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Re^2: MJDs Contract Warnings - courtesy of Perlweekly

by ww (Archbishop)
on Mar 31, 2015 at 14:18 UTC ( #1122004=note: print w/replies, xml ) Need Help??

in reply to Re: MJDs Contract Warnings - courtesy of Perlweekly
in thread MJDs Contract Warnings - courtesy of Perlweekly

Yes, 'the day will come...' and yes, 'there is always “time to smoke it over,”....'

So I consider some of sundialsvc4's comments meritorious but his opening inference, ' the moral of this story is that you should “have a lawyer on retainer.”' and the cost argument in the second para are -- IMO -- wrong and wrong-headed.

OT but perhaps informative: my own mindset keeps me trying to balance MJD's stance and my own "kill all the lawyers" rage. I'm convinced that today's business culture (at least in the U.S.) is wasteful for both sides of many ordinary transactions because business owners and managers are pushed into liability-phobia as much by fear of shareholder suits (fomented by unscrupulous lawyers) as by the prospect of actually incurring liability.

But back to an on topic reply, two points:

  • most lawyers I know who accept retainers still charge their standard (or near-their-standard) hourly rates. Retainers are NOT full payment for an open-ended service deal.
  • Having a lawyer on retainer is NOT a minor expense for many of the likely readers, including many of those whose income from dev- or programmer-work is merely a nice-to-have extra or at a scrape-by level. At that level of income, tax-deductibility counts for less than constraining expenses.

IMO, for those in that situation, most of us need only make a point of KNOWING a lawyer who's competent to handle contractual language but should then pay for professional services only when necessary and only when confronted with a new issue -- be that allegedly innocuous language upon which a client insists or a circumstances which moot my next suggestion.

That leads to an alternate approach: HIRE a lawyer to draft a tightly drawn and narrowly scoped template; then fill in blanks such as the prospective-client's name, and present that as YOUR basis for negotiations. Of course, be ready to go back, paying an hourly rate, for help if there really must be legal details specific to the work.

Yeah, some prospects will be unwilling to work with you on that basis, but a sufficiently narrow offering that specifies the scope of work may just persuade the prospective buyer to save attorney-fee expense at that end... and save you the annual cost of keeping an attorney on retainer.

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Re^3: MJDs Contract Warnings - courtesy of Perlweekly
by sundialsvc4 (Abbot) on Mar 31, 2015 at 16:43 UTC

    Some lawyers are more than just people that get paid to extricate you from jail a tight spot:   they are business counselors who have a lot of experience in business negotiations.   Used wisely, that sort of thing can be the difference between a profitable software consulting business and “scrape by / beer money,” because a good expert in the field can help you see what’s worth pursuing and what’s likely not to be worth the time and/or the risk.

    My lawyer is like that.   I pay a periodic minimum fee for access to his expertise:   “use it or lose it.”   If he has to spend more time, he tells me in advance.   Since I am not buying his priority time, sometimes I have to wait a little bit.

    The “customarily obvious only in hindsight” point is to structure one’s business dealings in advance such that they are both profitable and protected, and go into any deal fully-informed.   (Or, make the judgment call not to enter into the deal at all.)   You can’t avoid what you don’t know to avoid.   Therefore, engage someone who does.   As an expert yourself, hire experts.

    If you literally cannot afford an attorney, I definitely recommend that you read the various books by the late Hermann Holz (nee “Herman Holtz” or various other Americanized spellings) about consulting contracts.   No, I still return to:   “find a way to afford an attorney,” as well as other qualified business advisors.   Given that you are in this business, you are in the business of providing expensive(!) professional services, and/or of providing work-products with a very large inherent-liability risk.

      ¿ So, I should read the original, s/lawyers/business consultants/ ?

      Good idea for ensuring that one has "business counselors who have a lot of experience in business negotiations" without the overhead of the Xyz $chool of $uing $ucker$.

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