I Will Not Tell You Where To Get Free Forms Online

“Greg,” a prospective client might ask me, “Where can I find a free online form to create my contract/document/will?”

“I don’t recommend doing that,” I would likely respond.

“But isn’t the democratization of the law something to celebrate?” they might retort. “Why are you against progress?”

Just to be clear, I’m not against the public having access to affordable and useful legal information (what do you think this blog is, after all?) and I’m very much in favor of people with genuine financial limitations having SOMETHING rather than nothing. So in a pinch, if you can’t afford a lawyer, a template document can be a useful tool.

But it’s true that I don’t like free online forms and don’t trust them. And if you’re not in dire financial straits, I don’t recommend using them. Why?

1. You don’t know what’s in them. The legalese in these forms can be confusing and because of that, the form might contain language that isn’t applicable to your situation, or worse, is actively harmful to your interests. I’ve seen first hand how badly this can go… several years ago I had a client who used an online form to license his work to another party. But because he selected the wrong form, he accidentally ended up selling the rights to his work outright and wasn’t able to get them back. There’s a reason lawyers spend so much time and money on schooling and then years working for other attorneys… to build up the knowledge base and skills needed to understand how to read and write these documents.

2. They’re not written for your needs. While forms can sometimes be a useful jumping off point, they can fail to address issues that are unique to your situation. Not all documents are made equal and you may require specific language in yours that a form can’t anticipate. And if you intend to use a contract template over and over again, there may be differences between your own clients that necessitate changes between contracts. For example, you may require different payment terms for different clients because one has proven to pay timely and reliably and another has proven to be delinquent. A form is designed to be a one-size fits all approach that may not be appropriate for you.

3. They can’t anticipate what you don’t know to look for. Let’s be honest. You don’t know what you don’t know. That’s why you hire a professional anytime something bad happens with your car, your house, your lower back, etc. Using a form that can’t anticipate your knowledge level means you could be leaving money on the table you didn’t know you had a right to; it could leave out important clauses that protect your interests and include clauses that harm you; it could result in ambiguous terms that neither party can understand; it could force you into arbitration when you’d rather use the court system. You may end up worse than you started because you didn’t know what to look for.

4. They may not be legally valid in your state. While many contract provisions are valid no matter where you live, some states have very specific rules regarding contract construction or formalities that a form may not pick up on. For example, if you are drafting a will, some states may require you to have it notarized and attested while others don’t. Some states may permit a contract to be modified while other states may forbid it. Failing to check your state's specific language requirements for documents may render them legally invalid.

I understand that attorneys are expensive and I also know there’s a subset of people who just want to DIY everything, but the benefit to having an attorney draft your document is that you’ll be able side-step these pitfalls while also having your needs met in real time. So no, I won’t tell you where to find free form templates online. Partly because I want you to pay me to do it for you, but largely because I want you to get it done right.

When Is It Okay to Write a Bad Review of a Client?

If I had a dime for every time a client complained to me that a customer violated a contract, well thankfully I’d only have like 50 cents. But still, it does happen. And when it does the client sometimes asks me if it’s okay to write a bad review online. That’s when I hesitate.

Whenever possible, You should never badmouth a party in public at all… yes even one who acts in bad faith. But if you’re absolutely going to do it no matter what, you should definitely wait until you’ve recouped what you’re owed (or as much of it as you can) from them and acquired a written history of their bad faith actions. Even then I’m hesitant to advise it. I’m a big fan of killing them with kindness no matter how badly you’re treated, because if you’re ever involved in a litigation, all of your communications will come out in discovery; you don’t want a judge or jury thinking YOU’RE the asshole in this transaction.

Most people don’t write bad reviews when they’re in a good frame of mind. They’re upset - understandably so - but not necessarily thinking clearly about the long-term effects of their actions. So it’s really easy for a person who has been harmed and is mad about it to overstep and accidentally defame the offending party. And the last thing you want is to be sued for defamation when you’re the victim.

