Nigel 
August 26th,2009
Sometimes justice and a good result don't require a lawyer
When you’re highly trained in one area and spend most of your life focussing on that way of thinking you can end up forgetting what else counts in life.
Take law for instance. A lawyer has not just studied the law in depth but has also been soaked in the legal world view. What do I mean by that? I’m not suggesting I fully understand how lawyers think,and certainly not that all lawyers are the same,but here is one of the messages that has come across from my experiences with them:
If you don’t word a contract exactly right then you’re at serious risk of losing out or being sued,and you need a lawyer whose expertise is in the right area to check the contract for you.
Let’s examine what’s being said here. If a contract is sloppily worded then there is a possibility that someone will try to use the law to take unfair advantage. Fair enough,but how likely is this? Well,says the legal guy,it’s possible so you must be ready. Well,says the average guy,the contract looks okay to me and I really can’t afford a lawyer. In fact not only can’t I afford it,but when I tried to get a quote every legal practice I contacted said they didn’t have a specialist in that area. Also,I wanted to get the contract signed,and the other party threatened to withdraw if I didn’t get on with it.
Contracts are like taking school kids rock climbing. You do a risk assessment. You do this loosely in your head based on training and experience. Or these days you probably do it in writing in far more detail than is needed because you’re scared some nit-picking lawyer will catch you out in court if an accident happens.
(Note to ambulance-chasing lawyers:accidents do happen. It’s life. There is not always someone to blame. And if there’s no permanent damage then get a life and stop fussing.)
The idea of ’written risk assesments’moves us towards my point. You don’t just look at what might happen (one of the kids might fall off the cliff and die). You also look at how likely that result is (given my training and experience virtually impossible),and then you sort of multiply the two numbers together. Probability is already a number between 0 and 1 (or it is if you understand maths enough). Just express the seriousness of the possible result as a similar number,between 0 and 1 too.
Kid falls of cliff and dies:seriousness = 1 (ie to the non mathematical 100%)
Likelihood of this happening:probability = 0.000001 (ie to same 1 in a million –conservative estimate)
Multiply the two together and you get total risk = 0.000001,which is a very small result. Conclusion,the risk is very low indeed. Playing rugby for the school is far more dangerous. Let’s climb.
OK,now to apply that to consulting a lawyer over a contract.
Estimated problem to me if the contract’s faulty against me:seriousness = 0.4 (which is significant)
Likelihood of this happening:probability = 0.001 (I’m estimating one in a thousand contracts cause major problems)
Multiply them:total risk = 0.0004 (which is 4 in 10,000,a lot better than my chances of dying from swine flu)
No problem. I want to have a friendly,trusting relationship with the other person involved with the contract. I’m signing. If we find there’s a fault in the contract then we’ll almost certainly just agree to either ignore the problem or modify the contract. We’re okay.
Trouble is that most lawyers will only see the seriousness value,and not do the maths. That seems to be the way they’re trained.
And yes,I am expecting a rapid response from commenter Chris. (He gets this blog on RSS feed,and is the first person I consulted a while back about a contract. Smile Chris 
)
Right,I have now had a think. My points are these:
The reason people have contracts is to define and enforce expectations,and provide a legal remedy when things go wrong. To take the view that when things go wrong “we’ll sort it out between us”necessitates that you will agree with the other party what is the “right”thing to do when there is a problem in your agreement.
The difficulty with that approach is that the very fact that something has gone wrong is usually a sign that you haven’t agreed something properly –so what makes you think you’ll be able to sort it out,especially when there is potentially a large sum of money at stake? A woolly contract is therefore worse than no contract at all…If you’re going to work on trust that you can sort the problems out between you (I’d suggest you can’t in most circumstances,by the way) then why bother with a contract? Or,expressed in the alternative,if you don’t want an appropriate contract which helps you when things go wrong,what does that say about your perception of the value of what you’re contracting over?
I would say,however,that it is important to impose commercially appropriate limits on the effort put into the minutiae of the drafting. However,“We’ll sort it out amicably when things go wrong”is,in my submission,neither commercially workable nor appropriate! (If things have gone wrong,there is not a lot of chance of amicability!)
My final point is that I think your estimation of the risk of exposure due to inadequate drafting is at least an order of magnitude low,and that the seriousness of the consequences aren’t possible to quantify in the way that you’ve illustrated –so the overall risk would be unknown,but considerably more than you suggest. A missing factor is the value of the transaction –not just to you,but to the other party –because this has a significant effect on the absolute value of the risk when it materialises.
And don’t worry,I am –indeed –smiling
Dear Sir
This is the rapid response you were expecting (hereinafter “the Response”).
A more fullsome response which will add to the Response will be forthcoming in due course when I have considered in more detail how to respond. In the meantime,I do hope the Response meets with your approval.
Yours faithfully,
etc. etc.