A few years ago, my family rented a modest home on the outskirts of Grants Pass. One of the perks of the neighborhood was a right-of-way down the street which led to the beautiful Rogue River. Only the residents of our street knew about the right-of-way, so the bank of the river in this location was always peaceful. My children would often ask me if we could walk down to the river and skip rocks.
One day, my five and seven year old sons saw another neighbor who was fishing in the river. Their interest was triggered. They asked if we could go fishing. I must admit I was conflicted in this request. Though pleased my boys were taking an interest in the outdoors, I knew very little about fishing. Nevertheless, in an effort not to disappoint, I relented and found myself days later in a sporting goods store. Needless to say, I took a casual approach in selecting our fishing gear. I didn’t realize it at the time, but with every item placed in my shopping cart, I made a choice that would affect the success of our fishing expedition.
Rather than seek the advice of a fisherman, I flippantly resolved to feign angling knowledge and interest. I would spend the bare minimum on fishing gear, invest as little time as possible on the river bank blindly casting into the river, to finally return home satisfied in the fulfillment of my fatherly duty of taking my sons fishing. To put it bluntly, my interest was in getting through this as quickly and as inexpensively as possible. Needless to say, we caught no fish. Shortly thereafter, we purchased our first home and moved away from the river.
I have since developed a more heartfelt interest in fishing. I enjoy backpacking in the Oregon back country and have the goal of catching and consuming trout in the wild. Looking back, I understand how my choice to approach fishing with an obligatory attitude affected my preparation. One shortcoming among many was my selection of inadequate and even unnecessary tools for the job. I only discovered later I was using the wrong, rod, hooks, bait, and technique. To summarize my thinking at the time, I would rather guess and get through it on a vain hope that my sons wouldn’t be disappointed than to ask an experienced fisherman for help. Living in a town were fishing seems to be second nature to everyone you meet, I was intimidated by my lack of knowledge and familiarity upon the subject.
My attitude and approach to fishing is very similar to individuals’ attitude and approach to entering legally enforceable agreements, otherwise known simply as contracts. Fishing was foreign and uncomfortable for me. What made it more difficult was my perception that everyone else around me was a decent fisherman and that others would expect me, at my age, to know what I was doing. In my work as an attorney, I have witnessed the same phenomenon in grown adults’ approach to forming positive ongoing business relationships.
Strong business relationships are built upon trust, clarity, and predictability. Contracts encourage those principles. We need contracts not merely because down the road we may need to enforce certain legal rights, but because the very process of forming a contract is the genesis of building an ongoing business relationship.
It is the process of negotiating a contract that most ensures the success of the agreement, not the final agreement itself, which is a tool of contract. The final written product is merely a manifestation of all the negotiations, terms, disclosures, and assurances already made between the parties which acts both as a reference for future agreements and tangible evidence for the purpose of enforcing the negotiated provisions. Purchasing a legal form to "make it legal", is no substitute for the process of contract. Such an approach is shortsighted in that the parties confine themselves to the universe of the language of the form when they don’t have to. It is as though they are saying, "This form off of the web is more important than our agreement." Additionally, it does little to build a relationship of trust between the parties for future business opportunities and referrals.
Business thrives on certainty. Strong relationships devised through the process of contract yield certainty through predictability. What could be better for a business than a lucrative and successful contract? More contracts! Bigger contracts! Long-term contracts that ensure the continued viability of the business with ongoing stream of predictable income and networking opportunity.
So, how does one know when and to what extent an agreement should be memorialized in a written contract? One might as well ask, when should I go fishing to catch steelhead in the Rogue River? Just as I was successfully tempted to purchase fishing gear on the illusion that having general fishing gear would suffice, contracting parties face the same snare.
What type of fish are you fishing for? Why are you fishing, for sport or for food? Do you have the right bait? Do you know where the fish are, their patterns of behavior? If fishing for steelhead, when are they in the river? How does the weather affect their behavior? Will regulations restrict your fishing options? What happens if you breach those regulations? In other words, if you are not an experienced fisherman, you need a guide that knows the waters, the seasons, the regulations, and yes, the fish.
An inexperienced fisherman can no better catch steelhead in the Rogue River by ignoring these variables than an individual who does not inquire of an attorney. Choosing to completely ignore the process of contract and "going it alone" without an experienced guide eventually has its consequences, which are often dire. Attorneys will always have work because the consequences of failing to understand and embrace the process of contract results in contractual ambiguity. Contractual ambiguities create litigation, which is far more expensive, irritating, and exhausting than taking the time to work through the process of contract with an attorney.
The tools of contract you think are "good enough" (e.g. online forms, online document production companies with big advertising budgets, office supply forms) may be just as inapplicable as some of the fishing gear I purchased. Just as an experienced fishing guide can instruct me in the proper gear, technique and so forth, so can an attorney guide you through the process of contract, thereby building secure ongoing business relationships. As the saying goes, "Give a man a fish, you feed him for a day. Teach a man to fish, you feed him for a lifetime." Doing things the right way may require more effort up front, but they always pay greater dividends in the long run.