There’s a fine line between warning people of bad faith operators and defamation. Defamation is defined as a statement to at least one other party about a person designed to ruin that person’s reputation. Usually the statement must also be false, but that is not a requirement in every state. When the defamatory statement is spoken, it is called slander, when it is written or otherwise recorded, it is called libel, but no matter what form it takes, the effect is the same. 

Your intent in making the statement also matters, as well as the defamed party’s public status… if the party is a public figure (politician, celebrity, etc), for example, your statement must be made with malicious intent, while a statement against a private figure must only be made with negligence. It’s also worth noting that simple name-calling is generally not considered defamation and statements of opinion might also not be considered defamatory (depending on context, of course) since they are harder to prove.

Here are some examples:

“Don’t work with John Smith Productions. They purposely stole my idea and cut me out of the production without paying me!” This is most likely defamation if the statement is false because it asserts as fact that the production company stole your work (on purpose, no less).

“I think John Smith Productions used my copyright without asking me.” Because this is a statement of opinion, it is less likely to be considered defamatory, though it wouldn’t necessarily prevent the production company from suing you anyway, especially if the statement is untrue.

“John Smith Productions is filled with conniving thieves and John Smith is the worst of them all!” Whether or not this is factually true, because this statement is merely name calling and doesn’t allege actual wrongdoing, this would not be considered defamatory.

What I tell people who are determined to write a bad review online is this: divorce yourself as much as you can from emotion. Statements of fact that you can actually back up with evidence are best. And of course, make sure that whatever you say is TRUE. When in doubt, be kind and truthful. Just because you were treated badly doesn’t mean you have to become the bad guy too.

Superman Can Wait: My Personal Experiences With Not Getting Agreements In Writing

You know, I say "get everything in writing" so often on this blog that I feel like I should have it pre-engraved on my headstone. I may be a broken record about it, but that's only because I've had plenty of first-hand experiences where that information would've come in handy. Here's one such experience that proved so formative, it helped shape my eventual journey from film to the law.

In the summer of 2002, I was a freshly minted RISD grad working in the vault of a major post-production house in New York City. I was hoping that after a few months organizing shelves of film and tape, they would call me up to the big leagues so I could learn to be an assistant editor or color correctionist. It wasn't my dream, but it was proximate enough to my dream that I stuck it out. In late August, my friend Maureen from college called and told me about a job opportunity she knew I couldn't pass up. After graduation, Maureen moved back home to Orange County where she was picking up odd jobs in the film business. A friend of hers - who I'll call Jenny because I can't remember her actual name - had been an assistant editor on Brett Ratner's films, and because Ratner was about to direct the new Superman movie, Jenny was slated to work on it. According to Maureen, Jenny could get me a job as a production assistant on the film, but I had to get my ass to L.A. pronto, since production was ramping up. This meant leaving my steady job and steady girlfriend (who eventually forgave me for moving 3000 miles away and married me) and taking a hell of a risk. Other than Maureen, I didn't know anyone in California. I had no money, no connections, nowhere to stay. I was going out on a limb, and trusting to fate, God, the universe, whatever, that it wouldn't snap beneath me.

With Maureen's help, I called Jenny who put me in touch with the production company. The woman I spoke to there was very encouraging and though she couldn't guarantee I'd be hired, she assured me that once I got to Los Angeles, I could come in for a proper interview and, most likely, get myself a set PA job. A month later, I was in the City of Angels, ready to make my dream come true.

"A job as a production assistant?" you might ask. "That was your dream?" Well, yes. Certainly I had no illusions about where a PA's job was on the totem pole. I knew the majority of my job would be making coffee runs to the nearest Starbucks. But this was a chance to work on a Superman film. SUPERMAN! For those who don't know me, Superman is my jam, particularly Christopher Reeve's iteration. Not enough to name my kid Kal-El or anything, but growing up, he meant a lot to me. He represented the ideal of heroism and goodness in a world that seemed continually bereft of both. He was what I wanted to be. It didn't matter that the script Ratner was working from (written by J.J. Abrams) had leaked online and been universally lambasted. It didn't matter that Ratner had only one good film under his belt and was widely considered a hack. It only mattered that it was Superman and I would be on the same set as him. How could this not all work out?

