You’ve probably already heard about GDPR (General Data Protection Regulation), but do you know how it affects your business?

This comprehensive set of regulations protects the data of individuals living in the European Union and applies to any business that might hold that data – even ones outside the EU. If you store or use personal data relating to individuals in the EU this legislation applies to you.

GDPR shares many features with the Australian Privacy Act (1988), but it goes further, and it would be a mistake to assume compliance without reviewing and checking to see if you need to take additional steps.

This legislation covers any data you hold that relates to an identifiable person (from the EU). This includes personal data such as name, address, email address, and location data. GDPR also includes additional rules for sensitive data, which includes race, religious beliefs, health, and sexual orientation.

If GDPR does relate to you it is important you act now: GDPR came into effect in May 2018, and there are potentially hefty fines for businesses who aren’t compliant.

How Do I Know If GDPR Affects My Business?

You may need to comply if:

• You target EU customers online – For example, you might sell in Euros, or provide alternative European language options such as French or German on your website.
• You monitor EU citizens online – For example, you track user behaviour online in such a way that you can identify them from the information you hold, or you target your advertising at certain individuals.
• Your customers are EU businesses – Not only do these businesses have to meet GDPR requirements, but they may also be liable if businesses they work with fail to comply. Setting your business up for GDPR may be important for current or future contracts for your business.

How Does GDPR Affect My Business?

Under GDPR, you must have a lawful reason for holding an individual’s data. GDPR identifies six legal reasons for holding or using this information:

• Consent – the individual has given you consent to you their data.
• Contract – it is necessary to hold or use the data to fulfill a contract with that individual.
• Legal Obligation – you are legally obliged to hold the data.
• Protection – holding the data is necessary to protect lives.
• Public Interest – it is in the public interest to hold or use the data.
• Legitimate Interest – it is necessary for the legitimate interests of your business.

Even if you do have a legal reason to hold someone’s data, you must still only use it for the specific purpose for which it is stored. You shouldn’t keep it longer than you need, and you must take steps to keep it safe and up-to-date.

The user’s whose data you hold also have rights, which may affect your business. They have a right to be informed you hold their data, a right to access the data you hold on them, and in some cases can insist you erase that data.

There’s a lot more to it than just that, of course – these are only the basics!

Your Next Steps

Your first and most important step is to establish if you need to comply with GDPR. If you aren’t sure, consult a professional. If you do need to meet GDPR’s requirements, you may have to make several changes. You may need to:

• Audit the data you hold, including deleting any information you don’t need (always a good idea).
• Review how you collect and use data to ensure compliance.
• Update your privacy policy and terms and conditions for your website or app to reflect any changes in your processes.
• Check that any third-parties you deal with are compliant; you may need to update your contracts with them.

Need to learn more about how GDPR will affect your business? Contact The Contract Company today, and we’ll get in touch with a fixed price quote.

As your business expands, you’ll find yourself dealing with more and more contracts: employment contracts, NDAs, non-competes; not to mention agreements with suppliers, clients, and vendors. Negotiating and preparing these documents effectively without specialist legal advice is inadvisable and puts your business at a significant disadvantage.

These legally-binding contracts should protect and benefit your business, but without the right advice they may do the opposite. A contract lawyer ensures that your contracts don’t just look good on paper but are also effective should they need to be enforced.

Your choice isn’t if you should hire a contract lawyer, but which one you should choose. Let’s delve deeper:

3 Points To Consider When Hiring a Contract Lawyer

1. Contractor vs. In-House

Businesses with a high volume of contracts must choose between hiring an in-house lawyer (or team) and partnering up with another business. In most cases, engaging with a specialist contract company is going to be more cost-efficient than hiring staff. This will always be the case for smaller businesses.

A specialist partner will scale the service they offer to meet your demand, so you only pay for what you use. This can be achieved either through an hourly rate (good) or fixed prices for specific projects (better). A contract company may also have access to a wider range of lawyers with different specialties, which means you receive a better service.

An in-house team does make sense when you are dealing with an incredibly-specialised area of contract law and want to train up and retain your specialists, but in most cases, you’ll be better off partnering with a team like The Contract Company.

2. Referrals and Reviews

Online reviews offer a great indicator of the value and expertise of the company or lawyer you will work with. Check the testimonials on their website and double-check for negative reviews on Google and Facebook.

