How do lawyers handle mundane contracts in their personal lives?

March 31, 2010 9:10 PM

If you're an attorney, I'm curious how you handle all the mundane contracts (such as Web site terms of service or software licenses) with which people are expected to comply these days?

A typical week in the modern world requires at least tacit acceptance of several contracts, such as software EULAs, Web site terms of service, disclaimers at the auto mechanic's shop or privacy policies at a doctor's office.

A layperson lacks the legal training to evaluate these contracts and I reckon that most just agree to them without any thought, but I'm curious how attorneys handle them in their own life.

If you're an attorney, do you really read the entire software license before clicking the "I agree" button? And if you really read those things, how could you possibly accept some of the ridiculous clauses they contain? Or do you try to negotiate these terms somehow? Do you actually read the terms of service for every Web site you use? Do you then periodically monitor them for changes in policy since they change without notice?

posted by tomwheeler to Law & Government (31 answers total)

I sometimes read them and sigh at my neurotic self for doing so, when I know I'm in no position to negotiate. Sometimes I remind myself that there are disputes over how enforceable really "ridiculous clauses" are--for example, EULAs--and that makes me feel better. Sometimes I scroll through impatiently without reading. Once in a very long while I read something that gives me enough pause to dissuade me from whatever I was attempting to do, but that's rare.
posted by sallybrown at 9:22 PM on March 31, 2010

I sometimes scratch out provisions I don't agree with.
posted by abdulf at 9:23 PM on March 31, 2010 [2 favorites]

I act just like everyone else, except that when I click "I agree," I am slightly anxious and feel bad about not reading the whole thing.
posted by pitseleh at 9:23 PM on March 31, 2010 [10 favorites]

I sometimes scratch out provisions I don't agree with.

How does that help anything?
posted by gjc at 9:25 PM on March 31, 2010

If you're an attorney, do you really read the entire software license before clicking the "I agree" button?

Never. I sometimes read other day-to-day contracts though, depending on my mood and how mundane I think they really are.

I once refused to sign a form at my doctor's office that said they had given me the HIPAA privacy information when they hadn't. They were so confused. I don't think anyone had ever questioned it before. But I didn't really care about HIPAA, I was just feeling ornery that day.
posted by amro at 9:25 PM on March 31, 2010 [4 favorites]

(If it's a form on paper, though, I often read the whole thing and occasionally delete or modify provisions. Sometimes that causes a problem, sometimes it doesn't. At least once that has saved me in a big way.)
posted by pitseleh at 9:27 PM on March 31, 2010 [2 favorites]

Heh, and what pitseleh said.
posted by amro at 9:28 PM on March 31, 2010

Er, on lack of preview, pitseleh's first comment, that is.
posted by amro at 9:28 PM on March 31, 2010

Yeah, this:

I act just like everyone else, except that when I [perform activity] I am slightly anxious...

is an all-purpose answer to "How do lawyers feel about [activity]?"
posted by sallybrown at 9:33 PM on March 31, 2010 [7 favorites]

As a torts professor once told me: Sign now, litigate later.

(I haven't practiced law for a long time, so I don't admit I went to law school any more.)

More seriously: it's all boiler plate anyway, often legislatively mandated, and sometimes already judicially made meaningless. you can not, even if you tried, sign away your right to expect a certain level of care and responsibility in any situation. (That doesn't mean that if you sky dive, you have the same expectations of a save landing as you do on an amusement park roller coaster, but the rented parachute must be diligently packed no matter what the papers say.)

License agreements are controversial, (and far from my field, even of old) but still there is only so far the companies can go without your permission, and the real changes are going to have more to do with policy decisions than wording. At least that is the expectation I operate under because I don't really have any other choice, I can't negotiate individual concessions, right? And that lack of negotiating ability, taints our acceptance too.

But like I said, I'm not a lawyer.
posted by Some1 at 9:36 PM on March 31, 2010 [1 favorite]

My contracts professor said just click through and accept them. They're contracts of adhesion--not much you can do.

I have always just said yes to it all.
posted by Ironmouth at 9:55 PM on March 31, 2010

Sometimes I cross out really crazy provisions--like indemnifying a whitewater rafting company from intentional torts or something like that. Most of the time I just click yes or sign it.
posted by lockestockbarrel at 10:04 PM on March 31, 2010

Occasionally I read them, just because I did an emphasis on dispute resolution and am interested to see the trend in arbitration clauses these days. (Though I ended up in the criminal world, not the ADR world.) But basically, I ignore them, and realize I have 0 chance of getting out of them, with legal training for the company to hold against me.
posted by Happydaz at 10:29 PM on March 31, 2010

Sorta depends ... unimportant things like website TOS's or software licence agreements I don't bother with; participation waivers, paper purchase agreements, leases, employment contracts, and insurance I generally do.

