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    Friendlier, informal contracts
    #1
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    Not a question for a lawyer because I have a lawyer and lawyers tend to like earning work. I like my lawyer, but I want to ask this "outside" the lawyer circle.

    My experience has been that contracts on the lower end - even the midrange - tend to be somewhat useless for disputes. I don't mean to say they can't cover you in terms of deposits or liabilities to a certain extent, but the cost of defending them can be so disproportionate they are more like "fire insurance".

    But then, I am pursuing PLI insurance which is my "actual" insurance - so.... let's talk about how valuable a contract really is and how it should look in light of this.

    ////////////

    - Defending a contract, such as monies received as non-refundable, may hold up in the long run in court. But let's say $10,000 in dispute, and you spend $15,000 defending it - with a total dice roll on getting attorney's fees back, and unpredictable arbitration or jury system. And you have PLI insurance to boot. This is just a waste of time and money.

    - Air tight contracts - even if you win, the point is you're suppose to be protecting your assets - but if you have to spend just as much to defend them as you would have to give back, does it really matter?

    - Amounts - it seems contracts make the most sense when dealing with very large amounts. But what about $20k? $50k? $150k?

    - It seems that the best defense is to be a good person who is friendly, accommodating, etc. and to take all efforts to avoid legal.

    - If legal happens, PLI will cover it, and/or you will rack up a big bill no matter how good your contract is anyway

    /////////

    So, what are your thoughts on less formal, friendlier contracts?

    Such as a 3 page document, in non legal terms, but utilizing important legal concepts, laying out clearly expectations. But not laid out in such an airtight fashion that it comes across as overly formal or legalistic. Friendlier, more informal.

    It seems to me that the most important part of the agreement is not that its "bullet proof" but rather that it is clear, kind, and sets expectations very well.

    And then including some of the "boring" stuff that is necessary in a more legal sense.

    I'm starting to question the value of giving any client a super formal dense fine print contract because it can put defenses up, or rack up a bill with lawyers going back and forth to debate terms, etc. when - in the end - lets say a dispute happens. Bigger companies can "pick on you" if they want regardless, even if they know they wouldn't win, and PLI insurance can cover the trouble as is.

    What do you think - toned down the contracts that don't worry about being so uppity up, acknowledging the frivolous nature of non multi-million dollar deals, or keep that thing legalistic and bullet proof?


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    I don't know how much pages your contract is. But a contract can be very small. Do you use 'terms and conditions'? These will cover a lot of the stuf so you don't need to mention in your contract.

    In Dutch we have a saying: 'A good contract is an agreement that you sign and never need again.'

    Keep it bullet proof. If you want to be friendly you can see the contract best as an agreement between two parties. And the only time you need your (signed) contract is when things go wrong. At that moment the friendly phase is normally over.


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    Senior Member Cary Knoop's Avatar
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    If you have large projects you should get a contract made by a lawyer.

    For small contracts, while limited in monetary awards small claims will at most cost you a few $20 bills.
    No need for lawyers, the judge will weigh and decide!


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    May help to start at the end and work backwards on this one.

    The end purpose of bringing a contract into a legal venue is always the same thing: to provide evidence to a presiding authority that a valid agreement between you and another party existed, for you and them to do X/Y/Z.

    This is fundamentally true wherever you are in the world, whatever kind of legal setting you're in. The contract provides evidence of the agreement between two or more parties.

    Where it gets tricky is that every court/arbitrator/etc has their own rules about what constitutes evidence, beginning with the form the contract can take (a quick scribble or an oral contract are fine in some places, not in others), to specific ways that they will interpret various words in the contract, stuff like this: https://legal-dictionary.thefreedict...f+Construction

    And further compounding things is that some concepts are very easy and a governing body will rule predictably 99.9% of the time, others are gray area and it's almost impossible to put together any set of terms that will protect you, you're just at their mercy.

    So, fundamentally, the most important thing is always to understand what rules the decider is going to apply, and how they will apply them.

    When you know those rules, and what you want, and the likelihood, you can work backwards to draft a contract on a napkin that will give you more protection than a 100 page document. But... understanding these rules/words is not easy, hence most people paying lawyers to do it.