The only thing that is better than online reviews are personal referrals. Check with others in your industry to find out their experience with other lawyers and ask for recommendations. If you can’t get a recommendation from someone, ask your prospective lawyer to provide a reference that you can follow-up on.

3. The Value of Specialist Experience

Contract law is a specialist area, but the rabbit hole goes a lot deeper than that! A contract lawyer with specialist experience in your industry or in the type of contract you require is going to be a better hire for your business than a generalist.

For example, we’ve drafted more than 1.6 million commercial contracts since we started The Contract Company. This means we’ve got the experience to add value in most situations, but we’ve also have built up a reputation in several specialist areas, including:

• Commonwealth Contracts – We have experience working with contracts both for and against the Commonwealth of Australia, including the Department of Finance, the Department of Defense, the Department of Home Affairs, and several large private sector suppliers.
• IT Projects – We’ve been engaged in IT projects worth hundreds of millions of dollars, many of which involved the Commonwealth and their suppliers.
• Distressed Contracts – Contracts that are either not fit for purpose or that one party is no longer honouring. We specialize in determining the reason for the problem and offering a way to resolve the issue.

Do you need a contract specialist? Contact The Contract Company today, and we’ll get in touch with a fixed price quote.

A confidentiality agreement, also known as a non-disclosure agreement (NDA), is a legal document that protects your confidential business information. It can be used in any situation where your business shares information with another business, an employee, a contractor, or another party, and wants to ensure that information remains private.

Confidentiality agreements can be either one-way or two-way and should include all the information necessary to protect your data and to enforce that protection. At its most basic, an agreement will cover:

• The exact information covered by the agreement (and what is exempt).
• Exactly how the second party can and can’t use that information.
• Precautions the business or person must put in place to protect the data.
• What happens to the information after the agreement ends.

Unfortunately, many businesses fail to protect themselves by either not having an agreement in place, or writing one that appears to protect them, but is either wrong or contains mistakes which mean it is not enforceable.

Mistakes and problems are common, especially when businesses reuse old agreements by changing a few details for a new project. A lack of understanding of how the new situation requires changes in the agreement can lead to costly errors.

6 Common Non-Disclosure Contract Mistakes

Some of the most common mistakes we see include:

1. Sending Information Without the Protection of a Confidentiality Agreement

The most obvious mistake businesses make is to not have an agreement, but it’s not unusual to see businesses that have created an agreement, only for it to remain incomplete and unsigned, or signed incorrectly.

Businesses must also ensure their employees don’t send confidential information before the signed contract has been received; this is tempting when under time-pressure but leaves company data unprotected.

2. Not Being Specific Enough

The objective of an NDA is not just to protect your data, but also to give your business an opportunity to receive compensation if the other party breaks the agreement. But when businesses use an agreement that is too broad, it can be very hard to get this compensation

The first issue with a broad agreement is that if it is not specific enough it may be deemed unreasonable, and a court may choose not to enforce it. The second issue is that a very broad agreement will cost more to enforce since it covers so much more ground. A tight agreement with carefully-considered bounds is far more effective.

3. Failing to Account For Third-Party Use of Information

It is highly likely that the business or contractor you are dealing with may need legitimately share some information covered by the agreement to carry out the planned activities.

The agreement should specify how they can share the information, the procedure for doing so, and what steps the sharing party should take to ensure the third-party handles the data appropriately. It should also specify which party is responsible when a third-party with legitimate access to the information causes a leak.

Without the correct guidelines, the other party will need to request to disclose data outside the agreement every time they deal with a third-party. This is rarely necessary, will slow down the project, and will cause frustration for both parties.

4. Not Specifying How Disputes Are Handled

The confidentiality agreement should outline exactly how you handle disputes. In some cases, mediation is more appropriate than litigation, but unless this is specified, you may have no other option than an expensive court case for what may be a minor breach of the agreement.

It is also important that the agreement covers under what law it is being written, especially if you are dealing with parties based outside of Australia.

5. Being Unagreeable

Writing something the other party clearly can’t agree to will reduce trust, and the back-and-forth necessary to correct the mistakes will delay your project. For example, a well-written agreement will include proper exclusions for areas it does not cover, such as information that is already publicly known and information developed independently.

6. Losing The Signed Agreement

Finally, that agreement is worth nothing if the one signed copy gets lost. Businesses should always back up their agreements with both physical and digital copies to reduce the risk of this happening.

