Got a technology contract to cover your latest deal, like an acquisition, merger or commercial \n\ntransaction? It may not protect your interests the way you think it does. Horribly written contracts \n\nfor tech and telecom deals cross my desk every day\u2014they're a lawsuit waiting to happen. When a \n\nlawyer writes a contract, he should be writing a document that tells a story about the deal, albeit \n\nwith a tilt toward his client. Often, what I see isn't a tilt\u2014it's illiteracy. (Also read The Keys to Vendor Management for more on the basics to negotiation to ROI and SLAs.)In the past, legal documents, whether private placement, merger and acquisition, or documenting a \n\nlarge commercial transaction, used a time-tested formula established by quality lawyers. The deal \n\nprocess was a sophisticated one, done using a mature contracting process. The lawyers involved even \n\nunderstood what it was they were doing. The problem these days largely surrounds tech and telecom contracting. Usually, the first draft \n\nof the contract comes from the seller of the services. It might be services like managed network \n\nservices, the development and maintenance of a website with Web 2.0 features, or for the \n\ncustomization of some software. While in many ways the Web 2.0 world is more sophisticated than the \n\ngo-go dotcom 1990s, more often than not these deals still show the wisdom of the 20-minute-old dotcom \n\ndriving the deal. (All that's missing are pimples on the documents.) However, don't think this arises only when doing deals with smaller or startup companies. I once \n\ndid a deal with IBM and I smiled when I read the master agreement because it was a well-written \n\ndocument crafted by some major New York law firm. It had the pro-IBM bias that I expected, but it's \n\nsimple to negotiate it back toward the middle (as your vendor is kicking and complaining\u2014and \n\nlying\u2014that you're the most difficult customer they've ever had). But then I read Exhibits A - F. Now I was reviewing the workmanship of six different writers from \n\ndifferent departments with titles varying from paralegal, to contract specialist, to sales person. \n\nThey did not collaborate before they added their piece to the agreement and the only things they \n\nseemed to share was that none had ever read the master agreement and they had no skill in legal \n\nwriting. More Articles on Legal Issues:\n\nFive Ways IT Can Avoid a Privacy Lawsuit\n\n\nHow to Comply With E-Discovery Rules Before You're Hit With a Lawsuit\n\n\nThe Keys to Vendor Management\n\n\nOutsourcing Contracts: Clause Control\n\n\n10 Questions to Ask Before Signing a Leasing Contract\n\n\nNegotiating Long-Term Contracts Requires Strategic and Tactical ThinkingIt's really a simple formula. Poorly written contracts lead to war. (In our society, we call \n\nlegalized and ritualized warfare\u2014"civil litigation." Some speculate that it's an improvement \n\nover dueling, but I wonder about that.) Assume New People Will Be InvolvedWhen people are negotiating a deal, they have a natural tendency to assume that the team putting \n\nit together will be the team implementing it, but it's best to start from the opposite perspective. \n\nAssume that none of the players at the negotiating table will be involved after the parties sign \n\nthe contract. Businesses are sold all the time, people are promoted, and consultants move along. \n\nWhen these things happen, it means that whoever knew what the contract "really" meant is gone. The \n\nwritten document has to stand on its own. When the person across the table doesn't want to take the time to clarify a provision in the \n\ncontract, he'll often say something like, "Come on, you and I know what it means. Just trust me." \n\nAt that point, I like to say, "I do trust you, but I assume that you're so good at what you do \n\nthat you'll be outta here doing bigger and better things in about four minutes. It's not you I don't \n\ntrust, but rather it's your replacement I don't trust. So let's clarify the clause." You know you have a well-written contract if someone who knows nothing about the specifics of your \n\ndeal could read it and understand the deal. If your contract doesn't meet this standard, you need to \n\nnegotiate one that does. The "Why" Behind "Poorly Written" Let's do a reality check. Why are tech contracts often so bad? It turns out that many factors are at play here. Tech contracting is a relatively new legal \n\nspecialty. Outside of a few places like Silicon Valley and New York, you just can't find many \n\nlawyers with legitimate experience doing these deals. Of course, as you might expect, the definition of "legitimate experience" may just vary depending \n\nupon whom you ask. An aggressive General Counsel who's a generalist with budget constraints may think he has \n\n"legitimate experience." An aggressive outside counsel looking for business may believe that he has "legitimate experience" \n\nbecause he's a lawyer, he's written a contract, and his assistant uses WordPerfect 5.0 on a 386 \n\nrunning DOS. (For those of you under age 35, DOS was an ugly operating system brought to us by Bill \n\nGates before he gave us Vista with all of its pretty visuals that bog down your PC.) Now, the potential client asking about the experience might have the audacity to think that \n\n"legitimate experience" has another meaning. She might think that it includes actually having done \n\nseveral of these deals in the past and involves general knowledge about intellectual property and the \n\nunderlying technology that the contract addresses. Sometimes people paying fees can be so darn \n\ndemanding. Having said this, before you think that lawyers are completely at fault for bad tech contracting \n\npractices, let me assure you that it's not true. Many times, the first draft that I see has never \n\ncrossed a lawyer's desk. After all, why involve your tech lawyer when you have the contract form that somebody else in your \n\nindustry used or you have the contract your lawyer gave you for a completely different deal? As for the answers to bad tech and telecom contracting processes, we could start with the idea \n\nthat one size doesn't fit all. While it's tempting for a vendor to use the form his competitor used, \n\nhe really doesn't know that it's any good\u2014and the odds are that it isn't. In fact, chances are \n\nthat they "borrowed" it themselves. Propose Your Own ContractIf you're on the buying side of a tech deal, you should consider having your lawyer prepare the \n\ncontract from scratch. While this may seem like an expensive fix, it may not be\u2014it takes more \n\ntime, and more money to try to patch a poorly written agreement. Moreover, the result of a complete \n\nrewrite is often better because no matter how hard you try to repair a bad first draft presented by \n\nthe other side, experience tells me that you can never quite make it right. If the other side doesn't like this idea, tell them that it's a Board requirement and then have \n\nyour Board require it. (Don't you just love hiding behind that faceless Board when it's convenient?) \n\nIf your tech deal is worth doing, it's worth doing right too. If you're buying tech services, you should demand that the other side agree to high-quality legal \n\ndocuments. If excellent documentation doesn't seem important to them, you should question at what \n\npoint high quality will become important to them. Mark Grossman is a tech lawyer, business advisor, and \n\nnegotiator. He is the founder of the Grossman Law Group \n\nwith offices in Manhattan and South Florida.