|
PREPRINTED FORMS
DON’T GO TO TRIAL
Jeremy X was the
smartest client I had and he was telling me he was the dumbest man on
earth. That was mostly because I had just told him what it would cost to
enforce the contract he had put before me on my desk, blushing as he did
so. I had never seen the contract before and he could tell from my
expression that I was not pleased.
“It’s from a book.
Well, from a disc, really.”
I said nothing, just
looked at him. He blinked, then began to stare at the wall behind my
head.
“You see, the
employment contract we worked on…what…five years ago?…well, it cost me
two thousand dollars.” His eyes dropped to mine, then slipped away to
the document still sitting on my desk. “You can buy these books…you
know, at most stores now…and on the web...they have preprinted forms in
them. On disc. You can download…Seem pretty complete to me…”
At last he looked at
me. “You always said boiler plates make up a lot of each contract. I
mean, hell, most of your contracts are just forms, aren’t they? I mean,
you don’t rewrite each word every time, do you?”
I straightened in my
chair and looked at the document. It was quite professional looking,
section numbers, bold titles, a lot of legal jargon. I flipped through
the pages to the enforcement section, already knowing what I would not
find. I was right. The key clauses were not there, the ones that would
make this contract practical to enforce. No jurisdiction vesting
locally. No attorneys fees clause awarding fees to the prevailing party.
No
arbitration. And we were going to face suing a giant
company with in house lawyers in the dozens. He was watching me, his
fingers nervously tapping on the arms of the client chair.
I sighed. “You know
who wrote this contract, Jeremy?”
He shook his head.
“Neither do I. But
you put your future in his hands, didn’t you? How long did you spend
checking me out before you hired me?”
He nodded but said
nothing. I kept going. “Five years of working together for your boss,
you in the sales department, right? You and I knew each other pretty
well before you trusted me enough to write the terms that would bind you
and negotiate your future with your business partners. That was smart. A
lot was at stake. You need to know who is advising you…”
He sighed now.
“Yeah, yeah…”
I leaned forward. “I
don’t know who made the form but I do know who often do. And let me tell
you a secret. It’s the same secret that all those gurus telling you how
to invest to make millions hide…if they were so damned good, they
wouldn’t be telling you how to make the money. They’d be doing it
themselves. And if this fellow was good at drafting and negotiating
contracts and advising clients, he wouldn’t be making less than sixty
thousand a year writing for the guy who is peddling the book…he’d be
sitting at this desk annoying you as I am doing and making one hell of a
lot more…”
I stopped myself
since I found to my surprise I was really upset. That was odd….this sort
of thing could happen any time. The form books are everywhere, on line,
in most stores, and seem very well put together, very tempting. Lawyers
are expensive, it takes time and money to use them and how much easier
to simply make your own document…I knew that’s what a lot of people
thought and, like Jeremy, if all goes well, never learn why it’s a
mistake. But this emotion? Where did it come from?
Then I remembered. I
had been in this movie before, perhaps fifteen years ago, when forms on
line did not exist but form books did and one of my favorite people was
almost destroyed by a kid he never met who lived in a commune in
Northern California who had had never even been within five hundred
miles of my friend, but had actually ended up drafting the most
important document in my friend’s life. And neither of them knew it at
the time.
My friend, Eddy, was
setting up a shoe importing business on a limited budget, had already
established his contacts in Milan for sourcing, had customers lined up
and just needed to arrange letters of credit and some finish work on the
product here. He had gone way over budget on legal since the Milanese
had been tougher in their negotiations than he had anticipated and
figured a form from the book would do for the local manufacturer who
would reinforce the heel on the product. The first time I saw the
contract was after the local manufacturer had destroyed the value of
about of half of the first shipment less than a month before the first
big show. Eddy was besides himself.
The local
manufacturer was not small fry and had money to pay if we sued him. And
to fight us if he had to. To Eddy, his negligence was obvious, the seams
connecting the heel to the shoe were the wrong color and stitched in a
manner that was, “inconsistent with the design intentions,” Eddy
insisted.
But the form had
this vague clause about duties that made no sense as far as I could
tell. It had a great deal of verbiage, but finally stated, “Product will
be manufactured strictly in accordance with design and specifications
provided by the Party responsible for the merchantability of the
Product.”
I read that three
times and looked at Eddy. “What does this mean?”
He picked it up and
his lips moved as he read it. “That they have to make it on design and
spec, of course. They didn’t…they failed to put in a stitching that
could…
“That’s not what it
says. It says they have to manufacture that in accord with the design
provided by the Party responsible for the merchantability of the
Product. Who is responsible for that? What does it mean?”
He looked at me as
if I was nuts. “We are the designers, of course. They have to follow
our design.”