Do you need a confidentiality agreement written or an existing document checked by an expert? The Contract Company specialize in fast turnarounds for businesses. Contact our team today, and we’ll get in touch with a fixed price quote.

Case Study - Nurse Contract - Botox Injector Nurse

Many nurses, after doing the hard yards in hospital, often look for a career change. Some nurses consider using their considerable nursing skills in the cosmetic industry.  

Here at the Contract Company we were recently asked to review two nurse contracts for nurses that we're going to provide services to a ‘cosmetic’ company.  In essence our clients were going to be trained to perform minor treatments (such as but not limited to injecting Botox)  and our clients were then going to work for this cosmetic company for a period of time. A career change to becoming a cosmetic nurse. Good work... I could use their services myself! 🙂

The Contract Issues

All contracts have what is known as an inherent drafting bias. This means that the contracts are drafted to favour the party that created the contracts. It is fair to say that the contracts we reviewed had this ‘drafting bias’. Actually that’s like saying Beethoven composed ‘a bit of’ music. Are you getting the picture?

Anyway, our clients had two main issues with the contract that they had each been asked to sign:

1. how the commission was able to be calculated; and
2. the imposition of an early termination fee.

Commission

It is not uncommon in contractor type agreements for the contractor to be paid on a commission basis.  It is worth noting that where the commission is calculated on the difference between the wholesale and retail price of products,  you should be fully aware of what the wholesale price of the products are (before you sign the contract) so that you are able to work out how much commission you think you will be able to make.

On that basis,  make sure you obtain the product price list before you sign the contract.

Also,  you should carefully examine the contract to determine if the other side has the ability to increase or decrease,  at will,  the wholesale price of the products or increase or decrease the retail price. As I am sure you will understand, any change in the wholesale price of the products, and any change in the retail price of the products could have a direct impact on the commission amount receivable by you.

Termination Fee

The next issue that needed to be looked at was the potential payment of a substantial termination fee where either client wanted out of the contract before the contract has expired. The contracts were for an initial term of 2 years.

It is not uncommon in commercial contracts for one party to recover their reasonable out of pocket expenses and/or legitimate business losses that they have incurred under a contract, where these losses are directly attributable to the other party terminating the contract.

So in other words if my actions in ending the contract early cause you loss then it is not unreasonable for you to be compensated for that loss, because had I not terminated the contract early then you would not have incurred those expenses/losses.

Termination Fee was Completely Disproportionate

However,  having reviewed thousands of contracts the termination fee that was to be imposed on our clients in these contracts seemed disproportionate to any loss that the relevant cosmetic company could suffer due to the early termination by our clients. Waaaay out of proportion. Think 1 person turns up to knife fight with a knife, the other brings a bazooka.

The Lesson

The lesson for you here is that you should very carefully consider entering into any contract where a substantial termination fee is payable,  especially where the loss that could be suffered by the other side because you terminate the contract early,  would appear on its face to be negligible.

Don't be pushed around or forced into signing any contract before talking to the Contract Company.  Call us on 1800 355 455 today to get your contract sorted!

Case Study - IT Master Services Agreement

Here at the Contract Company we were recently asked to advise on a Master Services Agreement with a large IT company.

In this case under the Master Services Agreement our client was supplying  goods and/or services to the large IT company (and their affiliates).

Key Issue

The key issue for consideration in this contract was the interaction between the Master Services Agreement and a distribution agreement that our client had previously signed.

The immediate issue under consideration was whether our client  was able to grant rights under the Master Services Agreement to the large IT company, or would this violate the pre-existing distribution agreement.

Our client is the exclusive distributor of an overseas product in Australia and as such had been granted certain rights under a distribution agreement. If our client breached the distribution agreement then they stood to lose the rights to supply and distribute certain products within  Australia.   Something our client was very keen to avoid.

Ownership of New IP

One of the key issues for consideration in the Master Services Agreement was the ownership of new intellectual property.

As you will appreciate the Master Services Agreements have been drafted by a top tier law firm and as such suppliers to the large IT company have to hand over everything including their first born child. Plus why say it in 10 pages when you can say it in 50. No point cutting to the chase when you can waffle on a bit. Bit like this article….

