Get It in Writing; Get It in English

What do you call 100 lawyers buried in sand up to their necks? Answer: Not enough sand.

It is said that the problem with lawyer jokes is that lawyers don’t think they’re funny, and no one else thinks they’re jokes. As an active member of the profession for the last third of my professional life, I am qualified to speak to only half of that statement, but I can appreciate the rather dark view of the profession and its practitioners underlying so many jokes. All too often, we deserve it.

My specialty is drafting and reviewing complex commercial contracts, mostly dealing with contingent labor. It is always tedious and often repetitive work; but it is necessary, and it offers an interesting insight into how seriously different people and organizations approach contracting.

A first principal of contract drafting is: If you see something you like, steal it. Done well, with adequate thought and care, blending sections from others’ documents is a reasonable shortcut to producing a workable contract.

Another principal of contract drafting is: Get it right; and while someone else’s unedited language might have been perfectly suitable when it was written, cut and pasted into a different agreement, or taken out of context, it can lead to confusion and inconsistency. Without planning or comprehension, borrowing others’ clauses can be a path to conflict, confusion and disappointment. In the worst case, it can lead to litigation.

A corollary to that is: “Every contract is perfect until there’s a dispute.”

It is not uncommon in a contract negotiation for parties to find themselves in disagreement over a point – major or minor – with a business imperative to resolve the dispute and get the contract signed. All too often, that leads the parties to deliberately incorporate vague language into an agreement that each party hopes will protect its own interests, but that neither party can be perfectly sure about.

Frequently, the issues subject to this kind of “head in the sand” contract drafting are among the most important. Common vague provisions that often work their way into a contract include indemnification, or the definition of services. As long as the parties’ business relationship remains mutually cooperative, there’s usually no problem; but if a dispute arises (or even at normal contract termination), a party may invoke deliberately vague language to seek an advantage. At that point the wink-and-a-nod that allowed the parties to avoid dealing with and resolving an issue going into the contract can become the icy stare of adversaries in a bitter, and expensive, legal dispute, at a time when neither party has much incentive to be cooperative.

The lesson is that contract language is important. The language must be drafted carefully to ensure that it clearly expresses mutual agreement, and makes it easy for the parties to know just what their rights and obligations are, before a contract is signed.

Then, you can sit down with your lawyer and enjoy a good laugh at an accountant joke.

This post first appeared in Contingent Workforce Strategies 3.0.

Frank Lyons
Frank Lyons is an attorney and senior legal associate with Brightfield Strategies LLC, which helps Fortune 500 companies with contingent workforce strategy initiatives such as contract review and development, program design, VMS/MSP sourcing and selection, and global program compliance.

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1 comments
Pradeep Chauhan
Pradeep Chauhan

I was expecting to read about the dangers of not writing a contract. I think everyone gets that contracts are important.

 

How about an article on how to overcome the most negotiated terms in contract agreements? non-competes, etc. please!

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