“Then, they provided
no design and specifications?”
“No, they were mine.
The guys in Milan, really, Very high end.”
“The local guys did
nothing as to designs and specs at all?”
“Well, they had me
make an alteration on the heel due to manufacturing requirements. No big
thing…just changed the materials…and connecting points…they said it was
necessary.”
“Then it was partly
their design?”
“No…I provided the
design…”
“But they worked on
changing the design on the heel, right?”
“Yeah…but not the
tops…”
“Where is the
defect? What has destroyed the value of half your shoes…?”
“Well, the heel in
part…but really where it attaches. The seam is too obvious, ugly, you
see…”
“And they designed
that…to make it work, right?. And designed it in conformity with the
specs they created? I mean, now you can walk on it, it doesn’t collapse
under the foot?”
“But it’s ugly. No
one will buy it.”
“Does it serve its
purpose…can you walk on it?”
“Of course you can,
but no one will buy it. It’s ugly…”
“Eddy, read that
clause again and tell me if they violated the contract…”
He read it
again…then again more slowly. His tone was exasperated. “That’s not what
it means….it means that they must manufacture so the product
accomplishes its purpose…I mean, what’s the point of a fancy shoe that’s
ugly?…Who cares if it works? I mean, so you can walk on it, that’s
irrelevant…”
“Did you discuss the
clause with the local manufacturer?”
“No, I mean it was a
form. Everyone knows a form.”
“I don’t know this
form. Who wrote it?”
He shrugged, truly
upset by now. “Damned if I know. From a book. Talk to the guy who wrote
the clause, you will see what it meant.”
So it was three
months later I was on the telephone to the guy who drafted it to see how
he had developed the wording. If it had a common usage in the industry,
I could use that as evidence as to the expected duties of the parties.
It was a form book, yes, but perhaps the book publisher had hired a
lawyer who had worked in the garment and shoe industry a thousand years
and knew the usages and procedures typically understood.
And by then it
mattered. For Eddy had not been allowed in the show since he could not
guaranty delivery, owed several hundred thousand to some quite angry
Milanese, and if he could not recover significant sums from the local
manufacturer, was bankrupt. With two kids in college and a wife already
angry, he told me he was worried his marriage might not survive this set
back.
He had told me this
over coffee at the Starbucks near our office. His normally immaculate
suit and tie were rumpled now. He told me he had spent the night at a
motel after he and his wife had argued past midnight. He kept stretching
his neck as he talked, hands nervously tapping the table.
“Natalie is pretty
high strung, you know.”
“Well, she’s
worried, Eddy.”
“I’m not? But I told
her all businesses have set backs. She’s got to back me in the hard
times, not just the good times.”
“She knows that…”
He stared out the
window to the busy street. “It’s ‘cause my daughter called. She needed
to book the trip back home for Christmas and I hadn’t sent the check so
she could do that. Wanted to remind me. And I had to say we’d have to
skip the trip home this season and Natalie…well, she broke into our
phone call and said she’d go into her savings, that the family belonged
together and it got pretty intense.”
I said nothing.
“I mean, it’s just
for a while, right? We’re going to win this one, right?” He put on what
he thought was a confident smile and patted my shoulder.
So I was pretty
intense myself when I finally tracked down the drafter of the form on
the telephone. The publisher had been reluctant to give me the contact
information. I had to threaten to subpoena him before he reluctantly
muttered the telephone number to me and as I sat at my desk, the
questions I intended to ask scribbled on a sheet in front of me, I
wondered who I was going to be talking to.
The number was for a
rural location in the extreme north part of California. I figured the
guy must be retired by now, living in the country.
The telephone was
answered by what seemed to be a young girl. I asked for Peter Anthorp.
“Who?”
“Peter Anthorp. He’s
an attorney I believe.”
“There isn’t anyone
here by that name.” There was a good deal of noise behind her, people
talking and laughing. Suddenly she shouted off the phone. “Hey, anyone
here by the name of Peter Antwerp…”
“Anthorp,” I
corrected..”
“Anthorp, “ she
shouted to the crowd.
I could hear a voice
behind her. “Hey, that’s Oak Leaves.”
She didn’t believe
it. “Oak Leaves? He’s not a lawyer. This guy is looking for a lawyer…”
“He went to law
school. Hey, he’s a smart guy. It’s Oak Leaves, I tell you.”
“Oak leaves? “ I
asked, but she ignored me.
“Where is he?” she
yelled behind her.
There was a general
murmur, then a voice even louder than the rest was heard. “He said he
had to get back in touch with what it was about. He went to the Valley.
He said he’d return next week, maybe the week after.”
“You hear that?” she
asked, in a hurry to hang up.