Under the standard terms of the Master Services Agreement the large IT company owns all newly created IP and any supplier to the large IT company provides a royalty free perpetual licence to the large IT company to the extent that any of the supplier’s IP forms part of the services being provided. This ensures that there will be no IP issues for the large IT company because they will own all newly created IP but also they have a right to use any of these suppliers pre-existing IP that is required for the large IT company to make use of the newly created IP. In short, an IP stitch up! But standard sort of fare in large IT contracts.

Outcome

In our case we were able to successfully amend the contract with the large IT company on the basis that the rights  the large IT company required under the contract our client was simply not able to grant,  as doing so would have meant a breach of its pre-existing distribution agreement. Had we breached our distribution agreement this could have had the effect of losing the exclusive distribution rights and potentially putting our client out of business.

Amending the contract with the large IT company in this manner was relatively straightforward because we had an effective ‘ sales pitch’  to make to the large IT company as to why we required these changes.  As you will appreciate in many contract negotiations looking to amend or change the contract and explaining why you want those changes is not so straightforward.

Every contract is different so if you are thinking of entering into a contract with the a large IT company please get in touch as we can assist.

We hope that’s clear. Still in need of in depth explanations? Call us on 1800 355 455 today to schedule a consultation.

Without Prejudice

If you have had anything to do with lawyers I bet you've heard the term 'without prejudice'. It's one of those terms you think you know the meaning of but 'what does without prejudice mean?'

What Does ‘Without Prejudice’ Mean?

The term simply means that whatever you are saying in your letter or email cannot be used against you in court/legal proceedings.  It is a privilege that is enshrined in legislation in Australia (the Evidence Act).

Parties to a dispute are allowed to settle at any stage of proceedings, i.e. before the case goes to court or even after it has been going in court for some time.

So where one party makes an offer, or offers, to the other party, but they don’t want those offers to be later used against them in any legal proceedings, then the party will label those documents, letters, emails, (or even state in a phone call) that the correspondence is ‘without prejudice’ and therefore that correspondence is cloaked with privileges.

If negotiations or out of court settlements fail, those communications and documents cannot be used against one party by the other party.

The term covers all communication channels, written, oral, audio, video, and even texting.. if that was how you were going to make an offer to settle a case!

Why do people use 'Without Prejudice' on letters or emails?

As indicated above lawyers will insert ‘Without Prejudice’ on communications to protect the communications and negotiations between them and a party with which they have a pending dispute.

Given this protection, a party making an offer is more likely to be open (well ‘more open’ than they otherwise may be) in their communications with the other party and they will be free to make suggestions, concessions or compromises without having to worry about it coming back to bite them in the future if they end up in court (or if the matter is already in court then they don’t need to worry about the offers being used against them).

When does 'Without Prejudice' apply?

Marking correspondence with ‘Without Prejudice’ will only be valid (as determined by a court) where parties are in the process of genuine settlement negotiations and are attempting to settle legal proceedings/dispute resolution process.

I have forgotten to state 'Without Prejudice' on my letters... is that a problem?

If you have forgotten to insert ‘Without Prejudice’ on your communications, don’t worry as the protection will most likely still apply (the Court will make a determination about whether the privilege still applies based on whether the correspondence is trying to settle a dispute).

Should I use ‘Without Prejudice’ on my letters or emails?

If there is a genuine (i.e. a real, not artificial) dispute between you and another party, and the letter or email you are going to send is to try and settle that dispute (by making an offer or a compromise) then ‘Yes’ label it Without Prejudice (otherwise save yourself the extra typing).

You DO NOT need to use ‘Without Prejudice’ in the following circumstances:

• general communications between parties not relating to a dispute – this includes negotiations
• a letter concluding a transaction
• a letter agreeing to an offer
• general commercial communications – including commercial negotiations
• a letter of demand for amount owed. However if the amount owed is in dispute, it can be marked 'without prejudice'.

We hope that’s clear. Still in need of in depth explanations? Call us on 1800 355 455 today to schedule a consultation.

What is a Force Majeure clause?

What does Force Majeure mean?

It is a French phrase that means ‘superior force’.

It is clause that is used in contracts to make it clear that if a random event occurs (i.e. an event brought about by a ‘superior force’ – such as an act of God, or an act of nature) then the parties to that contract do not have to perform under the contract until the random event is over.

What is the purpose of a Force Majeure clause?

