First of all, nothing I’m about to tell you is legal advice. You should always consult an attorney because rules vary by jurisdiction. I’m speaking here as an editor about my own practice and about the kinds of pitfalls that arise when there isn’t a service agreement that covers all the bases. You and I do not have an attorney–client relationship.
The Purpose of a Contract – Prevent Conflict
Here’s a hypothetical: Your client has a manuscript that needs editing. Neither of you discuss what that means. The client expects you to perform certain tasks and you perform different ones. Or perhaps you agree on an hourly rate without giving a project estimate. You do a stellar job at the tasks you believe the client asked for and return the work with an invoice. Your client gets sticker shock and also finds that you haven’t done what they thought you were supposed to do.
That’s how two honest people end up in a disagreement—and maybe even in court.
Almost uniformly, professional editors and their clients are honest people. Professional editors want to do the best job they can: if we do, not only can we be proud of our work, but we might also get client referrals. Ripping off a client is like killing the goose that lays the golden eggs. And don’t think that other authors won’t find out. Just as editors belong to editing associations and private Facebook groups and talk about the scammers du jour, authors are members of similar associations and your reputation will eventually precede you.
Of course, there can be unpleasant surprises no matter how cautious the parties are. An author who doesn’t know how to pick an editor (or who offers an unsustainably low rate and gets what they pay for) might end up hiring someone with no training who thinks of editing as a “side-gig” for quick cash. An editor might hire a scammer or someone so abusive they have to invoke the termination clause. But generally, when there is a breakdown in the relationship, it is the result of confusion—of misaligned expectations. That’s the most important reason for a contract, and you need your contract to be as specific as possible.
If there is ambiguity, your client may feel that they have been cheated, or the editor may feel taken advantage of. If the editor drafts a service agreement and the client doesn’t like the scope of work or any other term, then the parties can negotiate rather than each party’s feeling shortchanged after the fact.
So a contract isn’t primarily a blunt instrument to be wielded in a courtroom. It’s document that helps prevent conflict between an editor and a client in the first place.
• Most people are honest (but not all – look out for red flags for ones who aren’t)
• Conflicts between editor and client usually arise from misaligned expectations
• Aligning expectations helps prevent conflicts between parties
• The contract’s most important job is to prevent conflicts in the first place
The Oral Contract – Almost as Bad as None at All
Having an oral agreement about a transaction with so many moving parts is a recipe for dysfunction. People’s memories fade, they only remember parts of the conversation, or they misunderstand each other. Further, in some jurisdictions, testimony about an oral contract might not even be admissible as such. What’s more, if the author hires an attorney to demand their money back (which I’ve seen happen to an editor here and there), or the editor tries to collect a delinquent fee, there is a swearing contest about the contents of the agreement itself.
This becomes especially problematic if the editor, like many of us, is booked out for weeks or months. So then the editor is turning their attention to the project when the conversation with the client might have happened weeks ago. Then the editor might conflate one conversation with another one. Personally, I’ve opened up a project eight weeks after an initial agreement and forgotten details of the scope of work, which is why I always review the service agreement before I begin work. I recommend adding that step to your workflow (which obviously starts with calendaring both the fee schedule and the due date).
• Oral contracts create more problems than they solve
• You might not even remember what you talked about by the time you start the project
The Email Chain as Contract
Can an email chain serve as a contract? Ask your local attorney to be sure, but it probably can. On the other hand, this forces both parties to print off an often long series of emails and reconstruct the agreement, and these things are almost all not specific enough. And even if it was all in there, why force any party to an agreement to do that mental labor just to figure out what their rights and responsibilities are? Can you imagine an irritated client thumbing through a 15-page email thread and some comments in a sample to try to figure out scope of work or what happens in the event of a delay? And what if you get a demand letter from an attorney? You’re stressed and flustered and trying to find terms in an email haystack.
• Email contracts are often incomplete
• Email contracts make people work too hard to find the terms
The Written Contract
To make sure that both parties understand their rights and responsibilities, your contract should be in writing and contained in a single document, which your client should initial on the bottom of each page, and it should be signed by both of you. And you need the whole thing back, not just the signature page. If you renegotiate terms with the client later, you can always draft a written addendum to the service agreement. Make sure that one’s signed too and incorporates the original agreement by reference. In most jurisdictions, evidence of verbal changes to a written contract aren’t admissible at all. And, of course, you’re back to the problem of trying to remember the contents of a discussion that may or may not remain fresh in the parties’ minds.