“Hold on. Do you
know this Peter?”
“You hold on. I just
live here…’ Much more mumbling on the phone, then a strong young male
voice came on the line.
“Who are you, man?”
“I’m a lawyer
looking to ask Peter some questions.”
“Yeah? About what?”
“About a contract he
drafted. Look how can I reach him?”
He laughed. “From
the sound of your voice, you could never reach him, man. I mean, you
could see him, you could talk to him…but you two could not reach each
other. What, you sitting in a city now, making big bucks, moving and
grooving with the shakers…?”
I held my temper.
“Peter wrote a contract. I need to ask him about it.”
“Well, he’s back in
a week or two. Give me your number.”
I did so, but
couldn’t stop there. “Tell me, Peter is a lawyer, right?”
“Sure. Smart. Top
law school. Harvard, I think.”
“He’s practiced
long?”
“We all practice.
Practice at life.”
“Law?”
“I don’t know. Can’t
be too long, he can’t be over twenty eight, twenty nine.”
“He ever do business
law? Contract law?”
He laughed.
“He ever go to trial
that you know of?”
“Only if they busted
him.”
He hung up.
Peter did call me
back. Six months later, while I was literally sitting in the hall
waiting for the trial calendar to be called, Eddy pacing up and down the
corridor. My cell rang. It was Peter.
“Sorry, man, only
just found out you needed to talk to me. Been very very far away…”
“Yeah, but now I
need to know where you obtained the wording for the design and
manufacturing clause. Did you get my letter?”
“Sort of…”
“What do you mean?”
“Part of it was
already gone, I think. We all share mail here…”
I looked up at Eddy
staring at me. I stared at the floor and concentrated. “Look, did you
get the contract section about the design…”
“Yeah, yeah. I got
that.”
“Where did you get
that wording? Did you find it in any text…”
“Hey, ease up…you
got to calm down…”
“I’m calm enough.
Now where did you get that wording? I need to know, like now.”
A pause. “I’m not
sure. It’s a long time ago. A life time ago. Probably from another
contract I was looking at. I wouldn’t have made it up, I’m sure. I try
to do a good job, you know…”
“What sources did
you use for drafting? Did you ever go to trial and use that verbiage?
Ever defend it in a trial or arbitration?”
“I don’t do trials.
I write.”
I took a deep
breath. “So, where did you find this wording?”
“I’m creative in my
writing. I probably took an old form and made it better. We lawyers need
to become creative, not just use the old world and the old words…”
“Look, Peter, I’m in
trial in ten minutes. I have to stand in front of a judge and defend
your damned wording and he’s going to want to know trade usage. They are
just words to you. I have to defend those words and their meaning before
a trained and expensive opponent. Every word. Every damned syllable. You
may be floating above the earth but my client is stuck in reality…”
Eddy pulled the
phone from me and started talking. “This is Peter, right?”
I could just make
out Peter’s voice as Eddy talked to him.
“Yeah, who is this?”
“It’s Eddy, the man
whose economic future is on the line. I mean, we’re in trial in a few
minutes. Can’t you help us out, here? Who used that wording before? It
matters to me. It matters to my family.”
Silence on the
phone. Then, “Hey, I’m sorry man. I just can’t remember that anymore,
but I’m sure it’s good wording. I do good work.”
“You don’t know if
it was used before you picked it?”
“I just can’t say
now…but if it’s good wording, it’s good wording.”
Eddy’s face
tightened. “My life is on the line and you don’t know where you got the
wording…?”
Now I pulled the
phone from Eddy, but it didn’t matter. Peter had hung up.
The bailiff opened
the court room door a crack and motioned to us to come in. It was
Showtime.
Eddy filed
bankruptcy about six months later. But his marriage survived. Barely. He
never went into business again, getting a job selling shoes with a
steady paycheck. His wife had insisted on that. And I never heard from
Peter again.
So, looking at
Jeremy and thinking about the standard terms we always put in our
Contracts
and knowing that none of them would be there, I found it hard to
control those memories. Eddy’s life has been forever altered by some kid
who had never had to fight for the wording in a court of law, who never
had to stand and explain to a hard eyed judge what a particular phrase
really meant.
“We have a rule in
our office, Jeremy,” I explained. “An absolute rule.”
“Yeah?”
“No lawyer writes a
clause who is not prepared to go to court and defend it. No lawyer
writes words and let’s others do the fighting for what they mean and how
they must be interpreted. We find that forces the attorneys to be very,
very, very careful in verbiage and drafting. It makes them very serious
and very good. You cook it, you eat it. You draft it, you defend it.”
“Yeah, I can see
that.”
And, Jeremy?”
“Yeah?”
“Preprinted forms
never go to trial.” |
