• You lawyers always seem to be so enamored with getting everything in writing, especially agreements. What's the big deal? Telephone calls, handshakes and emails have always worked for me.

We recommend written agreements, be they one page letters or multi-page contracts, for the day when the oral or undocumented understanding no longer works. It may no longer work because the parties no longer agree (if they ever really did) as to what they agreed to in the first place. Such disagreements are a fertile source of another thing lawyers do, lawsuits.

To be more specific the benefits of written agreements include:

Mitigation of ambiguity and misunderstanding. We concede that ambiguity and misunderstanding can occur in the otherwise best-written agreement (sometimes deliberately so), but written agreements at least commit the parties to the same piece of paper.

The administration of the agreement can be delegated to people who weren’t present at the creation and may not otherwise have a clue as to what the original negotiators agreed to. We always approach written agreements with the idea that none of the people who were responsible for negotiating it will again be available the day after its signed. This is also a check on the completeness and understandability of the document.

Written agreements force the parties to address issues that they might overlook or even try to avoid. Some of these items are referred to as “boiler plate” and include items like indemnification issues. If something goes wrong, who’s responsible and for how much? When can the agreement be prematurely terminated, assuming we know its term? If we have a dispute how will it be resolved? Courthouse or arbitration? Where will the dispute be heard, in my hometown or yours?

Note that a written agreement is not a substitute for good deal terms. It’s always up to the business people to determine the proper price, quantity, and quality of the products or services they intend to sell or buy. We can write the clearest, cleanest, most complete agreement imaginable for either the best deal you could ever make or the worst deal you could ever make.