Navigating the Freelance Jungle, Part 1 of 3
by Frank Taney, 1 Jun 2009

Frank Taney, Jr. is a shareholder in the Philadelphia law firm of Buchanan Ingersoll & Rooney PC, where he chairs the firm's Information Technology Litigation Practice Group and is a member of the firm's Technology Transactions Group. Frank's litigation practice focuses on a variety of substantive areas, including information technology, intellectual property, antitrust and construction litigation.

In addition to his law practice, Frank is active in the Philadelphia regional business and entrepreneurial communities, and is a member of numerous boards of local organizations.

This article is the first in a series of three devoted to "safe" contracting for freelancers. In this context, "safe" contracting means using a contract that minimizes your exposure to disputes and other unintended consequences arising from an engagement.

This installment discusses some techniques on how to address two important items for any freelancing contract: the "scope of work" and the "performance standards." Scope of work means the written description of the items of work that you must perform in order to receive the agreed upon fee, and "performance standards" means the level or quality of performance that you have agreed to provide in connection with your work.

The most important thing to achieve in drafting these items is clarity. Clarity is your best defense against disputes. Ambiguity, the enemy of clarity, breeds disputes. Disputes are disruptive, cause you stress and poison relationships. Also, unless there is a lot of money at stake, it may be cost-prohibitive to hire a lawyer. For these reasons, in many ways, if an engagement degenerates into a dispute, you may lose regardless of the outcome.

At the outset, realize that the ultimate potential audience for the contract document is the judge, arbitrator or jury who will decide a dispute if it arises. This decider, otherwise known as the "fact finder," will not be familiar with you, your contractual partner, or the subject matter of the contract. You must draft the scope of work and performance standards so that this stranger, the fact finder, can understand.

The starting point for crafting a statement of work is to describe each item of the work in plain English. If you must use industry jargon or technical terms in describing the work, be sure to explain the jargon or technical terminology in the contract. In describing the work that you will do, use objective terminology and avoid vague marketing terms (i.e., "cutting edge," "customer centric", "best of breed", or "state of the art") that may mean different things to different people.

In any engagement in which you will be directly working with your customer, or depending on your customer to perform certain tasks to enable you to perform your work, take equal care in defining the limits of your respective areas of responsibility. Vague phrases like "facilitate," "coordinate" and "cooperate" often give rise to disputes about whether vendors and their customers fulfilled their responsibilities. Objectively specify those tasks for which you and your client are or are not responsible.

If possible, depict the intended work product graphically, such as by way of sample screen shots or a flow chart showing the user experience or the flow of the functionality. This is one more application of the saying "a picture is worth a thousand words." In a lawsuit, the correct figure is more like five thousand.

All of these techniques are equally useful for drafting the performance standards. In addition, use the underlying business need giving rise to the engagement as the starting point for the standards. If you were hired to give the customer an application that will allow a certain number of transactions per second, or concurrent users, or similar objective result, make that objective criterion the applicable performance standard. This will reduce the client's ability and inclination dispute your entitlement to compensation based on the application's performance.

Depending on the nature of the engagement, getting to clarity on the scope of work and performance standards can take some work. When compared to the cost and disruption of a dispute, however, this work is a worthwhile investment for any freelancer to make.

Mr. Taney's comments are general and information in nature, and not intended as legal advice.