But I a not US based ... so I also am protected a little more against unconscionable contracts, unreasonable terms, and contracts of adhesion.
posted by jannw at 3:28 AM on April 1, 2010

Most agreements, particularly everyday contracts of adhesion (eg - EULAs, the little text on ticket stubs, and other contracts over which you have no control) are either too factually or practically or legally insignificant to care about. Factually insignificant = any possible dispute would involve such small amounts of money that there is no point worrying. Practically insignificant = any attempt to change the matter would involve more effort than the benefit gained OR the vendor will not likely enforce the contract meaning that it is effectively useless. Legally insignificant = contract has little standing.

It takes a little legal training to know whether a particular agreement is factually, practically and/or legally insignificant (not that those terms are terms of art - I just made them up), but many day-to-day contracts are. Meaning that worrying about them is pointless.
posted by kid A at 5:26 AM on April 1, 2010

I should note that there are obvious exceptions that are very important - contracts for sale of land, employment contracts, contracts for services, contracts to do with ownership of my intellectual property - all of those demand to be read carefully.
posted by kid A at 5:28 AM on April 1, 2010 [1 favorite]

Cross through arbitration clauses. Most consumer contracts (most notably cell phones, but even some real estate deals) today require you to sign away your right to sue in court and instead appear before an arbiter, often one handpicked by the company or at least bias in favor of the 'repeat player'. Rent-A-Center v. Jackson is a pending SCOTUS case that could limit even the ability to challenge the validity of the arbitration clause, possibly making arbitration the law of the land in effectively all consumer cases.

Crossing though may not help, but you never know. Can't hurt to take steps to preserve what little rights and leverage you have.
posted by T.D. Strange at 6:18 AM on April 1, 2010

Is there any validity to the idea that the same boilerplate clause may not apply to a consumer but would apply to a trained lawyer?
posted by smackfu at 6:38 AM on April 1, 2010

Everybody loves this story because it confirms every stereotype they have about lawyers: My husband and I are both lawyers; he does some work for the local hospital, and helped rewrite their HIPPA disclosures that you have to sign when you go to the doctor, that lets them bill your insurance and whatnot. When we went to the doctor, he carefully read the entire thing and crossed out the provisions he disagreed with before signing. I was like, "...dude?" and he said, "Well, I wrote it to be favorable to THEM, not to the patient, and I'm certainly not signing THAT!"

We then spent an hour arguing about whether or not the desk clerk had the authority to accept the changed contract.

(Which is another issue -- I can make all the changes I want to my Verizon Wireless contract before signing it, but I doubt the retail clerk has the authority to accept those changes on behalf of Verizon.)
posted by Eyebrows McGee at 7:17 AM on April 1, 2010 [2 favorites]

Eyebrows McGee makes my point a lot better than I did.
posted by gjc at 7:21 AM on April 1, 2010

I don't read internet agreements and almost never read paper contracts with big companies where I know there is no point.

I represent tenants in New York City, and I did read my lease. It's the standard form lease used by most landlords in NYC. I chortled silently at all the unenforceable or plain illegal provisions and then signed it.
posted by Mavri at 7:33 AM on April 1, 2010 [1 favorite]

I changed a couple of things on my lease (it was drafted so that a failure on my part to shovel my sidewalk was a material breach). I'll read paper contracts, click through EULAs.
posted by craven_morhead at 8:12 AM on April 1, 2010

Good God, bad enough I have to read contracts like this for work, I'm sure as hell not reading them on my own time. Like the rest of humanity, I just click or sign and hope for the best.
posted by HotToddy at 8:50 AM on April 1, 2010 [1 favorite]

Law student here. After I took contracts I started reading through all the paper contracts/ privacy policies I sign. I never change anything, I just read them - mostly out of curiosity, but also because I'm now somewhat uncomfortable signing any contract unless I've read it first.

