Contractually Bound, Minding My Own Business

Want Enforceable Contracts? Step One: Use written ones!

Questioning Questions??

I am asked contract questions by small business owners all the time. Basically the owner invariably wants to know, “Would my contract stand up in court if I have to sue or get sued?” My response is usually to ask (lawyers have a genetic defect that makes them answer questions with questions) if they always have a new contract signed for every job, with every customer and if they can find all their contracts when they need to? This is usually met with a long pause and then a look that’s something like, “He makes a living doing this???”


But the real reason I’m asked the question in the first place is that most small business owners (fortunately) don’t get sued, or have to sue, too often. That means they never have their contracts tested trying to enforce or defend one. Understandably, it would be comforting to know if, after all the hassle that can be inherent in getting clients to sign a written agreement, if it is even enforceable anyway.

Crystal BallFuture

Some people seem to think that if they show me their contract, I can pull out the crystal ball they give all of us in the second year of law school, and after I peer intensely into it, a before-then-unknown future is revealed to me. Of course, the future revealed takes place in a courtroom with a Judge ruling on the validity of the guy’s contract. Unfortunately, I must’ve missed class the day the crystal balls were passed out, because I don’t have one and I’ve never been able to do this.

Is that a Vulcan Thing?

I suppose it’s easy enough to just answer with a classic. Like rattling off something about a contract requires an offer and acceptance with valuable consideration exchanged and a meeting of the minds. But this answer seems to draw another look that indicates my ability to financially support myself is seriously being questioned. To avoid this constant questioning, I usually try a different approach.


I have never seen a perfect contract that will be guaranteed to be upheld in every imaginable, unknown factual situation that may come up. My prediction is usually worthless in the end (particularly when they don’t show me the contract) and I think the focus should be on a different aspect of the contractual relationship that’s controllable: It’s physical manifestation.

Get What You Pay For

Of course it is best to not use the contract you found on the internet that seems close to a good fit. Or better yet, don’t use the contract you cut and pasted together from many contracts you found on the internet. Make sure you have a solid agreement that was at least reviewed, if not written, by a lawyer with contract experience. It is a critical part of getting paid for what you do after all and not the best place to cut corners to save a little money (Grandma called it pennywise and pound-foolish).


The most important thing is to make sure you require a signed contract before starting any work on any job. Especially with existing clients. It is when you deal with people you think you know that most people get lax and don’t get a signed agreement. It is also when you will let your guard down and tend to have your larger credit lines extended. It isn’t a coincidence that people behave a bit differently when they know they have a signed agreement with you.

Don’t Trust–Verify FirstNo Deal

Because you have done business with the client before and for awhile, it is only natural to get a false sense of trust built up. Then you get sloppy (or lazy or don’t want to offend) and you’ll let them go a little longer or deeper with you on credit. But don’t do it. Guard against this.

This is when you have the most exposure. And it is when it hurts the most if a dispute comes up or the deal goes south or for some other reason the client can’t or won’t pay you. This is when you look back in the file after trouble has begun to find the contract it never seems to be there.

I Can See . . .

There is a future I can see and one I can guarantee will come to pass. Without that signed contract I”ll guarantee a future that is going to be harder and more expensive when you try to sue the contracts client. Without that signed paper, you probably lost your ability to collect the costs of collection, including recouping any of your attorney’s fees. Or worse, now you can’t prove it at all if the former client can’t seem to remember anything at all about this account or the terms you’re talking about or who the hell you even are?

diceIncreasing the Odds

My point is that no matter what type of contract you have it can be completely unenforceable if it is unused or goes unfound or is unsigned. The most important issue for a small business owner to worry about is actually using contracts religiously on every project and always requiring a signed contract for every job, from every customer, on every account and in every situation. At least this way when you do need to sue something out, or worse yet you get sued, you’ll have the best chance at prevailing. And prevailing in the most effective, efficient and economical way possible.


BTW: Yes, oral contracts are valid in Minnesota and can be (and are) successfully enforced. It is much more difficult and expensive to enforce an unwritten agreement if the other party denies the agreement or disputes the terms and conditions that you believe were agreed upon. Oral contract cases can (usually do) devolve into messy “he said-she said” situations that are decided on highly subjective credibility determinations alone. Don’t bet on that one.

Minding My Own Business

News From your Friendly Minnesota Secretary of State’s Office

Good news about new business start ups. New businesses starting up make business attorneys very happy!

Minnesota on Pace to Exceed 2013 in New Business Filings

More than 14,000 New Business Filings Reported in Third Quarter

Posted Date: 10/8/2014

Contact: Nathan Bowie, (651) 297-8919,

SAINT PAUL, Minnesota — Secretary of State Mark Ritchie reports 14,135 new Minnesota businesses were filed in the third quarter of 2014, bringing the state’s year-to-date filings to 45,637 — edging out the 44,544 new business filings reported through the third quarter in 2013. The 2014 business filings are on pace to surpass the 58,260 filings for all of last year.

“It’s been a strong year for business filings, and these numbers point to the great number of innovators and entrepreneurs who call Minnesota home and believe in doing business here,” says Secretary of State Mark Ritchie.

Minnesota’s new business filings reports are available to view online for 2014 and 1990–2013. Last year, the Office of the Minnesota Secretary of State reported 58,260 new business filings, the third-highest annual total on record.

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Legally Educated

Knowing is Not Quite Half the Battle

A guest post from my law clerk. Next up, we’ll get the new attorney to write one. Scott’s writing below is kind (and well done), even if he does call me old. Your check is docked!


