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Tuesday, October 27, 2009

Get It In Writing

A lawyer’s secrets to better contracts

It’s a universal truth that economic downturns bring increased litigation as people attempt to minimize the liability they have under contracts. Even where parties may have been in complete agreement before the downturn, the downturn inevitably brings disputes over the interpretation of each party’s rights and responsibilities. Often, even simple contracts become the subject of costly litigation.

This reality is no different for photographers, and the subjective nature of a photographer’s performance of an agreement adds an additional complication that may permit a skilled attorney or difficult client to find a way around even a well-drafted agreement.

The Good, The Bad And The Ugly
One of filmmaker Samuel Goldwyn’s widely known quotations provides that “[a] verbal contract isn’t worth the paper it’s written on.” However, a poorly drafted written agreement is worth little more than the verbal contract, and in some cases, even less.

From a lawyer’s standpoint, there are two types of poorly drafted agreements, each with its own unique problems. The first type that even some laypeople would recognize as being poorly drafted is an incomprehensible agreement. Sometimes this is the result of archaic legalese, or worse, legalese that has been mistakenly modified. Sometimes, these sorts of agreements just aren’t coherent: poor grammar, spelling errors and use of terms that don’t adequately describe each party’s rights and obligations conspire to make the agreement as worthless as if it didn’t exist (and the fact that the parties to the agreement might have an understanding as to what the agreement means doesn’t help down the road when there’s a dispute and a court is called upon to interpret the agreement).

The second, more common type of poorly drafted agreement is one that doesn’t adequately anticipate and address problems that may arise in the future. Any agreement that merely lays out the basics of the engagement—where and when the photographer will render services, and how much and when the client is expected to pay for those services—without addressing the problems that almost invariably arise, qualifies as a poorly drafted agreement.

The average lawyer who drafts contracts should be in a position to address certain common issues, such as third-party liability, indemnification, insurance, force majeure, governing law, etc. However, unless a lawyer is intimately familiar with the photographic industry, and more precisely, your business, it’s unlikely that the lawyer will anticipate the same problems as you would. Part of the challenge, at least from the lawyer’s point of view, is to understand enough of the photographer’s business to adequately anticipate problems. The other part of that challenge, from the photographer’s point of view, is to adequately communicate the photographer’s experiences so that the lawyer can address them in a contract.


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