Legal Tips from a Software Professional
I am not a lawyer. This is just my personal approach to the legal quagmires of working in the software world. But it does work for me. YMMV and make your own decisions. Also, the legal field is inherently adversarial. So this post approaches it that way, too — that you are in conflict with the people who are giving you contracts. But I also have good friends who are attorneys, and they have an uncanny ability to turn that adversarial switch on and off like a light. It is just part of their work. This is often just a game to them, and maybe that is why they do this job to begin with. So play it, but treat them like people, and don’t take things personally.
- When in doubt, seek professional help — The key to success is often knowing your own limitations. This is especially true in the legal arena. If you are unsure, ask. Better to get a clear answer than make a bad guess and get burned in the future.
- Read contracts carefully — The fine print does matter. But despite being complicated, legal language is still just English. Read it slowly, and carefully. Match up all the phrases in a sentence to be sure you understand which clause is attached to which, and it will make sense. The context of how it is applied in your jurisdiction and your specific circumstances is where you might need legal advice, but don’t buy into the myth that “legalese” is a different language. If you can structure a software app, you can break down a sentence in a contract and understand it.
- Contracts are two-sided — All contracts require “consideration”. This is a basic principle of contract law. If they do not give you something, they cannot demand anything of you. Often, this means money in exchange for services or other agreements. The value of the two sides of the contract to not have to be equal, but there does have to be a give and take from both sides. If you don’t like a particular contract, but have a business need to make it happen anyway, this is the area in which to focus your negotiations — ask for more consideration. And if someone asks you to sign a contract where they do not give you anything… just say no. Even though it wouldn’t be a valid contract anyway, see the next point…
- Don’t follow the advice that “It is OK to sign a contract if it won’t hold up in court.” — I hear this more often than I would expect. There is this idea that if part of a contact won’t hold up in court, than you can just ignore it. This isn’t good thinking. First of all, you would have to fight it in court to get to that conclusion, which is both time-consuming and expensive. So if you believe that part of a contract is not enforceable, just ask it to be removed. Odds are, the lawyers will remove it if it really is that flimsy. And if they do not, well… you have something you need to negotiate with them. Because litigation rarely ends up getting resolved at trial anymore anyway — it gets settled. So your potential future conflict is being negotiated right now. Settle the differences right now, not years down the road when this contract can be wielded against you, with legal fees and courts attached. Argue your points before signing.
- All contracts are negotiable — People say they won’t negotiate, but it is all about power. They want something from you, or you would not be in the position of looking at a contract in the first place. The question is how much they need you vs. how much you need them. If you are signing a contract for an entry level job with 100 other applicants, sure, maybe you have no room for negotiation. But if you are an expert in your field who get thrown a new contract after working at a company for years, asking to change your working relationship, and told sign it or lose your job, trust me — they’ll negotiate.
- Negotiation means compromise — I’ve heard it said, and repeated it myself, that you know a negotiation was fair when both sides walk away a little bit unhappy. You need to pick your battles in all areas of life, and contract negotiation is no different. Pick the areas that truly bother you, and fight for those. Don’t get bent out of shape over a couple points, and then nitpick everything in the contract just to be spiteful. Know what you care about. Know what you are willing to accept. Know what you are not willing to accept. And be willing to let the other side win some points.
- Negotiations are part of the interview process — Suppose you get a job offer, accept, and are just finishing out paperwork to start, when you find a few gotchas in an employment contract and negotiations get heated. In my mind, this is still the interview process. Not for whether they want you, but for whether you want to work for them. Are they being reasonable towards you in what they are asking in the contract? Are they kind in their approach to you in negotiations? Are they explaining why they need certain clauses, and working with you to find common ground to reach a resolution? Or are they just telling you to sign it, no questions asked? However they are treating you during this process, is that how you want to be treated by your employer?
- Do not be afraid to get sued — lawsuits are a mechanism of conflict resolution. If the lawsuit has no merit, just work the mechanisms to fight it, and counter-sue for legal costs. And take it as a compliment that you are doing enough things right that a competitor is threatened by you. Because if you run a successful business, someone eventually will sue you. Consider it a right of passage. Hire a good lawyer. Deal with it. And move on. Don’t run your business in fear of it, or you will stifle yourself. (And if their suit does have merit, take the hit, learn your lessons, recover, and still move on.) Also, lawsuits are the most expensive and painful way to resolve a conflict. If someone went this far, they really are just desperate to resolve a problem. You have an opportunity to seek a better resolution, and I’d take it.
- Do not let lawyers bully you — lawyers are not scary. They simply wield knowledge and threats as a weapon within their profession. But patience, research, reading, and your own attorney will solve all things. And nothing a lawyer sends you demands an immediate response. Look things over carefully. Get help if needed, and respond appropriately. Do not let corporate lawyers tell you that you must sign contracts to keep your job. In some places, that is not legal. (Utah, for example.) In others, it may be legal, but you still need to see if the contract is acceptable. No job is worth signing a bad contract. Not if you are a software professional, not in today’s market.
- Cease and Desist letters have no authority over you — They are a warning shot over your bow. They may be followed by a lawsuit. You may want to cease and desist, depending on circumstances. Or you may not. You are your own person, and the decision is yours. Just because someone got a degree, passed an exam, and sent you a letter, does not give them any authority to tell you what to do. Of course, the lawsuit that comes next, if they win it, could have authority. So be as bold as you want, but don’t be stupid.