My name is Scott Jurchisin, and I am the new law clerk at MKT Law. I went to college at Hamline University, where I majored in Legal Studies and Philosophy. I am now a second-year law student at William Mitchell College of Law. I started competing in mock trial in high school, which is when I decided I wanted to become a lawyer. I continued to compete in mock trial through college, where I was nationally recognized for my performance. One of my mock trial coaches happened to be one of Mark’s former law clerks. So during my first year of law school, when Mark was looking for a new law clerk, my former coach gave him my name. Since then, I have been working for the firm and gaining real-world experience, which law school classes are unable to provide students.

Final exams in law school are supposed to measure how prepared students are to practice law. My final exam for my Contracts course was about whether a business and a building manager had an enforceable lease. I ended up writing nearly twenty pages over the course of three hours. After working at MKT Law, PLC for Mark K. Thompson, I realize that final exams are not a measure of my preparedness to practice law, but only of my knowledge of certain subjects.

Here’s the difference: When studying for my Contracts final, I am working in a closed environment. I could look at my list of all the topics covered in class that semester (offer, acceptance, consideration, promissory estoppel, the statute of frauds, the parol evidence rule, capacity, quantum meruit, etc.) and know that I would only be tested on those, and nothing else. I knew that there would be issues dealing with contract law, and my only obligation was to spot the contracts issues and write about them until my fingers went numb.

In contrast, whenever Mark gets a new client, I do not know exactly what the issue will be. The case will most likely require me to both identify and learn about an aspect of the law I am unfamiliar with. Fortunately, I have access to several resources at work (past cases, statutes, Mark’s years of experience and knowledge) that make the assignments from Mark manageable, unlike at school, where the only tool I have is my own brain.

Since starting work at the firm, I have realized that law school exams cannot mimic this aspect of real life: where the student is completely unaware of what type of issue a client will have. Students have to know the subject of the exam or they will not be able to study for it beforehand. In the legal field, lawyers find out what the problem is and then research it. Because of this difference, final exams measure how much a student knows, while the work of an actual lawyer measures how well a lawyer learns.

This is one of the many reasons my experience with Mark has been so valuable. Working at a firm gives me an opportunity to struggle with and learn the law without being confined to a particular subject area. When Mark hands me a new file, I do not know whether the issue will be regarding employment, securities, a personal injury, default on a loan, the breaking of a contract, a failure to disclose, or contractor services. Law school does not give me the same opportunity to constantly learn and explore the law that this work experience does. Working with Mark allows me access to a resource I never had access to before: the mind of someone who has been working in business litigation for fifteen years.

While Law school exams give me an opportunity to apply my knowledge, the firm constantly gives me opportunities to learn. In a world where “no two days are the same,” as is often fondly observed by Mark, being able to learn is more important than being knowledgeable.

Discovered on Demand, Litigation of Business | Business of Litigation

Preserving Gmail for Dummies

Awesome news! On the path to no reason not to request ESI in smaller cases or even every case!

Ball in your Court

gmail_GoogleI posted here a year ago laying out a detailed methodology for collection and preservation of the contents of a Gmail account in the static form of a standard Outlook PST.  Try as I might to make it foolproof, downloading Gmail using IMAP and Outlook is tricky.  Happily since my post, the geniuses at Google introduced a truly simple, no-cost way to collect Gmail and other Google content for preservation and portability.  It sets a top flight example for online service providers, and presages how we may use the speed, power and flexibility of Google search as a culling mechanism before exporting for e-discovery.

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A New Champ!

  litmagglassBing and Microsoft get the award for this year’s (so far) finest, fine print award. Yes, Bing & MS win the coveted Lighted Magnifying Glass Trophy for 2014 (so far)!!!!

bingI suppose I shouldn’t complain. They sent me a card for $200 in free ads! But when you flip it over and read the fine print that the asterix obviously leads you directly to like a road map you find this:


The photo doesn’t do it full justice, but it is actually on the bottom of the reverse side of the second page. But wait! It gets better! The disclaimer/warning/notice is also placed in a grey shaded area and the type color is GREY! GRAY, Microsoft, Grey! It looks like MS just gave up and isn’t even trying to be sneaky and maintain any plausible deniability because the type color for the MS logo is actually dark, normal black. But I do kid.

I still love you almighty, omnipotent and omnipresent MICROSOFT and your asterisked disclaimer is really quite kind and doesn’t significantly limit my ability to get $200 in free advertising. Does anyone use Bing? Do you bing things?

Now if all free ads would stop asking for my credit card before I get the free part of the deal I’d feel a little better and maybe even like I was actually getting something free. After all, we know you do that because you’re banking on us forgetting to cancel the damn order once the free part is over.

We didn’t really want this in the first place anyway because all we really wanted was the free thing. And only because it was free, ya know? But it’s too late again and now I’ve paid four months for something I never used once and don’t even remember what it was. I gotta cancel this.

Now if I could just find the unsubscribe or cancel procedure written down somewhere on this webpage . . . . Maybe it’s written in grey ink in that gray box at the bottom and on the flip side of the last page?


Minding My Own Business

A New Desk (a new atty too)

My new desk is finally complete! It was supposed to be for my new law clerk (who isn’t very new any more) and was going to be done back in May–Five months later: TA-DA! Now that I’ve hired my first Associate Attorney (more later) I’ll just say it’s for the new attorney. Just to be special, ya know? Now that I think of it, the law clerk was supposed to have written a blog post sometime this summer too. I wonder what ever happened to that? I’ll check and get back to y’all (or he will). Until then, enjoy the wonders of the new desk in full living color, showing off all of it’s glorious deskiness  . . .

new deskMKT