The Myth of “Anybody Else”

Or, How to Break an Impasse and Negotiate Contracts with an Inflexible Client

by Bill Thomas

“If you put new ideas before the eyes of fools

They’ll think you foolish and worthless into the bargain;

And if you are thought superior to those who have

Some reputation for learning, you will become hated.”

 – Euripides “Medea” (431 B.C.)

Spring semester sophomore year of college, I took one of my favorite classes: Greek & Roman Mythology. Go figure. I remember filing into the room the first day, one of those classic small auditorium style lecture halls like you would see in an 80s college movie. Your knees were head level with the row of seats in front of you. I folded myself into a chair somewhat near the back of the room, took out my notebook and pen, and unfolded the laptop desk from the armrest. As I began to scribble down notes, I felt a heavy hand on my shoulder. I turned to see one of the stars of the football team staring at me with a grin on his face. He was about to tell me how this was going down.

It could be someone in this picture. (c) AP Images.

Although he is truly a “public figure,” I have decided to protect his reputation by concealing his identity (also owing to the fact that he is still bigger than me). He told me to meet him outside the lecture hall after class and I obliged. We walked over to the xerox machine and I copied my notes for him. We also worked out an arrangement where I agreed to share my notes from every class, and he would therefore not need to attend. I managed to eke out an A-, I’m not sure what grade he received.

I share this episode because it fits well with a story I hear from design professionals negotiating contracts with new clients. After making modest markups to a contract the client presented them, the design professional will invariably receive a reply email stating the edits are all rejected because “anybody else we hire accepts this contract ‘as is.’” Just like college sophomore me, apparently, they must take the deal presented, even if it means there’s nothing in it for them. Let me suggest there could be another way.

In negotiating a contract with a client that insists on using their document, or else, I suggest a few strategies in reply:

First, you and your client have only gotten to the point of a contract because they want YOU. Something you shared with yourself and your practice, to that point, has impressed them. You are qualified, capable and a good fit. This is not just something anybody else can do. As this article suggests, that is a myth. Make sure your client remembers that in these negotiations. Remind them of the thing that set you apart. Of course, the assignment could just be a simple task that anybody else could do. If that is the case, and the client insists on total inflexibility in negotiating, you need to ask yourself if the job is worth it.

Second, although perhaps most important, you should remind your client they want a design professional who is careful, judicious and responsible. Paying attention to your contracts is an attribute of a true professional who cares about their business practices. That is the kind of professional your client wants to hire. Just anybody will not be as careful addressing the client’s needs as the project progresses or care as much about this relationship.

Make sure they know this is a win win.

Third, contracts are made to be negotiated. Often times, the agreement will have a paragraph that says it is the work product of both parties. This language is included so that, if there is an ambiguity in the agreement, it cannot be held against one party or another. (More on this concept to come in a future article). They are never “one size fits all,” so take a moment to point out why the language in issue is not appropriate for the specific project at hand.

Fourth, many contract provisions could put your liability insurance coverage in jeopardy. Some words, assumptions of risk, and obligations are not covered under your professional liability insurance policy. Your client will want a contract that is “covered,” and should not be willing to put their protection at risk through inflexibility in negotiating. Your insurance carrier will often assist in contract reviews as a loss prevention service, or, your insurance broker may help with review of specific terms. (You could also find a lawyer out there with skills in reviewing contracts). It is worth the effort and minor expense comparatively to make sure your agreement is not unnecessarily exposing you to increased liability.

Fifth, because clients often like to use form documents on all their projects for consistency’s sake, and in multiple states, there may be language that is unenforceable in the state where the project is located or where the local law will apply. The last thing your client wants is an unenforceable agreement. You should reach out to a lawyer to review the agreement for this reason alone, and your client should be willing to accept revisions that bring the document within compliance of local rules.

Finally, remind the client what you are both wanting is to establish a good working relationship, because this could be the start of something beautiful and long term. You cannot go into a new relationship where one side feels like they are treated unfairly at inception. Further, this document may become a template for future projects, and so, it is important that you get it right from the beginning.

Hopefully, with a few reminders and encouraging words, you can convince an inflexible client there is merit to spending a little time negotiating the important terms of your deal. If you need someone to be your “heavy,” I will see if a certain former Pro Bowl football player is available. If not, maybe I could help. After all, I take good notes…

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