The purpose of such clauses is to allow both parties out of a contract when an event occurs that neither party had thought about or contemplated but which has the effect of making it impossible to perform under the contract.

Most well drafted Force Majeure clauses refer to acts of God, acts of nature, strikes, war, natural disasters and now (unfortunately) acts of terrorism (Trigger Events).

This means that if one of those Trigger Events was to occur then both parties to the relevant contract no longer have to perform under the contract until the relevant Trigger Event has finished.

Why would I want a Force Majeure clause in a contract?

This is an easy one. If there is no Force Majeure clause in a contract and a natural disaster occurs then you still have to perform under the contract but the natural disaster might make that impossible. Let’s use an example.

Say a flood badly damages your shoe factory, such that you can now no longer make your shoes. If you have supply agreements with customers promising them that you will supply so many shoes per month you are still obligated to supply those shoes, so you would be in breach of that contract by not being able to fulfil your contractual obligations (of providing the required number of shoes every month).

The other party (i.e. the recipient of your shoes) could then sue you for breach of contract and look to claim compensation from you.

If you had a Force Majeure clause in the contract you would be ‘let off’ performing under the contract until the event had subsided, i.e. until you had a chance to repair your factory.

Should I have a Force Majeure clause in a contract?

If your contract requires performance over a period of time (such as production and supply of goods, construction of a building, or design and installation of a new IT system) or is high value, then you should absolutely have a Force Majeure clause in your contract.

What does a Force Majeure Clause look like?

Here is an example of a Force Majeure clause:

If either or both parties are prevented, hindered or delayed from performing their obligations under this Agreement by an Event of Force Majeure, then as long as that situation continues, that party will be excused from performance of its obligations under this Agreement to the extent it is so prevented, hindered or delayed by the Event of Force Majeure.

The party affected by an Event of Force Majeure will immediately give the other party a notice of its occurrence and its effect or likely effect, and use all reasonable endeavours to minimise the effect of the Event of Force Majeure and to bring it to an end.

 Event of Force Majeure means the occurrence of an event or circumstances beyond the reasonable control of a party affected by it including (without limitation):

1. a war (declared or undeclared), insurrection, civil commotion, military action, or an act of sabotage;
2. a strike, lockout or industrial action, dispute or disturbance of any kind;
3. an act of terrorism;
4. an act of a government or an authority;
5. an act of God or an act of nature; or
6. a storm, tempest, fire, flood, earthquake or other natural calamity.

Need a contract drafted or reviewed? Give us a call 1800 355 455

How is a contract varied or changed?

Ok, so you have signed a contract with another party and you are performing under the contract.

But this is where you need to be very careful, because a contract can be varied during the performance of a contract.

How can a contract be varied?

A signed contract can be varied or changed in one of three ways, either through:

1. a written variation;
2. a verbal variation; or
3. variation by conduct.

Written Variations to a Contract

Generally most contracts set out the process for varying a contract. In most contracts there is clause that says something like ‘this contract can only be varied in writing and that variation must be signed by all parties to the contract’. This is a simple way to vary a contract and the parties will put in a place a Deed of Variation (i.e. a written document) in order to give effect to the change.

Verbal Variations to a Contract

In a similar manner, i.e. by mutual agreement between the parties, a contract can be varied verbally, i.e. ‘I know the contract says to do ‘X’ and ‘Y’, but forget that, just do ‘Z’. We don’t recommend varying or changing a contract in this way, as there is no written record of the variation and so it is up for debate as to how exactly the contract was varied and when that variation came into effect.

Example of Varying a Contract Verbally

A contract requires a contractor to dig holes to 2 metres deep so as to plant 20,000 new trees. The site manager comes along and says not to worry about that, tree holes only need to be dug to a depth of 1 metre. This verbal variation is not recorded. 6 months to a year later most of the trees have died and the site owner sues. Large costs are incurred trying to prove that the contract was varied such that holes to a depth of 1 metre were all that were contractually required.

Varying a Contract by Conduct

The area that arises most often with long term contracts is the following happens:

1. the contract is negotiated and signed

2. the contract is then ‘securely stored’ (i.e. placed in someone’s bottom drawer)

3. the parties start performing under the contract

4. the parties, whilst performing under the contract, move away from, or perform their obligations under the contract in a way that is different to what was set out in the written contract

5. A dispute arises between the parties - therefore bottom drawers all through the company are searched – pristine dust covered contract found

6. Parties look to enforce their rights under the contract based on what is stated in the contract

7. Court finds that the contract between the parties that was initially on paper has been varied by the conduct of the parties, such that the new conduct or way of operating under the contract is the new agreed method of performing under the contract. Thus newly found pristine but dust covered contract is essentially worthless.

