What Do We Look for In Our Lawyers as Scribes?
In Friday’s post, I took the controversial position of favoring (or at least defending) “turgid legalese” over “beautiful writing” for most lawyers’ writing most of the time. Clients don’t curl up in their free time to read and relish our legal pleadings, our confidentiality agreements, letters of intent, Hart/Scott/Rodino filing forms and on and on and we should not take lots of time (and client dollars) polishing our writing as if clients (or anyone else) does read them in that way. Clients basically want to get from Point A to Point B legally, as quickly and cheaply as possible.
So, in my view, it is not only often unfair to criticize a lawyer for her pumped up prose and stylistic inconsistency; it is misguided. Having said that, if clients are not paying lawyers for “well written” documents in any literary sense, just what are they paying lawyers for?
This is not rocket science. The best lawyers:
- Know the law (which is often far more obscure and uncertain than people think);
- Combine extreme attention to detail (factual and legal detail) (commonly called “getting deep in the weeds”) while never losing perspective of the client’s over-all objectives (including balancing costs/benefits); and
- Give clients informed, sound, dispassionate, and selfless (that is, thinking entirely and only of what is in the client’s best interest, not in the lawyer’s, his firm’s or anyone else’s interest) legal advice and guidance.
It sounds so simple but it is so not.
U.S. District Court Judge Joan N. Ericksen’s recent decision in ITR vs. UPP, a generic business dispute, shows where a party could have used good legal counsel in a contract negotiation but, for whatever reason, does not seem to have gotten it.
Maybe ITR did not even bother to involve a lawyer in the contract negotiation. Maybe ITR got legal counsel but put the counsel under constraints that precluded the possibility of a complete review (i.e., “we need your approval in the next hour….”). Maybe the lawyer highlighted issues and risk and the client, for whatever reason. vetoed action based on the lawyer’s input. Or maybe a lawyer just missed something.
But what happened here highlights how a lawyer can show her skills and value:
ITR provides information technology services to help run applications over multiple otherwise incompatible operating systems, such as Microsoft Windows and Apple iOS. Upp is a technology company that provides a cloud-based warehouse system. ITR and Upp entered into an agreement to make Upp’s technology compatible with Apple devices.
The two companies first entered into a “Master Services Agreement” (“MSA”) and then separate subsequent agreements, which they called “Statements of Work” (“SOW”). Tiered agreements like this are a fairly widespread mechanism for arranging on-going projects between businesses.
ITR and Upp entered into three SOWs in 2014 but, at a certain point, Upp simply stopped paying invoices. ITR sued. Upp, predictably, counterclaimed that ITR’s work was faulty (defendants almost always say that, whether or not it is true). Then ITR went to Court seeking partial summary judgment on its unpaid invoices of more than $240,000, arguing that, whatever the Court ultimately decides about Upp’s counterclaims, there is no dispute that, under the parties’ MSA, ITR was supposed to be paid for unpaid invoices within 15 days of the contract’s termination.
Unfortunately for ITR, however, the SOWs did not include such favorable language for ITR. To the contrary, the SOWs provided:
Upon termination of this SOW, unless otherwise agreed to in writing by [Upp], [Upp’s] sole obligation to [ITR] will be for any unpaid Services: (i) performed in response to an authorized request from [Upp], and (ii) deemed acceptable to [Upp].
This provision is entirely inconsistent with the MSA provision. But note the conditional clause, “unless otherwise agreed to in writing by Upp.” That must include the MSA.
So ITR and Upp entered into two agreements with inconsistent provisions as to when payment was due. Unfortunately for ITR, language in the SOWs anticipated this risk, providing, “In the event of a conflict between the terms and conditions of this SOW or the [Master Services] Agreement, the terms and conditions of this SOW will control as to the conflict.”
A good lawyer could have caught a few things here: (1) the fact that the SOWs had what amounts to a “subordination clause,” elevating their terms over the MSA’s terms, and (2) the fact that the SOWs’ term saying that customer did not have to pay unless it “deemed [ITR’s work] acceptable” is quite a subjective condition and, therefore, Upp inserted a significant risk to ITR in the SOWs’ “legalese.”