(To the tune of Fleetwood Mac’s – Landslide)
I took a call, I wrote it down.
Dictate a letter then I wrote it down.
Gave a thorough description for the multi page bills
Got a timesheet and wrote it down.
Well I’ve spent days just billing ‘cause I need a lot of point-twos.
A briefcase holder pushin’ Sisyphus’ boulder
I’m getting old too soon.
– “Timesheet” – Cool Hand Yukes
In another life I was in a band. A nascent passion project of one of my best friends who had the courage to ask me to join him. He was courageous because I did not play an instrument – at the time. He got us a gig before I even knew how to play. I picked up the bass and learned the songs in our set, but that was it. I really couldn’t “play” the thing. And by “the thing,” of course I mean a ukulele bass, because, well, we were an all ukulele band; thus the name. The Cool Hand Yukes. We were a smashing success, but unfortunately there was one thing that kept us from performing much more thereafter: time. That was because for us, time was “of the essence,” and there was scarce little of it to go around. If only we had more time? Indeed, that must be the last question every one of us asks ourselves before we spin off this mortal coil…
We wrote and performed a parody song, “Timesheet,” set to Fleetwood Mac’s “Landslide,” for a local annual lawyer’s show called “The Gridiron,” where we have a few laughs at the profession’s expense. Quoted in part above, it contains my favorite line, and which epitomizes the life we live as lawyers. The line about Sisyphus, of course. (I mean, I try my best to stay “on theme.”) In a world where our time is recorded in tenths of an hour, a “point-two” would account for nearly 10 minutes. So, it is the building block of my days filled with receiving, reading and responding to emails, mostly, and occasional phone calls. It reminds me of a funny story about a partner at my old firm, who decided he did not want to work hard any more. We called a meeting with him to urge him to increase his hours, and in response he tendered a list of ten things. He told us to pick four, and those would be the things he would do so he could bill more time. One of them was “Abandon joy.”
I did not mean to make this posting such a downer. I intended for it to be an uplifting, tongue in cheek exposé on why time is so important, so essential, and not just for construction contracts. Time is of the essence regardless of whether or not it is in your agreement. It is simply superfluous language. You are never getting time back if it is wasted. The schedule is what it is, and if it is not met, well, someone is going to get sued.
Almost every contract I see these days, even for design professionals, will pronounce that “time is of the essence.” Without fail, I always instruct my clients to strike that out an insert some such replacement as:
“Look, we get it, you have a tight schedule, but, let’s be honest, your contractor is not going to give us the proper submittals or you won’t have all your materials chosen, you are going to make a bunch of substitutions, the officials working for the authorities having jurisdiction are going to take their sweet time, and make us change a bunch of stuff, and eventually, the contractor is going to make some mistakes and ask a bunch of questions and just not finish the job on time because they will not properly manage their labor forces and subcontractors, who will themselves not have enough labor and will mess a few things up, and at the end of the day, let’s face it, you have not set an appropriate contingency even though we told you to, and you will just look to us as your cost recovery program anyway, so, that reminds me, maybe we didn’t ask for enough fee for this contract. Oh, and we will endeavor to try to do what we can to meet the schedule under all those circumstances.”
That usually itself gets stricken and replaced with “Time is of the essence.” Yes, that was the original language. But, is it really necessary? What does such language even mean for the contracting parties? Does it imbue the contract with self executing remedies if one of the parties is late with something? Not really. Does it elevate all deadlines in the agreement to “material breach if missed?” Maybe. Does it create ambiguity and confusion and give design professionals’ insurance companies that not-so-good-inside feeling? Definitely.
So, in summary, quit wasting time, contract drafters, trying to state the obvious. All too often, I will have clients ask me, “should I strike this language?” And if it really doesn’t do anything and doesn’t create any new or additional rights or remedies, you have to wonder why it is even there. My guess is that it gave someone somewhere the opportunity to bill a few “point-twos.”
If you have any serious contract questions, reach out, I am sure to have some light-hearted answers for you.