Much as I want to agree with Legal Bizzle, I can’t do so given my strong dislike for pedantry.  The word has connotations of officious types who are sticklers for rules and stand by formality when all reason points to more pragmatic solutions.  To me pedantry means pettiness and trivia – arguing over unimportant minutiae.  Which lawyer would be proud to be associated with such negative connotations?

Certainly a good lawyer needs attention to detail but so do many other professionals.  In most areas of life the small stuff, the minute details can and do matter enormously.

So I turned to the dictionary for a definition of pedantry.  According to the Chambers English dictionary, to be a pedant is to “attach too much importance to merely formal matters in scholarship”.  However, none of the examples Legal Bizzle gave in his blog fit this category.  Far from being formal matters, the clauses he mentioned involved serious commercial consequences.  So, I don’t think Legal Bizzle is a pedant, though it mystifies me why he should want to be one.

Being ‘commercial’ is a desirable attribute in a lawyer.  I would argue it involves knowing when NOT to be a pedant.  So I can’t agree that a good lawyer is a pedant.  Far from it.

To pay attention to detail, does not a pedant make.  Pedantry is to lose sight of the importance of a point of detail.  This can happen when a lawyer doesn’t really understand why a precedent is worded in the way it is, and feels safer therefore in defending it against amendment.  But the more experienced a lawyer is, the less likely they are to let imprecision slip through in a clause having serious implications, and will understand when a point is trivial and can be conceded during negotiations.

For example, with “best endeavours” it will depend on what the other party is to achieve, as to whether it is worth arguing whether the contract should impose an obligation on them to use their ‘best’ endeavours or whether ‘reasonable’ endeavours would be adequate.

Any lawyer may start off by trying to get the best deal for their client, and so would propose ‘best’ rather than ‘reasonable’ as a starting point.  But whether it’s then worth arguing the toss is another matter.  As long as the client appreciates that ‘best’ requires more effort than ‘reasonable’, it’s up to the client to decide what’s worth insisting on with the other side.  To argue the point simply because you know that ‘best’ is better than ‘reasonable’ when the client doesn’t think it’s important would indeed be unnecessary pedantry – unless you are doing so on purpose as part of an overall negotiation tactic, to have concessions to trade later.

Legal Bizzle then gives the following clauses as an example of how difference of wording matters:

The supplier shall not in any event be liable for any indirect, special or consequential loss, howsoever arising (including but not limited to loss of anticipated profits)

The supplier shall not in any event be liable for any loss of anticipated profits or for any indirect, special or consequential loss, howsoever arising

Whether to exclude liability ONLY for anticipated profits or for all indirect losses, of which anticipated profits is one small example is clearly not just a formal stickler type of objection.  Most clients would understand that if they are not insured for certain liabilities their business would suffer, and will not regard discussions over such clauses as pedantic.  It’s the very essence of what they use lawyers for – to look after their interests.

However, often contracts include many quite tedious procedural details which don’t really need to be in the agreement at all.  For example, for many SME web development projects the standard web development precedents are overkill in my view.  They run to 15 pages, and among other things, spell out in excruciating detail how acceptance testing should be carried out and notifications of errors sent, and how these will be remedied/retested etc.  Whole pages of standard web development contracts can be cut out and a much briefer document created that just focuses on important risks and essential commercial issues.  Most clients prefer briefer contracts, although longer contracts have their place – usually in larger projects.

Perhaps if as a profession us lawyers could see the wood from the trees more, and focused on creating shorter, clearer precedents that addressed the real risks of transactions, clients would better understand how we add value.  But as long as we continue to have epic contracts that seek to address every single risk, regardless of the amounts at stake, or the commercial realities, we are at risk of seeming to be pedants arguing over unimportant trivia.

For me good lawyering is about being commercial and business like first and foremost. Pedantry has no place.

