Here is an odd question for a lawyer to ask: Is it worth even bothering entering into a written agreement? Or how about this: Is my contract worth the paper it is written on? These are propositions that are commonly put to lawyers by clients with reservations about the contracting process (or more commonly the cost of that process).
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Any litigation lawyer would be able to roll off numerous examples of parties taking each other to court where the predominant reason for that is the failure to document an agreement in writing or to poorly document an agreement. So clearly the right answer to the above questions is yes.
But let me put forward a counter view as to the utility (or lack thereof) of a written agreement. I am a big NBA fan. I enjoy the game but also take an interest in the business side of the league. Recently one of the biggest names in the NBA, Anthony Davis, publicly demanded a trade from his team, the New Orleans Pelicans.
Davis is under a legally binding fixed term contract with the Pelicans to play with them until the end of next season. Despite this contractual obligation, the trade demand means that the Pelicans will end up having to trade Davis (likely sometime over the NBA off-season), as no team wants to have a player who doesn't want to be there. This is becoming a trend in the 'age of player empowerment' in the NBA.
While the Davis case is an extreme example and one taking place far from Newcastle, it is a good demonstration of where the realities and practicalities of life, together with the power of human free will, can take precedent over the law.
As lawyers, the laws of the land are our framework to advise clients, but those laws sit within a much broader framework of other things such as corporate culture, politics, big business and human nature.
The moral is that while it is important in business to ensure that you have proper legal advice and carefully document your affairs in writing, there are often greater forces at play that will govern the outcome. An experienced lawyer should be able to assist with recognising how a deal also sits within that broader context.
In a time when the 'gig economy' continues to grow and itchy feet millennials are to become the predominant driving force of the workforce, the potential shift towards human free-will over contractual legal restraint will certainly be something to monitor closely.
Dean Frith is a lawyer and partner at Baker Love Lawyers
