October 12, 2021
The Pros, Cons, and Costs of using someone else’s legal forms.
The only folks who don’t shudder at the thought of a complex, customized legal document are lawyers (and TBH, some of us still shudder… just a bit). Legal contracts can be lengthy, convoluted, and down-right inefficient, and once you get two or more legal teams involved? Forget about it! The temptation to start with another party’s form agreement instead of reaching out to your own legal team can be all too great at times, and you may think it will save you beaucoup billables, but will it in the end? Let’s tackle the pros and cons of using “Other People’s Paper” and uncover whether the benefits outweigh the costs.
Pros of O.P.P.:
- You get to react rather than propose. If you’re a closet introvert like me (hiding behind a protective veil of smiles and ‘90s hip-hop references), there is a certain allure to letting the other party make the first move. You get to see their “nice to have” list and react based on your needs and goals. Making the first move comes with a fair amount of risk regarding relationship management, and with O.P.P., you get to decide how much you want to push back.
- They bear the initial legal cost. If an agreement is particularly complex or unique, there may be significant legal time involved on the first draft, and if you ask the other team to take a first pass at it, you might have shifted the economics in your favor. If their draft by some miracle is reasonably inoffensive and adequately protects your interests, it could be a boon!
- Let experts be experts. If you are entering into a contract with a company that sells sprockets on the regular and you have never before bought a sprocket, there are likely industry specific clauses in their standard forms that you might have overlooked. Getting the treetop view of a highly-specialized company’s agreement will give you key insight into their processes and relative risks.
Cons of O.P.P.:
- It might be bad. Really bad. There are lawyers of all shapes, backgrounds, and competencies out there, and if what they provide for you reeks, your legal team is going to have to spend just as much time cleaning up the mess as they would have spent drafting it from scratch… and in some cases, more.
- Micro-compromises = compliance nightmare. When you don’t have a standard form agreement to use across all of your clients or vendors, you run the risk of making seemingly small compromises in each agreement on a variety of issues in order to get the deal done, and the resulting compliance headache is very real. Net-30 here, Net-45 there… 1.5% interest on one, 2% interest on another… limitation of liability versus none… The possibilities and pitfalls are endless, and consistency in contracting processes minimizes your downside. If you intend to enter into more than two of the same type of legal contract, the costs of using O.P.P. are probably going to be greater than a custom contract.
- Your lawyer’s “familiar”. Your lawyer will almost always spot more issues/errors in an agreement they have drafted than in an agreement they are seeing for the first time. These days, template agreements are part of every law firm’s proprietary toolbox and improve the efficiency and accuracy of attorney work-product. Closely reviewing an unfamiliar document can often take longer than drafting from a tried-and-true template.
- Custom suits fit like a glove. A custom suit is sought after because it fits just like a glove… or a suit, or whatever. You get the picture. An agreement tailored to your particular needs is going to suit you better than any other and will make your tush look amazing (oops, that last part was for the suit).
At the end of the day, we all want the most value possible given the constraints of our budget. Sometimes that means reviewing and revising O.P.P., but more often than not, the true value in a customized contract is priceless, especially when there is more at stake than a few sprockets. This is particularly true when you intend to enter into similar agreements with other parties and get to capitalize on the legal time you’ve already spent. Adequately protecting yourself with a well-fitted contract suite can save big in the long run.
This blog was written by Hunter Business Law Associate Haley Lemon.
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