Monday, January 18, 2016

A "one page", quick Contract...

Here's what I've been seeing more and more lately: legal work requests popping up on freelancer websites like Upwork and Outsource. A lot of those online "jobs" are picked up by people who are most often not even lawyers, but writers and content editors. Some are legal professionals from remote locations like India or the Middle East who are not licensed and therefore not permitted to give legal advice in American jurisdictions. But they are cheap and they work quickly. In the age of the internet, Clients have their own idea of what a lawyer should provide, what it should look like and how fast. Quality is almost secondary. They order a contract the same way they order a logo and expect results. Of course, the consequences of getting a contact wrong are far more dire than a logo or a website you don't like. At the end of the day it's lawyers like me who deal with contracts where the drafter missed an issue or left an ambiguously phrased term. And that costs a lot more than spending a few more dollars on a properly written document that is clear, thought out, anticipates many of the concerns  that would otherwise have to be figured out in litigation. Not to long ago I saw a contract that used a phrase "arrange for transport". Both parties were happy with it. One thought they have fully performed by presenting the thing in question to the transportation company. The other believed they were contracting to have the thing transported from A to B. But it was short- it was only one page and some people find that appealing.  An issue like this would be resolved by looking at the history of the parties' communication, to figure out what their intention was. And that takes time and money. A better phrased sentence would have taken care of that and everyone would have known where they are. But a lawyer didn't write it. And you know that one will   get involved and have it sorted out eventually.

Let's take the issue of non licensed lawyers or non-lawyers practicing law, which many if not all American jurisdictions criminalize, out of it for a minute. Or that if something goes wrong- they'll be nowhere to be found.   What I find concerning is how those clients make specific requests as to the length and structure of a Contract - because I guess they're used to control anything else. There are ads like "One-page contract in 36 hours" - as if its purpose and function are completely secondary - and a Contract was a completely generic, interchangeable piece of writing- like a form.  I was trained to write clear, easy to follow documents understandable to  a lay person. They need to be well edited and structured, with issues properly grouped. And a contract needs to be reasonably short. But I advise against one page contracts. It needs to be as long as it takes to flesh out all the issues. My rules of construction typically take 3/4 of a page. And those are things you shouldn't really go without. Does your contract have a severability clause? Governing law? Jurisdiction? Attorney's fees? The truth about Contracts is that what you don't put in- can hurt you. You can do it fast and short and pray it will stick or you can do it well and be proud of your work. My law school started a mandatory drafting course because there was so much bad writing in the nation they had to address it. And it made us think about words. How they have power and meaning. Drafting all of the sudden became a responsibility. We live in the age of the internet. Expect a lot more bad drafting and a lot more litigation.

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