Oh my friends, how I'd love to tell you the gambit paid off. And if life were more like a movie, it would have. But within weeks of landing in L.A., Ratner was off the project and it reentered development hell. And all of a sudden, I had to make a life for myself in a strange place with no resources. You could say I acted recklessly, that I was dumb. And you'd be right to say that. A smarter man might have waited for an official job offer from Warner Bros, something in writing that I could hold in my hand on that plane ride across the country. But I was young and ambitious and excited to get started before there was even something to get started on. I upended my life without a guarantee of employment, only the vague promise of it.

But do you know how many artists do the very same thing? Sure, most don't move across the country for it, but it's so common for artists to get excited and start working on something before the deal is written down that it can take up anywhere from 50% to 75% of my law practice. So when I tell you to get everything in writing, I say it not just because it's smart business, not just because I see my clients going through it, but because I've lived it and know what can happen if you don't. Getting all your deals in writing protects your interests and holds everyone accountable. It should be an invaluable tool in your arsenal. So learn from my mistakes. If the job is important enough, it can wait until everything is written down. 

Why Wayne Is The Bad Guy In His Own Movie: Wayne's World And Morality Clauses

Wayne’s World premiered 25 years ago this month and remains a high water mark in modern comedy filmmaking, which is why I guess everyone’s been talking about it lately. I love the movie for a lot of reasons: it’s a fully realized concept, unlike a lot of SNL spinoff films, the comedy holds up on repeat viewings, and it clocks in at a lean hour and a half (I don’t know about you but I HATE the modern trend of bloated two and a half hour comedies… if you can’t say it in 90 minutes or less, you can’t say it).

To celebrate its silver anniversary, HBO has been playing it a bunch, so I’ve had the chance to rewatch it. And while the movie is good as ever, something stuck in my craw this time. Wayne (Mike Myers) is kind of the bad guy in his own film. And the skeezy TV producer Benjamin (Rob Lowe) who the film tells us is the villain is actually on the right side of things. And it’s all because of a contract dispute.

Great. Another movie ruined by being a lawyer.

So anyway, a big plot point in the film is Wayne’s reluctance to giving his show’s sponsor, Noah Vanderhoff (Brian Doyle Murray), a weekly guest spot/interview, a concession Wayne agreed to in his contract. Late in the second act, Benjamin and Wayne butt heads over this issue in what is probably one of the best modern comedy bits in recent history:

Eventually, Wayne agrees to conduct the interview with Vanderhoff, but not before writing offensive remarks on his interview cards, humiliating the sponsor on live TV.  Needless to say, Benjamin isn't happy.

Benjamin: You've publicly humiliated the sponsor.

Wayne: Yeah!

Benjamin: You're fired.

Wayne: Fired? For that? Sh'yeah! Right! I'm out of here, and I'm taking my show with me.

Benjamin: We own the show.

Wayne: Aw, bite me.

Dammit Wayne! This is why you always read your contracts! And not just play-read like you did in that scene where Garth talks about sentient baby tongues.

So there’s two things going on here. First, despite Wayne’s incredulity at losing the show, it’s fairly common for a television network to buy the rights to a show they’re producing. If the creator has a lot of clout, the network will sometimes agree to license the rights instead, allowing the creator to retain ownership. But that’s exceedingly rare these days. They’d rather own it outright so they can control the property and all its ancillary revenue streams like VOD, streaming, distribution, merchandising, and spinoffs. The way the film plays it, it feels unfair (and maybe it is - how would Wayne know that giving up the rights to Wayne’s World is typical? It certainly seems that Benjamin took advantage of his inexperience), but it’s the way the business works. Wayne and Garth would’ve been smart to get a lawyer to look over the contract before signing it.

The second is whether Wayne actually breached his contract, warranting his dismissal. This is a hard call since we haven’t read his contract, but we can make some educated guesses based on the average talent agreement. While Wayne fought Benjamin on the Vanderhoff thing, he did eventually relent and conduct the interview. No one can deny that. So what gave Benjamin cause to fire him? My guess is a morality clause.