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    Quote Originally Posted by Cary Knoop View Post
    For small contracts, while limited in monetary awards small claims will at most cost you a few $20 bills.
    No need for lawyers, the judge will weigh and decide!
    Err, anything under $50k in Oregon is subject to mandatory arbitration. And costs more than a few $20 bills if someone decides to push it. Quite easy to rack up $5k-$10k defending nothing disputes, and arbitrators are notorious for wanting to keep cases out of court and simply making an "arbitrary" decision. At least in Oregon, they are known all too often to simply split the baby by obscure theories of law to keep stupid cases from going to trial.

    So, I guess it depends on your definition of small but specifically quantifying figures I think is important.


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    Quote Originally Posted by Publimix View Post
    I don't know how much pages your contract is. But a contract can be very small. Do you use 'terms and conditions'? These will cover a lot of the stuf so you don't need to mention in your contract.
    I thought Terms & Conditions essentially was a contract? What is the difference you are referring to?


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    Senior Member Cary Knoop's Avatar
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    Quote Originally Posted by filmguy123 View Post
    Err, anything under $50k in Oregon is subject to mandatory arbitration. And costs more than a few $20 bills if someone decides to push it. Quite easy to rack up $5k-$10k defending nothing disputes, and arbitrators are notorious for wanting to keep cases out of court and simply making an "arbitrary" decision. At least in Oregon, they are known all too often to simply split the baby by obscure theories of law to keep stupid cases from going to trial.

    So, I guess it depends on your definition of small but specifically quantifying figures I think is important.
    I don't live or know anything about Oregon but there seems to be a small claims court procedure in Oregon as well:

    https://www.courts.oregon.gov/courts...allclaims.aspx


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    For small jobs I would often rely on a Scope of Work contract. This would lay out in broad terms what was expected from each party and when. It would say things like What I would deliver in preproduction, production and in postproduction as a series of bullet points. It would also note what was expected from the client at each stage and a schedule for each stage along with a payment breakdown for each stage. I depends on how detailed you want to make it, but I often fit this on a single sheet with room for signatures. It's pretty cut & dry stuff, and it clears up exactly what is expected from both parties without getting into "legalese" or possibly offending the client. There's no "I thought you were paying for the location" or "What do you mean I have to pay extra to make changes to the 2nd edit?" Just lay it out and then send it as a draft to the client saying, "This is what I was thinking. Please let me know if you have any questions or comments." This allows for a constructive conversation about crew or schedule without pissing off anyone, and I've never had a client who had a problem with it.
    Mitch Gross
    Cinema Product Manager
    Panasonic System Solutions Company


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    Thanks Mitch this is helpful. What would you consider a small job? $20k? $50k? At what point tips to “big job”?

    Regarding legalese are there any things you find you can’t do without?

    I like things in there regarding no warranty on the delivered footage and edits, not reasonable for data after delivery, who owns the source footage and how the licensing works, what happens in event of client delays, etc. but maybe that’s not all necessary?

    Or what if other standard boiler plate stuff - the contract is enforced locally, can’t be construed against me on counts of drafting, etc?

    Perhaps that’s all stuff unneeded for “small jobs” as it’s nkt worth it - but there is that “what’s a small job?” Tipping point?


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    Quote Originally Posted by filmguy123 View Post
    I like things in there regarding no warranty on the delivered footage and edits, not reasonable for data after delivery, who owns the source footage and how the licensing works, what happens in event of client delays, etc. but maybe that’s not all necessary?

    Or what if other standard boiler plate stuff
    The idea of "standard boiler plate stuff" being universal is a little misleading. For example, some jurisdictions have implied warranties where one isn't expressly defined in the contract, so a "no warranty" clause would be useful, and taking it out could increase your exposure. Similarly some jurisdictions don't even recognize choice of venue clauses ("contract is enforced locally"), whereas others do.

    (Hopefully your plan is to show your attorney whatever you end up crowd sourcing and restrict their review to making any necessary edits to conform to local law, which is probably the most cost-effective way of getting legal work done!)


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