WAY OT: Apple V Apple. Legal lunacy?

[Jeffrey Reynolds]

Chipp,

Wise words, thanks. That is basically how I now have evolved into doing 
my own business. Get the agreement client or vendor hammered out first 
then, if necessary, the lawyer(s) tighten it up. Most of my bad 
experiences have been with the lawyers getting some terms from the 
client then trying to set up the deal and you are right this is where 
things go very bad.

Unfortunately, now most of the contracts I get from large sized clients 
are pretty much non negotiable in the boilerplate items. Most large 
companies/gov agencies have gotten pretty harsh on the free lancers 
this way. only thing that is customized is the scope of work and other 
things like reciprocal indemnification and such are just not allowed by 
the company lawyers. most of the language is pretty one sided for the 
company. the reply is pretty much take it as is or take off.

Sorry this has gotten off topic for the list, but it does seem to be 
useful concepts that many on the list must deal with in doing software 
development.

cheers,

jeff

On May 17, 2005, at 6:08 PM, use-revolution-request at lists.runrev.com 
wrote:

> I learned some valuable lessons at my last job.
>
> 1) Businesspeople should draw up the terms of an agreement.
>
> Typically people try and get lawyers involved at first. This is wrong.
> When you hear someone say, "I'll have my lawyer draw up a contract", 
> you
> should respond, "Let's first iron-out this deal between ourselves so we
> know what it is we're agreeing to." Any good businessperson worth
> his/her salt should be able to work out a term sheet w/out a lawyer
> involved.
>
> Send back and forth plain english terms so that it's clear to all
> involved not only the terms, but also the intentions of the parties.
> Remember: Try to keep lawyers out at this stage. Create a plain 
> numbered
> list of the terms and document it in a non-binding letter of agreement.
>
> 2) Have a lawyer (preferably your lawyer) draw up the terms in legalese
> BUT, (this is important) the lawyer should *never* add anything
> substantial to the contract that DID NOT exist in the original term
> sheet. Doing this is the same as 'negotiating in bad faith' and should
> be pointed out *immediately* to the other businessperson.
>
> IOW, businesspeople draw up terms, lawyers only paper the deal. If 
> their
> lawyers try to become negotiators, then I respond with extreme dismay 
> to
> my counterpart as this is less than professional. If their lawyers
> respond in some way as to force an issue, then go back to the term 
> sheet
> with the original parties and negotiate it there-- without lawyers.
>
> Here's the reason why. Lawyers are professionals in understanding law
> and businesspeople are not. To directly negotiate with a lawyer and the
> legal words in a contract is putting yourself at an extreme 
> disadvantage
> as there are subtle wordings which mean somethiing entirely different 
> to
> a judge than what you may think.
>
> If there's ever an issue with the contract, you can always go back to
> the term sheet and say, "this is what we agreed to, not what you have
> here." Also, the 'spirit' of the term sheet can be reflected in the
> document.
>
> 3) Assuming a term sheet is 'in play,' a good lawyer will never 'sour
> the deal.' A lawyers job is to protect his client, but also to not kill
> an existing business opportunity. If you find a lawyer who consistently
> 'kills deals', then fire him/her and find one who can help you close
> deals. This is true for Sales personnel, and others as well.
>
> These were valuable lessons learned as CEO. They helped