True story.

The perils of varying a Contract by Conduct

Once a contract has been varied by conduct (because the ‘new’ conduct was agreed to by the other party), a strong argument can subsequently be raised that the written terms of the contract (that is now sitting safe in a bottom drawer, albeit dust covered) no longer apply and the parties are now proceeding under a new set of rights and obligations that may not necessarily have been written down.

Think it doesn’t happen? Think again. It is a very common scenario.

Here is one small example:

1. A written contract has payment terms of 14 days, i.e. an invoice must be paid 14 days after it is issued.

2. 6 months into the contract term, the recipient of the services starts paying 30 days after the invoice date.

3. Provider of the service does not object to this and in fact appears to accept the arrangement in email correspondence.

4. Invoices are then paid, nearly always, 30 days after they were issued.

5. 2 years into the contract the provider of service has cash flow issues and has enough of the 30 day payment terms and tries to sue Recipient saying that ‘ you are contractually obligated to pay on 14 days’.

6. Court says – ‘nice try’ – you the Provider, agreed to the course of conduct over a period of months and so the contract was varied by agreement such that the payment terms are now ’30 days after invoice date.’

Document Contract Variations

How do you deal with such variations? You should document and record any such variations immediately and, if necessary, formerly make variations to the strict terms of the contract in writing so that the parties understand what the new obligations are.

By understanding that a contract can be varied by conduct, and not just adopting a business-as-usual policy, you have a much better chance of avoiding lengthy and protracted disputes in the future.

If you need a lawyer for a contract dispute give us a call - 1800 355 455. We can help.

What does a Contract Lawyer do?

Have you ever wondered what a contract lawyer does?

A Contract Lawyer drafts and reviews contracts

In a nutshell, contract lawyers, draft contracts for their clients,  review contracts for their clients and provide advice about contracts. We have set out on our website some information on the importance of having an experienced lawyer draft your contract and how we go about reviewing contracts. Have a read of those to get a better appreciation of what is involved when drafting or reviewing a contract.

Contract lawyers also negotiate contracts and often (but not always) deal with contractual disputes. Sometimes contract lawyers don’t deal with disputes because they refer the dispute on to Alternative Dispute Resolution lawyers, or lawyers that specialise in Litigation (i.e. going to court to resolve a commercial dispute).

Those are the basics of what a contract lawyer does.

So what? How should a contract lawyer provide their service?

Ok so you understand that we draft and review contracts and provide advice about contracts. But is that end of the story? We don’t think so. Why?

Well here’s a quick question for you, do clients really care about what the law says, or what the correct interpretation of a contract is?

Well in part they do, but to us, and more fundamentally, clients care about the legal answer or legal expertise as it relates to their contract situation. In other words the legal advice has to be tailored to be of assistance to the client.

What should a contract lawyer provide?

This to us is where many lawyers let themselves down, they could tailor their advice and provide clear paths forward (based on what the relevant law is, what the lawyer knows about the client, the client’s business and industry and based on what the client is looking to achieve). However so few lawyers do this. Some will have an each way bet. Here’s a true story for you.

Whilst working as a lawyer for a company we engaged a large Australian law firm to provide an advice to us to answer a legal question. We were looking to them to say based on what we know of the law and your business the answer is ‘x, y and z’.

What did we get? 12 pages of advice (all good stuff… if you are into that sort of thing… dissections of case law and dissenting judgments etc, all well researched, well written and free from typos) but there were 3 pages that argued for a point of view and then at the end of those 3 pages was 1 paragraph that basically said ‘irrespective of the above, a judge could find the opposite’.

This basically meant that the law firm was having an each way bet by saying, even though we have given you 3 PAGES of advice one way, a judge may find the opposite.

Being the patient sort of bloke I am, after I pulled out the last of my remaining hair, I calmed down and rang the partner and said something along the lines of (much more diplomatically than this, of course) ‘this advice is really an each way bet, use your legal expertise, get off the fence and make a call. That’s what we are paying you for’. Needless to say, version 2 of the advice was a lot better.

