Independent editors and proofreaders sign contracts with multiple clients. But how many of us feel like they can be legal mysteries? Then you must listen to this podcast!
I opened a discussion at my “local” online editors club the other day about contracts, especially about understanding those that we’re asked to sign with client organizations. I talked about a super helpful podcast (Brionna Ned on The Deliberate Freelancer, hosted by Melanie Padgett Powers) and my experience negotiating away an indemnity clause.
Highlights from Brionna Ned’s talk
The episode I’m talking about is “Becoming Comfortable and Knowledgeable with Contracts and Other Legalese,” with lawyer Brionna Ned.
Ned runs a “legal education and consulting service for small business owners that provides you with the legal knowledge you need to create solid foundations in your business.” In the podcast, she talks about basics of contracts, why we need them, and some clauses that freelancers should understand.
I don’t listen to many podcasts but this one was worth a repeat listen. Here are my main takeaways from her talk (highlighted in blue).
Contracts set expectations.
A good contract is one where both parties understand the terms. It’s an opportunity to draw boundaries and establish a clear working relationship.
Karin Cather and Dick Margulis say this too in their book, The Paper It’s Written On, another great resource. Rather than thinking of a contract as a legal weapon, Cather and Margulis emphasize that the contract helps manage expectations, “which reduces the potential for conflict at all” (Cather and Margulis 2018, 5).
I admit I’m not sure whether my few private clients have ever read through my contract. But I can see how—especially for bigger projects where more is at stake—a good contract can provide assurance to both client and editor.
Know your risk tolerance.
It’s an individual decision whether you agree to indemnification clauses (and anything else) that are very unlikely to be invoked or prefer to get professional liability insurance so you’re protected against financial losses.
When you’re contracted to edit or proofread for an organization, you are likely to find an indemnification clause in their standard contract. The clause says that you (the freelancer/contractor) agree to pay for any bad consequences arising from your work. In other words, if the organization gets sued for content that you edited or proofread, you will pay for it.
Which makes no sense for editors or proofreaders: the core premise of editing is that the author and the publisher make the final decision of what gets published, not the editor. And no proofreader can guarantee that the final publication is 100% error-free.
But while it’s best to get the indemnification clause deleted if possible, Ned’s point is whether to agree to such clauses is up to you: it depends on your risk tolerance. Same goes for getting professional liability insurance (also called professional indemnity insurance), which could protect you “against financial loss as a result of malpractice, errors, and negligence.”
(For many editors working in not-so-usual locations—like global nomads or those of us who live in one country but edit for clients in another—professional liability insurance isn’t an option. They tend to be too expensive for the purpose or simply not available where we are.)
Don’t sign non-competes, however.
Non-competes are contracts where you agree that you will not work for or start a competitor business after you stop working for the current employer. Non-competes are seen as suppressing worker rights and, for example, in the US are enforceable only in certain states.
They don’t make sense for freelancers. On this, Ned was very clear: don’t sign them.
Don’t be afraid to negotiate.
If you’re uncomfortable with a clause, politely express your concerns and see if you can negotiate a revised agreement.
I had an unexpectedly good experience doing this: a potential client organization sent me its standard contract that included an indemnification clause. It made me uncomfortable enough (especially after listening to Ned’s podcast!) that I could not bring myself to sign it.
I politely shared my discomfort and explained how that it didn’t make sense for me to pay for problems arising from what the organization decided to publish. To my delight, the organization proposed an addendum that said that clause did not apply in this case. This organization is one of my favorite clients now!
“A bad actor is still a bad actor” (Brionna Ned’s words)
A contract probably won’t make a difference if the person is just … bad. Trust your instincts!
Having worked in countries where the written word is valued in different ways (I learned how painstakingly discussed and written agreements could be ignored in practice 😂), I always thought it optimistic to expect that one signed document would prevent a party from doing things their own way. So Ned’s final message made sense to me.
We can do our best to set expectations through contracts, but in the end, it can only do so much if the other party doesn’t care. We can only trust our instincts and walk away if something doesn’t feel right.
Resources
Check out the podcast and 2 other resources that I think are great.
- “Becoming Comfortable and Knowledgeable with Contracts and Other Legalese,” on the Deliberate Freelancer, hosted by Melanie Padgett Powers, with lawyer Brionna Ned.
- Policy Foundations for Editorial Professionals (CIEP webinar). Louise Harnby talks about essential policies editors and proofreaders should have and provides templates.
- The Paper It’s Written On (affiliate link), by Karin Cather and Dick Margulis, 2018. (If you prefer to avoid Amazon, here it is on ThriftBooks.) I built my contract template from their examples.
As always, it was great talking to my Cloud East colleagues and finding that many of us working with clients outside the countries we live in are resigned to similar limitations when it comes to protection.
Cover image by Edar from Pixabay.
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