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.
“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.”
“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 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?”
“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.”
“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.”
“Preprinted forms never go to trial.”