PUT IT IN WRITING!

• Author: Fox, J. Taylor

We've all heard people speak of days when you could do a business deal on a "handshake." When "my word is my bond" was the gold standard of contract consideration. Of course I am all for personal honesty, trust in others, and keeping promises. We need more of this in the world. But I've been practicing law long enough--and I've litigated enough business disputes--to know that, in commercial transactions, if you don't get it in writing, you've just bought a very expensive lawsuit.

To those of you who I've just offended by saying your word isn't worth much, let me say this. Business disputes don't always result from dishonesty (although that frequently happens). They commonly stem from the parties' differences in memory. What was agreed to? What were the terms? Who paid what to whom and when? What happens if someone doesn't pay? Where did we furnish our materials? What real property interest did I just buy? Did it include water? We've all reminisced with family or friends about certain shared experiences where no one can agree on the same set of facts. We were all there. But somehow we all remember it differently.

I know I may be stating the obvious. But clients tell me all the time that they didn't want to fuss with a complicated contract. They didn't want to pay an attorney to draft their agreement. They didn't have time to keep detailed records. They didn't want to hold up closing so they left a few loose ends to be tied up later. Or, "we were all friends and trusted each other, so no one saw a need to write anything down." We'd all do well to remember that contracts offer the rules when we no longer get along.

Here are some reasons why paying an attorney now to draft a good contract, or to advise you on your record keeping processes, will save you money later.

My job as a trial attorney is lOO times easier and more efficient if I have a well-worded contract to enforce, or a mine of company records to present as evidence. Without paper, your whole trial rises and falls on witness testimony. He said/she said will be what the judge or jury has to work with. Memories fade. Stories change. Testimony gets rehearsed.

And, yes, people lie under oath. In construction cases in particular, the most paper wins; and if something's not written down, it might as well have never happened. A...