So, you’ve just landed your first, second, or five-hundredth writing client, and you think to yourself, “Should we put this agreement in writing?”
You don’t want to go out and hire a lawyer (too expensive, too time-consuming), but you do want to protect yourself and make sure you get paid for your hard work.
You’re not wrong to think about reducing your reelance writing agreement to a written document. As you probably already know, putting agreements in writing is beneficial for both the client and the freelancer (but not for the reasons you may have expected). What you may not have known, though, is that you’re perfectly capable of doing so on your own.
You’re probably not going to sue
While writing down agreements does make them more enforceable, it’s not because you’re likely to sue on the contract.
Yes, it is theoretically possible that if you enter into a written agreement with a client and they subsequently breach the contract, you could sue for damages or another remedy, like specific performance.
However, there are a lot of things to consider before you start waving around a Statement of Claim, including:
- Is the amount I’ve lost sufficient to make the expense (in time, energy dollars, and risk) of a lawsuit worthwhile?
- How strong is my case?
- Can I afford an attorney, or will I have to represent myself?
- Does a dispute resolution clause limit my ability to sue on this contract?
- What does the contract have to say about governing law and forum selection? In other words, where would I have to file my claim?
- Even if I win, can I realistically collect on the judgment?
And that’s just off the top of my head. To put it bluntly, unless you’ve suffered significant damages (at least tens, if not hundreds, of thousands of dollars), you’re probably not going to want to subject yourself to the stressful, expensive, and unpredictable realities of litigation.
And even if you have suffered those kinds of damages (in which case, my heart goes out to you), plenty of qualified lawyers will unequivocally recommend doing everything possible to avoid litigation anyway.
Sidenote: For the purposes of this article, I’m ignoring small claims court. That venue has all sorts of problems associated with it that are outside the scope of this article.
A contract will still get you paid
Despite the vanishingly small chance that you’re going to sue on the contract in the event of a breach, written contracts are a great idea for several other reasons. All of these reasons contribute to a higher likelihood of you getting paid. Well-written contracts:
- Clarify ambiguities in your agreements
- Ensure both parties are on the same page about the relationship
- Encourage realistic client expectations
Written contracts would be worth the effort for just one of these benefits, let alone all three.
Properly drafted contracts clarify the details of a freelancer-client relationship. For example, in my freelance writing contracts, I address:
- The scope of my services (word counts, revisions, etc.)
- The amount, form, and timing of payment
- Refund and cancellation entitlements
- Liability waivers
- Confidentiality and attribution conditions (including whether I can use the work in my portfolio)
- Forum-selection and governing law provisions (in the unlikely event of litigation)
No matter how hard I try, it’s unlikely that I would discuss all these details during a phone call with a new client. I’d undoubtedly forget one or two things, misstate something, or be insufficiently clear about something that requires clarity.
Putting everything down in writing forces me and the client to be crystal clear about what we want and expect.
Contracts encourage a meeting of the minds
With a properly drafted, unambiguous contract, there can be no doubt that the freelancer and the client are on the same page.
There’s nothing worse than thinking you’ve agreed with your client, only to find out later that they’re under the impression you intend to provide additional or unrelated services.
These disagreements usually don’t arise because clients are being dishonest or disingenuous. People just have a natural tendency to remember things in a way that benefits them and suppress facts that don’t. So, that conversation you had six months ago about only doing two revisions might not be at the top of your client’s mind when he asks for a third one.
When you have a written contract and this situation arises, you can politely and firmly point out the clause that settles the disagreement. No muss, no fuss. 99% of the time, reminding a client that they’ve agreed in writing to a particular scope of services settles the issue without any ill will or argument.
Sidenote: For a contract to be useful in this way, it must be clearly drafted. Limit the use of phrases that can be misinterpreted like “a reasonable number of revisions” or “of satisfactory quality.” Replace them with concrete metrics that can be hit or missed: word and page counts, specific rounds of revision, etc.
Contracts keep you grounded
I don’t know about you, but when I’m initially speaking with a new client, I tend to overpromise. My enthusiasm and desire to do well lead me to underestimate the amount of work and time involved in a task.
But there’s something about putting an unrealistic deadline or deliverable in writing that brings me back to earth. Seeing it in black and white in front of me gives me a dose of reality and helps me adjust my own, and my client’s, expectations.
When your client’s expectations are realistic you’ll be better able to meet them. And a client whose expectations are satisfied is a client who will almost certainly pay you, in full and on time.
How to use written contracts
There’s no magic format, template, or language to use when you’re drafting a written agreement. Yes, the gold standard is a custom contract drafted by a licensed and experienced commercial attorney, executed after both parties have received independent legal advice.
But let’s be real. You’re not running out to hire a $300-an-hour lawyer every time you agree to write a few thousand dollars worth of articles for someone new.
You could, as an alternative, hire a lawyer to draft an agreement that you use and adapt for each new client you take on. This is a great solution if you have the money. You just have to be careful to tailor the contract for each new client in a way that doesn’t impair the enforceability of the agreement.
You could also use services like LegalZoom, Rocket Lawyer, or Law Depot. Companies like these will automatically draft agreements for you that are loosely tailored to your circumstances.
I’m not a huge fan of these services. In my view, they don’t add a lot of value to what you can do yourself with a little bit of thought. They also tend to emphasize form and structure over content and clarity.
Instead, my favorite thing to do is to draft a carefully worded email after all discussions are complete and the client and I are in apparent agreement.
A theoretical example
SUBJECT: Writing Offer
Dear Ms. Smith,
It’s been a pleasure speaking with you over the last few days. Please find my offer for freelance writing services below. Don’t hesitate to ask me any questions you might have.
Offer for Freelance Writing Services
This email contains the entirety of the agreement between us. Nothing that isn’t mentioned, including anything we discussed previously, will form part of the agreement.
I will write an article on the subject of “What to do when you’re preparing to meet your personal injury lawyer for the first time.”
I will deliver the first draft of the article to you by email no later than April 30, 2021, at 2359 hours, Atlantic Standard Time.
If you deem it necessary, I will revise the article one time, but only if I receive your specific and clear revision instructions prior to May 7, 2021 at 2359 hours, Atlantic Standard Time.
I will deliver the completed revision, which will constitute the final draft, to you no later than May 14, 2021, at 2359 hours, Atlantic Standard Time.
The final draft will be no fewer than 1500 words long.
If, in your opinion, the final draft is unfit for publication, you may cancel this contract without payment. If this occurs, you may not use the article for any purpose and must destroy or delete all physical and digital copies of the article in your possession. Also, if this occurs, you must notify me of the cancellation of this contract immediately.
You will deposit $375USD into my PayPal account at email@example.com no later than May 28, 2021, at 2359 hours, Atlantic Standard Time.
You agree that I am not liable for any damages you suffer as a result of relying on or publishing the article.
You will post the article under your own name and I will not be attributed. However, you agree that I may use all or a portion of the article in my personal marketing efforts and in my portfolio. In all other respects, the article will belong to you and I may not make use of it except as already indicated in this parag