A morality clause is a provision found in certain types of employment contracts that forbids the employee from engaging in activities that may reflect badly on the employer. A violation of the clause could result in the contract being terminated. In essence, if you act like a dick and embarrass your employer, you could get fired. Word on the street was that Brian Williams was nearly let go from NBC for lying about past news reports (before being shuffled over to MSNBC) due to a morality clause in his agreement. Allegedly, that clause stated:

“If artist commits any act or becomes involved in any situation, or occurrence, which brings artist into public disrepute, contempt, scandal or ridicule, or which justifiably shocks, insults or offends a significant portion of the community, or if publicity is given to any such conduct . . . company shall have the right to terminate.”

In the movie industry, clauses like these go way back to the 1920's and 30's when the studio system wanted to exert control over movie stars’ ability to socialize, marry, and have babies, any of which - in the wrong light - could bring shame to the studio and cause box office losses. How can that be legal, you might ask? Well, it is because most stuff you contract to do is legal (outside of sex and crime), although hard to enforce and very rarely litigated on. I ran a case law search and turned up almost nothing useful for this blog post.

Knowing what kind of person Wayne was, it was likely that Benjamin would’ve inserted a morality clause into his contract. Now I know I said Wayne was wrong up top, but I’m also not saying that Benjamin is secretly the protagonist of the film. He’s definitely a sleaze ball. He manipulated Vanderhoff into sponsoring a show he wasn’t interested in, he took advantage of Wayne’s naiveté about the TV industry and allowed him to sign a contract he didn’t fully understand, and even if he wasn’t explicitly making moves on Cassandra (Tia Carrere), he did know she was dating Wayne and was spending an awful lot of time cozying up to her. 

But when it comes to contracts, the law is pretty clear that Benjamin was in the right. Wayne bore the responsibility to read and understand his contract before he signed it. He then humiliated his bosses openly and brazenly. In other words, he made his choice. And it’s the choice of a new generation.

*Sips Pepsi*

Mmm! Delicious!

Making The Injured Party Whole Again: Punitive Damages in John Wick 2

[Warning: Major spoilers for John Wick: Chapter 2 ahead. Don’t read unless you’ve seen the movie or don’t care about being spoiled.]

At the end of John Wick: Chapter 2, the eponymous hero (Keanu Reeves) strolls into The Continental, the posh assassins-only hotel in downtown Manhattan, points a gun at bad guy Santino D’Antonio (Riccardo Scamarcio) and blows his head off despite the protestations of Winston (Ian McShane), the hotel’s proprietor. This is a violation of the most sacred rule in the underworld: The Continental is safe ground. No assassin may kill another on the premises without paying the ultimate price, a penalty we saw play out at the end of the first film. A severe punishment for the breach of a severe covenant. 

Soon after, Winston summons John to Central Park to mete out the same sentence. John is informed that he is "excommunicado," that he can no longer seek refuge at any Continental hotel, and a $14 million contract has been put on his life. Every professional killer in the world will now be looking for him. Out of respect, John is granted a one hour head start to run. But before leaving, John issues this chilling ultimatum:

"You tell them, whoever comes, I'll kill them. I'll kill them all."

Oh man, it’s so good I just got goosebumps typing that. If this film is any indication, John Wick: Chapter 3 promises to be a highly entertaining bloodbath.

Anyway, while the whole mishegas was playing, I was thinking about contract damages and whether John’s actions, bad as they were, deserved such serious punishment. I know it’s silly to presume traditional contract principles apply in an underworld populated by killers and other bad men, but the Wickverse is steeped in rules and formality and the films go to great lengths to showcase that. Everything is intricately choreographed. The system is built on profound order and relies on respect for that order. It doesn’t matter if you’re a lowly factotum or the famed Baba Yaga, the system comes before the man and everyone must pay what they owe. The contracts may not be written on paper, but they exist, and participation in this world requires that everyone meet their contractual obligation - we can call this one the Implied Covenant of Assassination Forbearance.

So humor me for a bit. John agreed to the rules of The Continental, then blatantly flouted them to exact his revenge on Santino. A kill order is placed on his life in order to appease the system. Is that bounty fair? It’s an important question to ask because fairness is at the heart of calculating damages in contract or tort law. How do we make the injured party whole again? How do we make it so that the injuries they sustain are offset as much as possible?

