seeahill wrote:HH,
Every writer uses voice and the more idiosyncratic the better. Yes, a lawyer doesn't want to inject his personality into a brief and a conversational tone will detract from the importance of the proceeding. A lawyer writing for the court is writing a dead serious parody of the legal style.
But if you're writing for publication, you'd better have a voice. People should be able to read a graph or two and know who it is. Write in your own voice: don't wear someone else's voice. Find your own. The more comfortable you are with your voice the easier writing becomes.
I do agree with you on the importance of voice, and I've developed my own style. It's easier in articles than in briefs, but the idea is the same. Be the reader's friend: Organize, be clear, avoid fluff, convey information with each sentence and word. Once you've got that down, use strong and precise words, especially verbs, mix up the sentence structure, write with your ear. Here's an article I just published:
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Prospective franchisees can always negotiate their franchise agreements—even if the franchisor seems to carry all the negotiating power. Franchise agreements aren’t negotiated in a vacuum. Power, leverage, laws, relationships, and business smarts all create the general negotiation dynamics. In the first of a four-part series, here's a checklist of general considerations that affect the success of a negotiation.
Franchisor power. The franchisor’s flexibility is determined by the maturity and financial strength of the system. Burger King is less flexible; Burger Peasant is more.
Franchisee power. Cash-rich, multi-unit, experienced developers have more leverage in negotiation. Poor, single-unit novices have less. A related issue is that franchisors may have certain special needs that a franchisee can meet, and that can be leveraged for changes in the agreement.
Personal guarantees. Without a personal guaranty, the franchisee has the ultimate remedy – the ability to walk away from a deal. Just having the ability to walk enhances negotiating leverage during the contract term (“Diplomacy without force is like music without instruments.” – Frederick the Great).
Relationships. With a good franchisor/franchisee relationship, the parties work issues out, franchisees are treated fairly, and everyone rows in the same direction. The contract, in some ways, becomes irrelevant. With a bad franchisor, the contract becomes very relevant but that’s only because it governs clash and conflict.
Equal protection statutes. Hawaii, Illinois, Indiana, Washington, Minnesota and California have statutes that require, essentially, equal treatment of franchisees and other states have equal protection provisions for certain types of clauses. Franchisors use these statutes as a reason not to negotiate, but they’ll budge if it’s in their interest to do so. The statutes have been interpreted to mean that, so long as the franchisor is not acting arbitrarily, the franchisor may treat franchisees individually taking into account the circumstances of the matter. That allows for a lot of leeway.
Relationship statutes. Over 20 states have statutes that offer specified protections to franchisees. As a general matter, these trump any provision in the franchise agreement to the contrary. The franchise agreement should acknowledge this and, for some states, provide a state-specific rider.
Franchisor obligations. Franchise agreements generally obligate (or allow, but don’t obligate) a franchisor to license a valid mark, instruct the franchisee in the system, offer training, and control proprietary supplies. The clauses on franchisor’s obligations probably take a few pages of a franchise agreement. The other 30-plus pages set out the franchisor’s rights against franchisees and the franchisees’ duties.
The AAFD Fair Franchising Standards. The American Association of Franchisees and Dealers has a set of fair franchising standards that it regularly reviews and updates. The standards serve as a good checklist to see how an agreement stacks up. Beware. Most agreements don’t stack up.
Prepare. Go through the contract thoroughly to think through all business aspects. If real estate, insurance, accounting, or financing issues are involved, check with your advisors or agents in these areas to see if business issues exist. Your due diligence here can raise “must negotiate” items. Your lawyer may not spot these issues unless you point out your business concerns. Also, call other franchisees who are in the system, who have failed, and who have been terminated. If the franchisor has an independent franchisee association, call the officers.
Vote with your feet. All other considerations aside, a prospective franchisee has to be prepared to walk from a deal. Many franchisors may not budge much on negotiation. If you don’t feel great about the franchisor’s management, its economic strength, or its track record, walk away from the deal. If you do feel great about the franchise, negotiate the best contract you can negotiate, and set out deal-breakers if any. If you end up with no deal-breakers, and you trust management and the concept, your best course may be proceeding knowing that the contract is biased in the franchisor’s favor.
Franchisor’s legitimate concerns. Franchises succeed because they start with a good model, make it replicable, and they have a business model that allows the franchisor and franchisee to each make money. Franchisors should also have the power to get rid of franchisees who are harming the system and to make sure only quality applicants are allowed to become franchisees. They also should have the flexibility to regularly update the system and move the brand forward. A consistent franchise agreement furthers these goals, and it’s in the franchisee’s interest for the system to succeed. Thus in many ways it’s in the franchisee’s interest for the franchisor to have a consistent agreement that furthers these goals.
The cost/benefit of negotiation. Paying a lawyer to do a thorough job of reviewing and negotiating a franchise agreement can be costly and time-consuming. Is it worth the cost and time? On the one hand, it would be penny-wise/pound-foolish to skimp on this process as the agreement will govern your business for many years and the standard agreement may have deal- breakers for you. On the other hand, you need to think through what’s important and what’s not, what risks you’re willing to assume, and the franchisor’s legitimate interests in consistency. There’s no one answer as to how hard to push other than to find a lawyer who’s not only smart and experienced in this area, but who has good judgment and common sense, and who will be able to advise you on the best course consistent with your interests and values.
One word of caution: This is only a checklist for brainstorming, and not the final word on any of the matters addressed. It's not a subsitute for that lawyer who’s not only smart and experienced in this area, but who also has good judgment and common sense