WAY OT: Apple V Apple. Legal lunacy?

[Jeffrey Reynolds]

Alan,

I wish you were here in the states to use! I agree on all your points, 
expect them of council, and wish my experiences followed these 
conditions better. I also agree that the reason these large deal 
contracts end up in lawsuits so much is from the business practice to 
always feel like you have the upper hand and the other guys is getting 
the short end. I can see how this leads to language and logic that can 
be severely flawed. This is more a reflection of the business process 
than the legal profession in this case.

I am sorry if I generalized too much in my post, that's not fair. It 
was a representation of the 10 or so odd times I have had to develop 
contracts with clients' or employers' for projects for them to third 
parties for work and rights agreements. It was extremely frustrating 
experience every time since the simple clear language we started with 
got turned into pages of unreadable and non-understandable text. When I 
would question them about the changes, half the time they would end up 
saying they could not give a clear answer. These were for some very 
straight forward services or photo rights and such. When I would ask 
why we needed so much non understandable language, they would just 
reply it was standard to do so and not professional to not do so. I 
would also get the reply that it was unprofessional to use plain 
language in the contract.

All this was a real mess every time since something that should have 
taken a very short time ended up sometimes taking weeks to get done and 
cost a lot of money. Even when I would send in simple boilerplate 
contracts they would balloon. The worst was that the resulting 
contracts would really scare the potential vendors and media folks. A 
few times we lost potential folks at this stage and a few media folks 
bumped up their licensing fees at this point in the deal... Since many 
of these were small contracts it was hard for the other parties to 
afford to pass it by council for review. It also really ballooned the 
costs on some simple tasks for the clients.

Since I was working on the clients' or employers' behalf they would 
usually end up just saying do what the lawyer advises. I didnt hire the 
lawyers, but they were all reputable and small to large firms that do 
this stuff all day long. A couple of time I was able to simplify the 
photo rights agreements when we had many photographers balk at the 
lengthy contract that came from the lawyers.

I also know what it is like to be on the receiving end of this kind of 
contract writing. One of my clients is a very very large health care 
provider. The contract I got from them to work on a patient education 
cdrom was about 45 pages... It was virtually unreadable language. I 
almost just signed it and sent it in, but decided to stick it out and 
carefully go through it and create a flow chart to follow the logic. 
While doing this I found the clauses that had me indemnifying them for 
all the content validity in the product that they were creating! This 
was medical information developed by physicians and they wanted me to 
legally take responsibility for what the content said! There was no 
reciprocal indemnification for me at all. Even after explaining that 
they were creating the content their lawyers still wanted me to take 
responsibility for content validity. It took a couple weeks and three 
of their lawyers to get the clause removed that had me indemnifying 
them for the content and just get me simple reciprocal indemnification 
since if they did ever make a mistake in the content I might get caught 
up in any lawsuits being the producer on the cdrom. All I wanted was an 
even, fair sharing of responsibilities.

I could never get a good reason from the lawyers in any of these cases 
why having a very simple clear contract that fairly spelled out what 
each side was responsible for, deadlines, and a few honest 
contingencies. In every other business transaction I have done that we 
have drafted documents like this for legally binding contracts and it 
has worked swimmingly!

Perhaps I just dont do business in the regular fashion. I tend to just 
want a fair deal that both sides walk away from feeling like they were 
happy and want to do a deal again soon. Maybe this is why I never 
gotten rich in business, but had a good time, made a fair wage, and am 
on good terms with all my clients...

We have had several attempts at plain language contract reform in the 
US, but every attempt has failed. It is probably because it would gum 
up the works of how things have come to be done.

Sorry for the rant, it is just the frustration I have had with 
contracts in the last 10-15 years doing multimedia work. i have not had 
great luck dealing with lawyers in contract matters. I hope my 
experience is unique and most of the time these things go smoother for 
other folks.

cheers

Jeffrey Reynolds


On May 16, 2005, at 2:35 PM, use-revolution-request at lists.runrev.com 
wrote:

>
> I hear you, Jeff. As a lawyer, publisher, and hobbyist software 
> developer, I
> hear you loud and clear.
>
> I can't speak for the lawyers you've worked with, but only from my own
> experiences in the legal profession after 12 years. Here are some 
> things to
> consider:
>
> 1. Most of the lawyers I have met and worked with are 
> straight-shooters. To
> try to make something complex out of what should be simple for the sole
> purpose of creating legal problems down the road is a violation of the 
> rules
> of ethics and conduct that govern lawyers across the country. If you 
> think
> your lawyer is doing this, it's past time to find a new lawyer.
>
> 2. As in every profession, there are folks who are good at what they 
> do, and
> folks who are ... well, not so good. If your lawyer is doing something 
> that
> you feel is not your best interest, see if he/she can explain it to 
> you in a
> way that satisfies you completely. If he/she can't -- well, as long as 
> it's
> legal, you can instruct your lawyer to do it YOUR way. Alternatively, 
> and
> again, it may be time to find a new lawyer.
>
> 3. Contracts can be tough. I've negotiated my fair share, and I've 
> litigated
> MORE than my fair share of contracts that I DIDN'T negotiate. In 
> drafting
> contracts, lawyers call upon their expertise to try to anticipate 
> problems
> and pitfalls, and to make clear the parties' intent so that when 
> something
> bad happens, the contract spells out how things should be handled. The
> problems come when the parties CAN'T agree -- then lawyers tend to 
> massage
> the language, perhaps making it ambiguous so that if a problem comes 
> up, the
> language at least ARGUABLY supports a view that favors the client. The 
> idea
> is that ambiguous language can at least serve as the basis for a good 
> faith
> argument that the contract should be interpreted a certain way -- in 
> many
> situations, this can be better than a contract that simply doesn't 
> address
> the issue at all. Mind you, the lawyer probably isn't intentionally 
> trying
> to make something ambiguous -- it just BECOMES ambiguous as he/she
> negotiates one draft after another with the lawyer on the other side. 
> The
> end result is language that both sides can live with because neither 
> side is
> getting exactly what they want. When BOTH sides feel they have the 
> upper
> hand, it's usually the contract language that suffers, becoming 
> ambiguous
> enough to support both sides' interpretation.
>
> And that, Jeff, is the stuff that law suits are made of. But a lawyer 
> has
> done his job when he's highlighted the potential problems/pitfalls for 
> his
> client, negotiated away from those problems as much as possible, and
> explained the reason/rationale behind the whole process for the client 
> to
> make an educated decision about whether the deal still represents good 
> and
> fair value when negotiations are done.
>
> Unfortunately, even then, there's no guaranty against litigation. When 
> a
> dispute arises, a litigator who truly represents his client's best 
> interests
> should recommend first and foremost that the parties try to work it out
> without the filing of a law suit. Once you go down that road, it's 
> usually
> long and hard, and retreat gets tougher with every step towards the
> courthouse.
>
> Anyway, just my own thoughts in defense of lawyers who always, always,
> always try to do right by their clients. Thanks for listening.
>
> ALAN S. GOLUB, ESQ.
> Dwyer Golub & Isabel, P.C.