Get off the Fence

So if you are a lawyer, man up, and get off the fence. That’s what clients want from you. A firm view. Sure we all know that the law can be vague and for any matter to get to the High Court there have been competing views and judgments and dissenting judgments flying around like plates at a Greek wedding, but to us this is what lawyers are getting paid for. To use their legal skills and their experience to make a call and to get off the fence!

Could you be wrong? Sure. Because as we have said, for any matter to get to the High Court there have to be a number of judges that do not agree with a point of view. But as lawyers that’s what we are getting paid for.

So let’s have a look at how lawyers give advice about contracts.

Some Lawyers on give Advice or Options 

Some lawyers just give legal advice, i.e. ‘the contract says blah, blah and blah, so these are you contractual obligations, a, b and c’. ‘By the way good luck working out what you want to do.’ For a client this is as useful as a wheel on a walking stick, or as useful as a grass skirt in a bushfire, or as useful as having an ash tray on a motor bike. You getting the picture?

A step up in the evolutionary ladder are lawyers that provide legal advice and then give their clients suggested ways forward such as list of options and nothing more, i.e. you could do 1, 2 or 3. This to us is more helpful because at least the lawyer is suggesting a way to deal with or resolve the issue and means that the lawyer has used some critical thinking based on their knowledge of the law, their knowledge of the client’s business/circumstances and their knowledge of what the client is trying to achieve. Kudos. Go crack a cold one.

But ultimately I think you would still want you lawyer to take the next step and put himself in your shoes and give you a preferred option. If you go to the dentist with a tooth ache do you want the dentist to give you 3 options or do you want to turn to the dentist and say ‘if you were me and based on your skills and experience what would you do’? Exactly. Now pull that tooth and let’s get on with it.

The Holy Grail of Contract Advice

Still fewer lawyers will say ‘based on my knowledge of the law, my commercial experience, my knowledge of your business and what you are trying to achieve, this is what you should do and here are a few ways of achieving that outcome. Further this is what I have done, (or could do if you engage us) to help you get that outcome’. That right there ladies and gentlemen is the holy grail of legal advice and legal assistance.

Why? Well because in these circumstances the lawyer is basically bringing all their training and experience to bear to not only suggest a preferred route but also make that happen for you. In short taking care of your problem, reducing your stress and giving you peace of mind.

Enough said.

The world’s most expensive comma?!

A group of delivery drivers in the US state of Maine have just won an estimated $13 million, why? Because of the lack of a comma! True story.

The Oxford Comma

The Oxford comma, also known as the serial comma, is a comma placed immediately before a conjunction such as “and” or “or” in a series of three or more terms, as in: “First, second, and third.” (The Oxford comma is in red).

The Truck Drivers' Case

In the case of the truck drivers, they argued that the relevant state employment law relating to overtime was ambiguous because of a missing comma. The law says that overtime rules do not apply to:

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

1. Agricultural produce; 

2. Meat and fish products; and 

3. Perishable foods.

Three drivers brought the class-action suit against Portland-based Oakhurst Dairy in 2014, arguing that their industry was not carved out by the exemption. The question was whether the final part of the sentence, “packing for shipment or distribution of”, referred to one profession or two.

In other words did the sentence mean ‘packing for shipment’ and then the ‘distribution of’… i.e. two separate jobs. Or did the sentence mean the act of packing an item so that the item can be shipped or distributed?

The delivery drivers argued that, in combination, these words refer to the single activity of ‘packing’, whether the ‘packing’ is for ‘shipment’ or for ‘distribution’.

The drivers said that, although they do handle perishable foods, they do not engage in ‘packing’ them. As a result, the drivers argued that, as employees who fall outside Exemption F, the Maine overtime law protects them.”

The Result

It turns out the appeal courts agreed with them. The clause was interpreted to mean the single activity of ‘packing’, whether the ‘packing’ is for ‘shipment’ or for ‘distribution’, i.e. the act of packing an item so that the item could then be shipped or distributed.

“That comma would have sunk our ship,” David Webbert, a lawyer who represented the drivers, told The New York Times. In other words had there been a comma immediately before ‘or’ e.g.  'packing for shipment, or distribution of ...' they would have lost.

Sometimes legal draftsmen don't get it right, unless of course that was the draftperson's intention! We will never know, but what we do know is that one little comma has cost the employer company $13 large ones (millions)!