Contract Drafting – It Pays to Pay Your Attorney

An e-mail all attorneys hate receiving is one that starts like this: Hey Collin, I’ve drafted a new employment agreement, do you mind taking a quick look and telling me what changes I should make? 

The short answer: No – I know very very few attorneys who would jump on that landmine. The long answer — hell no, and here’s why:

Reason 1 – Samples Are a Starting Point, Not Your Entire Agreement –Put another way, Googling “independent contractor agreement” and downloading the first hit from Docracy is not the same thing as having an attorney draft your agreement. First, a sample agreement taken from another business will never be what your business needs. Second, a contract is a single document, enforced in its entirety (most of the time), not an amalgam of sample clauses pasted together and enforced individually. The danger in taking any “sample” clause without really understanding what it does, is that it could impact another clause somewhere else in your agreement and cause unexpected consequences. Third, when you draft your own agreement, can you be sure you actually understand what all the different sample clauses mean?

Reason 2 – Reviewing An Agreement from the Internet Takes Longer Than Drafting A New, Tailored Agreement  When asked to review a document I didn’t draft, it takes longer – end of story. I am not familiar with the language of the contract, so I have to read every, single, sentence, to be sure it’s accurate.  Additionally, unless you are an attorney, I bet many items and customary clauses are probably missing from the contract and the structure is confusing — meaning, it’s not just my suggestion about what to “change” in the contract, but also what to add, move around, or omit entirely.

Reason 3 – Semantics Matter – How do I know you Frankenstein-ed a contract together? Because each party to the contract has three different names, and the wording style changes from clause to clause. This may not seem like a huge issue, but it surely is. Contracts are about content, but also about semantics – sometimes that comma really does make a huge difference, and pasting in clauses from five different contracts can lead to very big unintended consequences. Furthermore, legalese is horrible. Everyone hates it (even us) – and form documents from the Internet are FULL of it – it serves little purpose to confuse everyone and create issues.

Reason 4 – What Is the Goal of a “Quick Review?”  What is a quick review anyway? I think reading over Reasons 1 – 3, it’s clear that there is no such thing…but, that leads to a larger question – what is the client’s goal in requesting a “quick review” vs. a new contract? In my experience, the client’s imagined cost savings is one reason, but a second is a “stamp of approval” from the attorney blessing the new homemade contract. First, as stated in Reason 2, it takes longer to review a contract, so there are no real cost savings from a time standpoint if I am truly reviewing the contract in detail. Second, in regard to the “stamp of approval”, nobody can really “approve” a contract they did not draft, so if I didn’t draft it, I won’t approve it. I’ll make suggestions, even provide some sample language, but drafting and integrating those suggestions are on the client, if they choose to be the one drafting the agreement. If you want the peace of mind, stamp of approval, and malpractice insurance coverage, then the attorney needs to draft the contract.

Reason 5 – YOUR TIME IS WORTH MORE – This is a no brainer! You are an expert in your business, and we, the attorneys, are experts in our business (the law). Instead of trying to armchair quarterback a new contract over the weekend and spending hours on it (and Google), concentrate on growing your business, and let me concentrate on making sure your agreements are top-notch. In the scheme of things, getting a new contract drafted will cost a few hundred bucks, protect you as you intend, and save you hours of time – which is surely worth more!

In conclusion, the choice is clear, concentrate on your business, and let us concentrate on the paperwork. You will get a better product, save tons of time, and have the peace of mind that the agreements will be enforceable.

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