, and at the same time, (a) know it's just a matter of taste, but (b) ascribe some objective standard of bad, good, better, worse, and best to the art.)  If there were an algorithm for judgment, we wouldn't prize it in individuals the way we do, and we'd be letting our computers rather than our lawyers negotiate our deals.

If you skip the front of the Sunday Business section of the New York Times today (I leave theSecunda_4 Morgenson-beating to Larry Ribstein), and proceed to the back page, you find an interview with Carl F. Schwartz, NYC lawyer extraordinaire, under the unlikely title "Finding a True Passion in Real Estate Law."  (I'm waiting for the article about finding true passion in ERISA law, but for the time being we have to rely on Professor Secunda, right, over at sister blog Workplace Law Prof Blog for strange and fascinating obsession with top hat plans and the PBGC.)  I want to highlight three counter-algorithmic data points from this article:

1.   Mr. Schwartz's comment on transactional lawyering:  "The most important thing is that the deal gets signed and closed. . . . Sometimes that means the lawyering is less than perfect.  Instead of making 200 comments on a contract, you're going to make 50 or 75 and have the judgment to say, 'This is important, and this isn't.'"

2.  The role of emotion in negotiations.  Mr. Schwartz noted a negotiation (over management rights to several landmark NYC buildings, including the Empire State Building) in which the side seeking the management rights tried to change the tenor of the emotional dispute by sending the "ceding" party a set of lifetime family passes to the ESB observatory.

3.  The role of inter-personal chemistry.  Schwartz plays bass guitar in a rock band in which one of his clients plays keyboards.  Says the client, "There are a large number of lawyers and law firms in town where you can go to get excellent technical execution of a deal. . . .  But what's really important in the relationship of a client and a lawyer is the chemistry.  The fact that we share some sensibilities adds to that."

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