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.
        and...
• 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.

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 $ucker$.



Spirit of the Monastery

I understand your point, but I still disagree to a large extent with your conclusion.

MJD's point was to say: "Use your mind, be reasonable, don't accept to sign anything." And I agree with him. Should I have a lawyer on retainer? I doubt.

To clarify, possibly unlike you, I do not really own a business. I do not have any employees. I am just a freelance IT consultant, working essentially full-time for a tier-one telecommunication operator (although, technically, this telco is my end client, I am billing my services to an intermediate IT service provider).

I have an accountant on retainer. Although I passed an MBA and have some decent knowledge on accounting, I prefer my accounts and professional tax returns to be prepared by a professional accountant. She can do it much more efficiently that I could, so I should better spend my time working for my client.

But do I need a lawyer on retainer? Probably not. Before I completed my CS master's degrees (one in computer science and one in software engineering), I was a translator for a famous law firm (for 10 years). I think that I understand legalese jargon well enough to be able to understand the consequences of an agreement.

Alright, my profile might be untypical, but I think that reading a contract with good sense should probably enough in many cases. And I think that this was essentially MJD's point.

ask for simple english contract ... read it, if you don't understand something ask what it means ... ask why they didn't write that complicated part in simple english ... ask for annotated contract

if they're more than 5 employees they'll be able to explain stuff because they do it all the time ...

unless you're an intern they'll also ought to be willing to write these explanations down / annotate the contract

nobody likes surprise contracts

http://developers.slashdot.org/story/02/03/21/0139244/Beware-Employment-Contracts

They have no responsibility in good faith negotiations to expose or expound on elements (or your potential "pain points") that are written in a contract. If the contract states that you need to produce code or they will cut off your hand in the middle of a large fairly tepid paragraph. And you ask them what that means, they don't have any need to point out the fact that your hand will be cut off if you do not produce the code. "Our lawyer wrote this, we can't give you legal advice" "I don't know but we would never use it" "That just goes over some terms" or any matter of responses are perfectly acceptable to a question like that. Basically if you are expecting ANY material benefit from asking the other party for advice/their take when considering a contract you are a little more than drooling on your shoes.

To clarify, possibly unlike you, I do not really own a business.   I do not have any employees.   I am just a freelance IT consultant, working essentially full-time for a tier-one telecommunication operator (although, technically, this telco is my end client, I am billing my services to an intermediate IT service provider).

Heh...   “Tom would whip you into shape, fairly quickly,” just as he once did me.   “You,” in fact, “do ‘own a business.”

1. Even if that business has exactly one employee ... you ... in the eyes of the law [in any civilized country ...], it does have one employee:   you.
2. The “end client” of that [currently, “one-man band”] business is:   “the intermediate IT service-provider.”   (N-O-T “the telco!”)

As Tom himself would be very quick to tell you, there are many forms of business in this world which consist of providing one of two things to “the rest of the world”:   either services, based on expertise, or counsel, also based on expertise.   On top of these two is a third set, which consists of providing an unpredictable amalgam of both.

Well, as it turns out, a great many lawyers realize that they, themselves, properly occupy this “third set.”

Therefore, they make it their business to seek-out and to educate other entrepreneurs, that they, in fact, properly occupy this “third set,” too.

“Guess what ... Tom’s right.”

Abrupt and liberal use of Tom out of any context. Is Tom your name that is being used in third person? Creepy.