It can be done monetarily, of course. That’s the way we usually resolve contract disputes in the U.S. Compensatory Damages are financial in nature, the most common of which is what lawyers call Expectation Damages: the damages that are intended to cover what the injured party expected to receive from the contract. 

There are other types of monetary damages too. Consequential Damages, which are paid to the injured party for indirect damages other than contractual loss; Liquidation Damages, which is when the contract states that the breaching party will be liable for a specific amount of money; Nominal Damages, which are awarded when the injured plaintiff doesn't incur a monetary loss but the judge wants to show the winning party was in the right; and Restitution, which is an equitable remedy designed to prevent the breaching party from being unjustly enriched.

In this movie though, the damages aren’t monetary. While money - paid in the form of gold coins - is important to many operators in the Wickverse, to those in power, it's less important than honoring the system (the entire plot hinges on the importance of a blood oath John made). Instead, the damages to be paid = John’s death. But John’s death isn’t just about making The Continental whole again. It’s to send a message. John didn’t just kill some random person, after all; Santino was a member of the shadowy High Table, a cabal of crime lords alluded to throughout the film, but never seen. The High Table presides over the entire Wickverse, and everyone works for or with them to some degree. So the price on John’s head is also about removing a level of chaos that John has introduced into the system. To the powers that be, he must be punished severely enough that it deters future assassins from making the same choices. $14 million and every killer in the world gunning for you sounds like a pretty major deterrent. And to me that sounds an awful lot like Punitive Damages.

According to the New York State Court of Appeals, Punitive Damages are:

“available only in those limited circumstances where it is necessary to deter defendant and others like it from engaging in conduct that may be characterized as ‘gross’ and ‘morally reprehensible,’ and of ‘such wanton dishonesty as to imply a criminal indifference to civil obligations.’”

Punitive Damages come into play when Compensatory Damages aren't enough to make the injured party whole. They're also generally unavailable for contract disputes, but can be applied in contract situations where there’s an overlapping tort claim. So are there any tort claims that can piggyback onto the breach of contract claims The Continental and The High Table might have against John that could result in Punitive Damages? It’s a stretch, but I think there might be.

For The Continental, I would say their best tort claim against John would be Intentional Interference with a Prospective Economic Advantage. And while the elements of that claim differ by state, they generally are:

1. An economic relationship existing between the plaintiff and a third party containing the probability of future economic benefit to the plaintiff,

2. Knowledge by the defendant of the existence of the relationship, 

3. An intentional act on the part of the defendant designed to disrupt the relationship,

4. Actual disruption of the relationship, and

5. Damages to the plaintiff caused by the acts of the defendant.

While proving all these elements isn’t a slam-dunk, I think a good lawyer could make them work. John knew that The Continental was a safe haven for professional killers, traveling there throughout both films to derive its benefits and utilize its unique services (the Sommelier and Tailor sequences in the second film are incredible). John also demonstrates previously existing relationships with various hotel staffers, including friendly bonds with the managers of both the New York and Rome branches. John is also plainly aware that many other assassins use the hotel for the same reason he does: for peace of mind that they won’t get whacked while on the job, as he makes several allusions to this throughout the two films. In fact, in the first film, after he’s attacked in his room by Ms. Perkins, John is able to subdue her and instead of killing her, he asks a fellow assassin named Harry to watch her, then report her to the manager. This is all to say that John clearly knows the hotel derives an economic benefit between itself and its specific customer base. This takes care of the first two elements. 

The third element is John’s execution of Santino on Continental grounds, even as Winston tells him in the moment not to do it and what the repercussions would be if he did. The fourth and fifth elements are a bit harder to prove within the text of the film, since we don’t know if The Continental’s business suffers as a result of John’s actions. However, I think a reasonable argument can be made that business may be jeopardized. The whole benefit to staying at The Continental is that you can’t be killed there. It’s a safe place for everyone regardless of your criminal affiliation. If customers don’t feel safe there, they won’t use the hotel. If they don’t use the hotel, the hotel will lose money and cease to operate. You’d need some documentation to prove that assassins are now staying away from the hotel, but I think you could get there.

