The pen is mightier than the sword rings true. When you sign iron-clad agreements, it is honestly going to take war to break through them. I have been receiving a lot of calls lately particularly about investment deals gone bad. Always invest in yourself first by investing in an attorney. Don’t just hand over your treasure and sign on the dotted line.
When it comes to investment opportunities some great salesmen can get you to “buy in” and promise a mountainous return. But, those oral representations or promises do not make it into the contract. Actually, the language you sign off on will end up saying something like this, [you can skip to the next paragraph just like you are liable to skip over it in the contract] “Entire Agreement: This Agreement constitutes the entire agreement with respect to the Parties and may not be changed, altered or modified except in writing by a subsequent instrument executed by the Parties. Further, the Parties acknowledge that no other representation, inducement, promises or agreements, orally or otherwise, were made by any Party, or anyone acting on behalf of any Party, unless such representation, inducement, promises or agreements are embodied in this Agreement.”
If your eyes glazed over, just think of how many other provisions demanded more moments of your attention. This one will glaringly continue to stare you in the face when you are told that the income, projections, ROI or term sheets, or promised profit are all but a dream and your money is gone.
In another camp there is a group of more relaxed villains who are much easier to fight. These are those who compiled contracts themselves.
The trend of the tech-savvy, overly trusting person, that believes that AI can draft a contract for them are now starting to fall one by one. While it may be true AI is a great assistant for drafting if you are using LexisNexis Protégé, only attorneys have access to that. Attorney AI pulls from legal databases, treatises, and case law. There is no substitute for a lawyer who has seen, talked to, and studied all angles of how opponents fight, who can anticipate what could go wrong in a joint venture and can draft contract language top help avoid liability and suit. But without a doubt your odds of surviving are much better if you have signed a contract where the other party did not hire an attorney either.
Parting advice for the pirates in search of riches:
- Be proactive to protect yourself and your treasures; it will save you from being reactive only hiring an attorney once you are in a compromised position. Yes, us attorneys are crafty and can draw out good facts and create legal arguments to help, or negotiate settlements, but we are not magicians. And an iron clad binding contract usually cannot be broken without actual magic.
- At the very least, know you can remove or cross out unfavorable terms and add language in contracts if you insist on a gamble and do not hire an attorney. There are few contract of adhesion, for instance your contract with your cell phone provider AT&T, where those terms are staying. But if you’re entering into a contract with a person or business, know that document doesn’t have to be signed “AS IS”. Too often people travel blindly to this on treacherous sea without throwing the garbage overboard and aiding their defense, pen in hand.
Ashley J. Likens, Associate Attorney
Brown & Kimpton, P.A.