A couple of days ago I noticed a post on LinkedIn by Ian Heptinstall. In it, he quoted a bit of contracts advice from 1916 and asked readers what they thought of it. Here’s that advice:
Our custom here is to draw up a contract before having seen the lawyer and then to ask him to put it in more legal shape. Such a contract is more likely to embody the spirit of what has been agreed upon than one drawn up by a lawyer; to ask his opinion as to what you should do or not do is the worst possible way of conducting business, which should be kept as far away as possible from lawyers
And here’s the comment I posted:
This is terrible advice, as it assumes that your lawyer is an idiot. If this is the way anyone feels, they’re the idiot for sticking with a lawyer who isn’t focused on helping their clients achieve their business goals. Get a different lawyer!
My view wasn’t popular, but I remain comfortable with it. The advice reduces all lawyers to scriveners. If it had been less categorical and all-encompassing, it might have been more credible.
But the purpose of this post isn’t to rehash Ian’s post. Instead, I decided to come up with my own version of the advice in Ian’s post for deals that require outside counsel. (That might seem rash, given that it’s been many years since I actually worked on a deal.) Here’s what I came up with:
Start by preparing a term sheet. In doing so, get business, legal, and tax advice—it will make unpleasant surprises less likely. (That advice might consist of your being told that no advice is necessary.) The term sheet will give your lawyers a road map for drafting the contract. Unfortunately, traditional contract drafting is a mess, consisting largely of copy-and-pasting, on faith, from precedent contracts of questionable quality and relevance. You’ll just have to hope that your lawyer’s deal smarts aren’t subverted too much by clumsy drafting. Expediency, not quality, is likely to be the order of the day. But if you plan on doing repeat transactions, try finding a lawyer who’s an informed consumer of clear and concise contract language.
I invite you to post your own version in the comments.
4 thoughts on “Advice on Contracts: 1916 Compared with 2018”
I feel like the first four sentences should be on every transactional lawyer’s website to hopefully reduce the number of times we have to put bandaids on problematic terms (assuming clients would see and read and heed it!)
Business and lawyers need to realise that they work for the same objective. If business treats lawyers like rubber stampers, they will behave like rubber stampers, and in doing so will confirm business’ impression that they just complicate everything. Who makes the first step? It has to be lawyers. We control our own destiny.
Funny, I found myself nodding along with the 1916 advice.
I may be an idiot — buoyant self-esteem keeps many of us from seeing even our most glaring deficiencies — but would love it if clients brought me their self-drafted contracts. The drafts would be like ‘term sheets plus’, informing me what the clients think important about the deal. The drafts would tee up my questions about the deals or proposals to be fleshed out and ‘made legal’.
I also like the attitude, harder to maintain as the volume and complexity of law and business regulation grow and grow, that good business people manage their businesses so as not to need the constant attention of lawyers.
But Ken, you are of course right, and your revised version of advice to business people whose deals need outside counsel would have served as well in 1916 as it does in 2018. –Wright
As I note in another comment, the “idiot” references are to those in the hypothetical scenario, not esteemed readers of this blog!