It’s a Contract: Some More Things I Didn’t Know You Didn’t Know

I recently had an appointment with a health care professional, and after the initial examination, the doctor came in to explain what she had found. Half way through I wished I could hit pause and start over. 

Everything the doctor said turned out to be accurate and true, but she spoke very fast, used big words and, generally, assumed I had a level of understanding of medical terms and concepts I simply did not possess. Several times during the consultation the doctor asked if I had any questions, sparking an internal debate over whether to remain ignorant in silence or speak up and remove all doubt. 

My ego struggled to take over. I am, after all, an educated man; shouldn’t I know – I kept asking myself – what on earth this person is talking about?  In the quiet reflection of the drive home I forgave myself for my foolishness after realizing that she was the doctor, I was the patient, I was paying her for her time and expertise and of course I was not expected to know everything about what she was trying to explain to me. 

The failing was hers and mine, but this experience left me asking, “do I do the same thing when talking about legal issues with my clients?

As a business attorney I deal with contracts daily. I think about, write about and talk about contracts every day. When I talk about contracts with my clients I do not consciously try to confuse, but I cannot help but conclude that I, too, sometimes assume my clients know more about contracts than they may actually know. Oh certainly, some of my clients are very well versed in many aspects of contract law and likely would leave few listeners doubting that they were indeed attorneys, or at least had been to law school. However, that is not the point. 

My job is not to assume my clients understand me. Rather, my mission is to ensure that my clients fully understand the issues they face, the likely governing rules and laws and the course of action being recommended and why. 

Under Michigan law, “a contract is an agreement, upon a sufficient consideration, to do or not to do a certain thing.” So how does one actually form an “agreement?”  To explain a contractual agreement without resorting to a meaningless tautology, lawyers are taught that a contract exists when certain “essential elements” are present, including parties who are competent to contract, a proper subject matter is shown, legal consideration is present and there is a mutuality of agreement and obligation.

To an attorney these “essential elements” may appear so elementary that further explanation would seem to be condescending. It’s not, lest we all forget that day in contracts class when to a room full of largely blank stares  the professor talked about a peppercorn being sufficient consideration, but doing what one is legally bound to do was not. Licensed attorneys know, or at least should know, that for consideration to exist there must be “a bargained-for exchange” with “a benefit on one side, or a detriment suffered, or service done on the other.” 

When you say it fast, this idea can seem self-explanatory, but that is the problem. As attorneys dealing with contracts, just like doctors dealing with sick patients, it can be far too easy to assume the listener finds legal concepts as simple as they appear to us. We forget that in law school, half the class received a grade of C or worse; contract law is not intuitive.

The lesson learned, or at least reminded to me in vivid detail, is that there is a reason my clients call me, talk to me and ask questions, and it isn’t to hear how impressively I can blather on about complex legal principles and case citations. My job is more than simply knowing the law. 

To be helpful to my clients I also must counsel, and I cannot do that very well if my counselee does not know what in the world I’m talking about. So, my continuing goal when dealing with my clients is to slow down, listen more carefully and never mistakenly assume that the silence in the room is anything more than silence in the room.

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