Many years ago, a client asked me to prepare an agreement. For obvious reasons, I cannot go into detail, however when we met to discuss the draft agreement, my client first commented on how professional the agreement looked (always appreciated), but then asked, “is all this really necessary?” She was referring to the inclusion of certain provisions that she was afraid might “scare off” the other party.
In my practice, other clients have asked similar questions. In fact, over the years, I have encountered more than one individual/business that had entered into previous "handshake" agreements -- with varying degrees of success. Of course, perceived “nitpicking” by lawyers is the subject of many jokes (and sometimes accurate observations, but we won’t go there). However, there are usually legitimate reasons to include certain provisions in agreements, even if the parties themselves don’t realize it. For example, most entertainment deals implicitly involve copyright licenses or acquisitions. This frequently requires certain language to be in writing to be effective and enforceable. It is also critical to ensure that the parties’ entire agreement is accurately memorialized in writing, in case a court must interpret it at some point in the future.
Certainly, a written agreement can grow to unnecessary detail and length, but that is not the goal of most lawyers. When negotiating any deal, the parties should discuss with their respective lawyers the written requirements and never assume that a simple deal memo -- or worse, no written agreement at all -- will suffice. Most lawyers would rather work with a concise agreement that addresses all of the critical issues involved in a particular deal; however, this is not always possible.
L. Kevin Levine is the founder of L. Kevin Levine, PLLC (go figure), a boutique entertainment, copyright, trademark, and business law firm in Nashville, Tennessee. A lifelong musician who grew up in his family's music store, it was inevitable that Kevin would build his legal career in entertainment and business.