I never read software licenses, they're far too long.
posted by insectosaurus at 9:04 AM on April 1, 2010

Lawyer here. I don't read EULAs, online agreeements, and most other adhesion contracts. If the "deal" falls apart, there are likely to be little in terms of damages and there's not much to be done anyway (and, if the damages are big, I'd be challenging the validity of any limitations/waivers in the agreement). I'm not going to spend time reading boilerplate on my Adobe Acrobat download. (Exception -- Google actually has pretty good boilerplate, read it sometime).

Part of being a lawyer is realizing that some of the junk pushed at you via EULAs and adhesion contracts isn't going to stick if there were a real problem (and that some will). In short, it doesn't matter that much if you're not dealing with an important underlying service or good. If you were purchasing software for a large corporation, I imagine you'd be able to joust over the terms of the EULA, as the corporation would then care about your reservations.

I do review the terms of credit cards / phone contracts before I sign, but it's not as if I have any individual bargaining power with, say, AT&T, if I don't like the terms. I just like to know how badly I'll be screwed if I do have a claim, and who's performing the mandatory binding arbitration that I'm going to lose.
posted by seventyfour at 10:54 AM on April 1, 2010

One of my lecturers signed up as a member in-store at Blockbuster. He scratched out various bits he didn't like in the standard contract - mostly the bits about him having to pay charges for overdue rentals.

The clerk said nothing, accepted the contract back.

Lecturer rents a movie, holds onto it longer than he should. Takes it back, Blockbuster demand their fine. Point out their contractual right to their fine.

"Ah ha!" says lecturer. "Not in my contract."

Well, of course, he was right.

He's also now no longer allowed to be a Blockbuster member.


In short: I just sign the damn thing.
posted by djgh at 11:14 AM on April 1, 2010 [1 favorite]

I'm a law student and having just studied this, I still don't read them. Basically I learned that anything egregious won't stick in court, and that I'm willing to take the risk for everything else. I already expect to get screwed around by mandatory arbitration and forum selection clauses, so I basically just hope that nothing goes wrong where I'd need to use. Given the triviality of most of the computer applications I use, I doubt that I'd ever need to sue or that they would be suing me for anything. I also learned in torts that a lot of liability waivers for certain activities can easily be challenged in court. Several of my professors say, "even if you signed a contract, a contract can always be interpreted in different ways."
posted by ishotjr at 12:58 PM on April 1, 2010

*use=sue
posted by ishotjr at 12:58 PM on April 1, 2010

I just click "yes" without reading it, if it's for something relatively small, because I know I have no other option during the negotiation phase of a boilerplate contract.

Back when I was a more neurotic law student and that kind of stuff was interesting, I would read it through. These days, I might sometimes take a look out of idle professional interest to see what the arbitration clause says, if any, or if there's some crazy choice of law clause.

However, I think it's really important to distinguish here between your Blockbuster account agreement, where you really understand what you're purchasing, and things where you really DO need to read the fine print to figure out what you're getting yourself into. For example: buying insurance policies, warranties, and extended services plans; buying anything in installments; rent-to-own; agreeing to automatically renew a subscription; anything that renews monthly (like Netflix). In those cases, I absolutely look at the "fine print" to make sure I'm really buying what I think I'm buying. Once I know that, then I accept all their boilerplate without question.
posted by yarly at 1:15 PM on April 1, 2010 [1 favorite]

I don't read too many software licenses, but mostly because at home I use almost entirely free software that does not treat me like a criminal. I have read all of the GNU General Public License version 2. Unfortunately version 3 is much more complicated and less understandable to a lawyer who does not deal with that stuff.

I have read my entire apartment lease. It is a form contract and it is a joke. It has lots of stuff that does not even apply to this property.

I have read all of the agreements to my credit cards. I understand all of it, but I don't think most non-lawyers would understand it.

I read the entire car rental agreement, but not before I actually rent the car.

When I owned a car I read the entire insurance policy.

I read the licenses and contracts mostly because I am curious. Rarely do I change my behavior (e.g. scratching out stuff, or refusing to sign) as a result. There are exceptions: when I had car insurance, I learned a lot about it by reading the policy--for instance, it covered me no matter what car I was driving, and it covered others operating my vehicle with my permission. Also, generally I do not use proprietary software because I do not appreciate being treated like a criminal.
posted by massysett at 5:00 PM on April 1, 2010

Response by poster: Lots of interesting answers, everyone. I added the resolved tag since my curiosity has been quenched, though I'd have trouble picking any one of them as best answer since they're all valid.
posted by tomwheeler at 3:39 PM on April 2, 2010