The Fine Print

I have lost count of the number of times clients have asked me to draft complicated non-disclosure agreements…so long as the document is not more than “two pages max.”

Tips for techs for taming your lawyer

So you think you need a lawyer.

As a member of the legal profession specializing in IT, I have observed that many IT professionals have great difficulty in communicating effectively with their lawyers. Many creative, brilliant IT professionals are acutely uncomfortable with the world of high finance and commerce as represented by lawyers in lofty glass towers.

To avoid wasting lawyer time (and client money), I offer the following list of suggestions that should help make the process of working with legal counsel more useful and pleasant.

Know why you are seeing your lawyer. In a perfect world, clients come to their lawyers before a crisis, not after. Unfortunately, not many clients wait for the lawyer to review the document before signing it, and so they get into trouble. It is critical to know, and clearly communicate, exactly what you want your lawyer to do. Making sure both of you understand this is the key to keeping legal costs down and the relationship productive. Taking the time to provide written instruction will clarify the thought processes in your head as well as narrowing the scope of the task for your lawyer.

Establish costs in advance. Most lawyers work on the “meter principle” — billing for the time it takes to draft your agreement or perform required services, plus disbursements (photocopies, faxes, etc.). However, in the IT area, you can usually arrange “flat fee” charges for specific projects (even if this means “eating time”) unless significant developments (like especially acrimonious negotiations) occur.

The important thing is to keep on top of the costs and the time spent completing your work so as to avoid any nasty surprises come billing time. Remember that your lawyer will generally charge for time spent giving general business advice in addition to preparing documentation.

Talk to your lawyer about how to be cost efficient, for example, by using e-mail instead of sending faxes of drafts and checking with the lawyer’s legal assistant (and not the lawyer) for status reports. The truth is, however, that good lawyers cost money and it is not recommended that you entrust your complex Web site development agreement to the lawyer who does not have experience in that field. Very few lawyers have expertise in the IT field and as a result legal services will not be as competitive as in other areas.

Understand your documents. Modern lawyers are supposed to use plain English so there is no reason you shouldn’t understand your own employment contract or consulting agreement. If there is a term or a concept that you find baffling, don’t be afraid to ask for an explanation as most lawyers love to explain the brilliance of their own drafting to you.

Be sure to understand the “mechanics” of the documents that are prepared for you. For example, if your development agreement contains certain tests that must be passed before you can roll out the product or service, be certain these make sense to you. A colleague of mine recently realized that his client did not understand how the support and maintenance obligations in the licence that my friend had prepared nine months earlier functioned, even though the company had been using the document as their “standard form.”

And don’t forget to read the schedules and exhibits to your agreements (which often contain such pertinent information as prices and technical descriptions) to ensure they are as precise as they need to be (the test should be whether a judge would understand them) and whether they accurately convey the business deal that you have negotiated.

Size does matter. While brevity may be the soul of wit in fine literature, this may not be true in legal writing. I have lost count of the number of times clients have asked me to draft complicated non-disclosure agreements which safeguard all of their intellectual property rights for all eternity and on every planet in the solar system, so long as the document is not more than “two pages max.” After all, no one wants to read long, boring legal documents.

While I have become very proficient at producing agreements with minuscule typeface and virtually non-existent bottom margins, the truth is that the smaller the agreement, the more one risks leaving out some area of vital concern to the client.

Set reasonable deadlines. As human beings (although some would argue this point), lawyers tend to produce better work when given reasonable deadlines, say more than two hours advance notice. While there are always emergencies that justify immediate turnaround (like requesting a confidentiality agreement because you are about to go into a meeting to discuss ultra-secret merger talks with your rival) good work does take time and lawyers, like the business clients they are serving, need to think about the issues before they can spit out something that makes good sense for the parties concerned.

There you have it. Practical advice for making both our lives easier.

Lifshitz is a lawyer practising at the Toronto law firm of Smith Lyons where she specializes in information technology law. She is at [email protected].

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