Because we've never seen The High Table and don't know the extent or type of its business, it's harder to say what economic harms they can pin on John Wick. I do think they could also benefit from an intentional interference claim though. What little we know of the group indicates that membership is incredibly coveted, and that each member controls certain geographic areas. The unexpected death of a member could result in lost profits from the various rackets they operate. 

Look, obviously no one is taking John to court (though it wouldn't surprise me if an underworld judicial system pops up in the sequel), so I appreciate you humoring me on this little journey. I'm always looking for the legal footholds to latch onto, even if it's not really applicable. That said, everyone in the Wickverse operates out of a certain sense of justice that isn’t wholly divorced from our own. The High Table and The Continental owners certainly feel that having John Wick killed for his transgression is the right thing to do. A fair thing to do. That's what will make them whole again. And if the punishment is harsh, well it's deservingly so. John, on the other hand, has very different ideas about what's fair. And when those two concepts of fairness go head to head in the sequel, I imagine it'll be a bloody good time.

Cinema Law: What are the Rights of a Documentary Subject?

This article originally appeared on Moviemaker.com on November 28, 2015. Republished here with permission.

Q: What rights does the subject of a documentary film have if the film falls apart?

As with all things in the law, the answer is: It depends. A documentary subject’s rights are dictated by two interrelated factors: the rights granted by contract with the filmmakers, and the rights granted by law.

Rights Granted by Contract

I feel like I say this so often I should trademark it: You need to put your agreement into writing prior to filming. Written contracts are crucial to any business relationship and are designed to ensure that participants know what they’re supposed to do and are held accountable if they don’t do it. When prospective clients approach me with legal problems, it’s a good bet they’re dealing with an issue that could’ve been avoided if they had put everything on paper first.

A good contract will explain what a documentary subject’s rights and duties, including what he or she can do if the film inexplicably halts production or falls apart in some other fashion. Will he or she have producing and creative input, or simply act as a conduit for storytelling? If it’s the former, will the subject have an ownership stake in the film? Can he or she take control of the production by buying up all the footage and/or hiring a new producing team to finish the film? If it’s the latter, can the subject withdraw the use of his or her likeness and story? What kind of oversight will the subject have to control how he or she is portrayed on camera?

Without a written contract, a lot of these questions are left up for grabs, and a subject’s ability to influence the outcome and direction of the film is limited.

Rights Granted by Law

Even without a written contract, a documentary subject still has options. The law provides a certain amount of built-in defenses to people who don’t want their identities misused in commercial settings. In particular, the law requires filmmakers to get their subjects’ permission to screen the finished product for an audience. Failure to do this means they could be in violation of their subjects’ publicity rights, and that could open them up to defamation and invasion of privacy claims.

Broadly speaking, publicity rights are a subject’s ability to control the commercial use of his or her name, image, likeness, story, or any other specific aspect of identity. The rights and remedies vary state by state, but they’re considered part of an overarching “right of privacy” that’s recognized in all 50 states. Seventeen states (most notably New York and California) have statutes preventing the unauthorized use of a person’s identity. The remaining states protect it through common law.

Smart filmmakers won’t leave this kind of thing to chance. They’ll acquire someone’s life rights in writing, not only to ensure the subject’s cooperation with the production, but also to appease insurance companies, financiers and studios. Insurance companies won’t provide the necessary Errors & Omission (E&O) coverage if there’s a strong likelihood the production was left open to liability by failing to secure these rights. Financiers won’t want to bankroll a film where the main subject’s story isn’t secured, and studios won’t buy a film if there’s a chance the film’s main subject could sue them for defamation and invasion of privacy.

If you’re the subject of a documentary film, this is your leverage over the filmmakers to ensure they don’t go forward with the film without your consent and participation. If the film is simply stalled, leveraging your publicity rights probably won’t get it back up and moving again, but you can at least make sure your story is safe and secure, ready to be granted to a filmmaker who is willing to put it all in writing. As it should be.