A consulting contract without bullshit
When I work with clients, we sometimes trade contracts written in legalese. Both sides have a pretty good idea what we want. So why not just say it?
Just for reference, here’s what I do:
- I help authors with book ideas.
- I help authors write book proposals.
- I run clear writing workshops for companies.
- I give speeches.
- I edit articles, blog posts, web sites, and books.
If you’re a consultant, you probably do things a lot like that.
So, here’s my concept of a consulting contract without bullshit (this is just a concept, I’m not a lawyer):
This is an agreement between you and me. I’m a consultant. You’re my client. You may be a person or a company.
I am producing a work for hire. I’m a contractor, not an employee.
I agree to keep your proprietary information secret.
If you hire me to produce or edit something for you, what I produce belongs to you. However, if I happen to come up with an idea that has nothing to do with your business while I’m working for you, that idea belongs to me.
If you follow my advice and it doesn’t work out, that’s your problem.
You’ll pay me part of my fee up front, because that way I know I won’t get stiffed. That will be half my fee for a workshop and one-third for a proposal or editing job. You’ll pay me the rest when I hit milestones or finish the job — that’s how you make sure I’m delivering on my promises.
I’ll estimate my expenses beforehand. I’ll give you a heads-up if I learn that there’s going to be an additional expense beyond that, so you can get the chance to approve that expense (or not). You’ll pay me for those expenses as long as I can prove that I paid them and they’re within 20% of the estimate.
Either of us can terminate this agreement at any time. If I terminate it, I’ll return the money for the portion of the work I didn’t complete. If you terminate it, you’ll pay me for the work I already did.
That’s it. Now we’re on the same page.
If you’re a lawyer: could you make this into a real contract without making it into impenetrable legalese?
If you hire consultants: would this be sufficient for you? What’s missing?
If you’re a consultant: what’s missing? What else does this “contract” need?
Went to law school, didn’t take a bar exam, so I’m not a lawyer. But what I know from my legal education is that your clear expression is not a complete contract. We can wish it to be easier, but it’s not. First rule of a legal contract is to name the parties. Second is to state the “consideration,” usually how much will be paid. Third is what state law governs if one party to the contract flakes out and causes the other one harm. And finally, what the heck happens to that flake in the event of a flake-out. There you have it, Josh. It’s all gotta be in there or it’s not a legal contract. Centuries of precedent on that…
I forgot something important in my original comment. It’s all about enforcement. If a judge can’t tell what the parties to the contract intended, what they wanted to have happen, then he or she can’t enforce their agreement. All that boring stuff is to give a judge what’s needed to enforce the contractual agreement. Don’t forget that, it’s foundational to protection under the law. Meaning, it can’t just be what the parties understand, a third party has to be able to understand it completely, too.
I suppose, you might add 2 statements:
1. How to resolve disagreements (how, when, where) so the contract won’t get stuck forever in unfulfilled state.
— HOW (first we try to settle it down by ourself),
— WHEN (after 5 days of settling it down without success),
— WHERE (we bring our disagreement into local court, federal court, etc).
2. Optionally forbid cession of rights of the contract to some third party. So you won’t have to deal with any new partner or a repo man.
Josh,
As both a consultant and arbitrator, I see your approach as clear and to the point.
A good and valid contract can ( and often has been) can be written on a cocktail napkin or a table cloth.
That’s true, as long as nothing goes wrong…
I would add terms for:
1. Warranty and Acceptance. If something is perceived to be “not right” or “not up to spec” in the deliverables, for how long can the client demand that it be remedied?
2. Limitation of Liability. If you’re doing a $10k project but can do $100k worth of harm, is their any limitation to your liability as a contractor?
I have worked with professional services contacts for about 20 years and respect the effort to simplify dense legalese, but it tends to be written that way for a reason: so that all parties (and third parties, and successors) can be clear on what was intended. I’ve seen my share of sloppily written contacts, but don’t think that dense legal language is (necessarily) bullshit.