It is harder for in house lawyers as they may not be able to simply advise their client and ask them to indicate how to  proceed.   Say the issue is, for example, whether to insist on ‘best’ rather than ‘reasonable’ in house lawyers themselves will have to weigh whether it’s worth insisting on this during negotiations as their client is the company, and a company has many stakeholders whose interests need to be borne in mind.

When the immediate  ‘instructing client’ is the sales staff who may regard the lawyer as an obstacle to a signed deal it can be extremely challenging. The sales staff are likely to be cavalier about contract wording, so the lawyer will be operating in difficult conditions.  Maybe Legal Bizzle has to be proud to be a ‘pedant’ because it can feel like pedantry operating in such a scenario.

Search Engine Agreements

Search Engine Optimisation (SEO) in the broadest sense of the word, is an important topic for businesses to understand as it is how you enhance your online presence.

Understanding how to obtain the best results from your SEO consultant involves using an effective contract that is written in language readily understandable by both parties.

Looking around on the web, I came across a number of comments and misconceptions about SEO contracts. Many people seem to think an SEO contract is optional, and that unless you sign a piece of paper you do not have a contract.

Basic contract explanation

So it is important to appreciate that when you ask someone to perform a service for you, such as to do keyword research or to optimise your website, a contract comes into existence as soon as an offer is made for an estimated or set price which is clearly accepted.

For example, if you are engaging a web designer, it is enough that the designer knows broadly what you want. For example, this might be based on your having said you want a really nice looking website, and picked a few sites you liked the look of, received a quote, which you clearly accepted. None of that needs to be in writing. You will be bound in contract whether you realise it or not. If one party denies that a contract was formed the law has ways and means of establishing the truth, by looking at certain background facts to work out which of the two parties to believe.

A contract is formed much sooner than is appreciated

Provided it is clear who the parties to the contract are, what the contract relates to, and how much will be paid, then a contract exists as soon as an offer is deemed accepted in the eyes of the law. No formality is needed.

Therefore, you may carry on your discussions thinking you are still negotiating terms when in fact it will be too late to make your further requirements form part of the agreement. Once the contract has already been formed you may discuss details, but that is different from adding new stipulations, such as strict time limits for performance.

Changing your mind

Say it is agreed that the other party will build a website in return for an agreed fee of £5,000, but many of the details (such as whether it should come already optimised for the search engines) have not yet been discussed. If your agreement was based on your having a beautiful static site designed for you, and then later you changed your mind and decided that actually what you wanted was a well optimised site on a content management platform, if the designer could not deliver your changed requirement, and you wanted to engage someone else, you would be in breach of contract. If the designer wanted to, they could ask you to pay damages for cancelling the contract.

Now the fact that in practice most disputes are resolved between the parties because people tend to be reasonable and manage to sort out their disputes without the need to involve lawyers or the courts is no reason to assume that contracts should therefore be ignored. Similarly, the fact that the discussions were oral and nothing was committed to paper does not mean you cannot be challenged about breaking your promises. It would just be rather more messy, and expensive to sort out disputes based on a purely oral contract.

Importance of contracts

Contracts serve many useful functions. Often with search engine optimisation, buyers have a rose tinted view of what they will receive when they engage an SEO consultant. The SEO may want the work, so has less incentive to enlighten the buyer about the reality of what can be achieved within their budget. It is not for no reason that the law cautions ‘Buyer Beware’. It really is more important for buyers to look out for themselves and check that what they are buying is what they think they will get.

But because buyers of SEO or other internet related services often lack the necessary understanding of the service, it is difficult for them to take control.

That is why we have developed our Contract in Context System for helping buyers, lawyers and SEOs to get the know how they need about SEO and also about contracts.  By implementing an SEO strategy for their business, and using a suggested contract template when engaging SEO consultants, small business owners can take control and put in place an effective, plain English, short contract to ensure a successful outcome.  SEOs will learn a lot from the System, even though they already have the SEO know how that is included as part of the System.

Find out more by registering for our free teleseminar “Top Tips to Take Control of your Internet Marketing” on 26 Jan (even if you can’t attend, by registering we will send you details of it).