16 July 2010

A Contract Is Not A Kegger

Anecdotal warning. This post is all unsupportable anecdotal observation. Your results and opinion may vary enormously. And probably will.

Now that we have that out of the way, here’s the premise: verbal contracts cause more trouble than short contracts. Medium length contracts cause more trouble than short contracts. But long contracts and exceedingly short contracts are almost equally lacking in controversy. That is to say, verbal contracts and medium contracts generate more work for me than short or long contracts. 

And extremely long contracts generate as many, if not more, problems than verbal contracts.

Why? I’m glad you asked!

Verbal Contracts

Verbal contracts (a/k/a “handshake deal") are a problem because, as we know, eyewitness testimony is notoriously unreliable. And the scene of the contractual crime is no exception. Everyone saw something different and there is no record, however short, to help refresh people’s recollection. Hence, verbal contracts are bad news and the source of endless line-ups of the alleged perps.

Exceedingly Short Contracts

The haiku of contracts.  Back of the cocktail napkin sort of contracts up to a two or three page letter agreement. Just enough details to refresh the recollection of the party. Like a photo of a party where you can only see a couple of people but it causes you to remember most folks you saw at the party and the great time you had.

Medium Length Contracts

The short story of contracts. Much like short stories in The New Yorker, they seem to be going somewhere and then don’t. I blame the plain English movement. Don’t get me wrong, I’m all for straight-shootin’, plain as day kind of writing. But plain English folks often seem to mistake brevity for clarity. So there are just enough details to frame the dispute but not enough details to solve it, if you catch my drift. Medium length contracts are a no man’s land of 8 – 10 pages – you can see the white’s of their eyes and everyone starts firing.

Long Contracts

The novella. Here everyone thought of everything, wrote it down and threw in the kitchen sink. The Crime and Punishment of contracts. But with a good editor... It's the difference between catering a sophisticated party and throwing a kegger. Both have a large number of people in attendance but the first is governed by the rules of etiquette the second by the rules of the fraternity. Folks, no contract should be a kegger.

Extremely Long Contracts.

The novel with literary aspirations. These appear to have been written by Thomas Pynchon. The are very sophisticated and erudite. They make a great doorstop. They make the drafting lawyers feel like members of MENSA. The problem is most clients, judges and juries have never heard of MENSA. These contracts only make sense while being written by those writing them.  A day later and a new set of lawyers and they are subject to not just several but hundreds of interpretations. They are the Bible of contracts. They are the kind of contracts that gave rise to the plain English movement.  Contracts like this contain lots of semi-colons (and sub-sub-paragraphs) which are my favorite punctuation mark, but, as with tequila shots, results do not improve with more.  The line between too much and not enough is a fine line indeed.

Questions? That’s what the comments section is for.

Thanks for reading.

Richard Russeth

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