Scope of work, fee schedule, and deadline are just the beginning. As proof, go to your professional association and ask about the kinds of things that create disaster that don’t have anything to do with those things. To get a sense of what your contract needs, consult the book I coauthored with Dick Margulis, The Paper It’s Written On: Defining your relationship with an editing client (2018), which contains sample contracts written by both me and by Dick Margulis.
• Written contracts help the parties align expectations
• Written contracts keep all the terms in one place for reference
• Put any changes to the contract in writing too
• Consult The Paper It’s Written On: Defining your relationship with an editing client for draft contracts
• Don’t forget to have a lawyer look over your contract before there is a problem
Common Problems – Terminology
Many scope problems arise because of terminology issues. Even highly experienced editors can disagree about the level of editorial involvement expected when the scope of work is to “copyedit” it. This is true also about terms like line edit, stylistic edit, and structural edit. Then there is the amorphous proofread, which has a specific meaning in the publishing industry but is viewed by some as a very, very light edit for typos and punctuation errors and by others as correcting errors in spelling, grammar, usage, and punctuation. Setting out the specific tasks eliminates the argument about definitions.
• Even professional editors disagree about definitions
• To laypeople, proofreading might not mean proofreading
Common Problems – Specificity
How specific? Is the editor correcting spelling, grammar, usage, and punctuation? Finding typos? Fact-checking? Identifying plot holes? Moving sections from place to place to help the narrative? Deleting sections that detract from the narrative? What about flagging problematic language? Is the editor making suggestions about plot development or noting flaws in the argument of a journal article or academic book? What about tables and figures? Are you formatting tables? Editing captions? What about formatting references? (The ethics of editing the dissertations or theses of graduate students and what services editors should and shouldn’t offer to students is beyond the scope of this blog post.) What style guide will you be using? What flavor of English—American English, Canadian English, or British English? If there is a house style guide, is it comprehensive? And if it isn’t, what is the second style guide? Are you editing a Word document or getting notes in Pages? Or does the client think you’re doing a major structural edit on a PDF? (In my case, pigs will fly first.) These are just some elements of scope of work.
It’s also a reminder to editors to stay within the scope. For example, if an author doesn’t want the editor to change the writing and only wants the editor to correct spelling and punctuation, then the editor should not change any of the writing, even if they feel like they are doing the author a favor. They’re not. This also prevents the client, who may only be one part of a production team and a subordinate at that, from contacting you if they get further instructions and trying to add to the project.
• The editing tasks should be as specific as possible
• Set them out in bullet points
• Consider all the tasks you agree to perform on the manuscript and list them separately
• Making the scope of work clear prevents scope creep, a fertile ground for conflict
Common Problems – Second Rounds
I’ve also had clients be confused about whether I’m obligated to do a second round. In my case, I do a lot of line and structural editing and often recommend that clients add content to their work. If I do a second round, I have no way of knowing what the subsequent manuscript will look like and I tend to charge by the word, not by the hour. Thus, my service agreement holds that any additional work has to be the subject of a second service agreement.
• Consider whether your agreement includes a second round
• If your author will be making multiple changes and you charge by the word, a new contract is best
Common Problems – Nondisclosure Agreements and Noncompetition Clauses
Editors often are asked to sign the client’s contract when the client is a university or other business. Many of these contain nondisclosure agreements or noncompetition clauses. Be wary of nondisclosure agreements that are too broad. I refused to sign one from a business that, in summary, forced me to agree that any disclosure of the material from any source would be my fault. I have no control over what third parties do, so it was problematic. Further, it even prevented me from doing things like getting my computer fixed. It also prohibited me from doing any work in the same subject area as a safeguard against “using their ideas,” which was an oppressive term. I ended up declining the project even though I was in a dry spell because I didn’t want to put my entire practice at risk.
As for noncompetition agreements, people are fond of saying that courts don’t enforce them—or don’t enforce oppressive ones. But don’t agree to any term in a contract that you don’t intend to honor, especially because you can’t ever predict what any factfinder will do. Plus, one of the things that a court will consider is whether the signer knew what they were signing. An attorney who signs a contract is likely to lose that one. Further, since editors are supposed to be experts in the written word, an editor wouldn’t want to be in open court telling the judge that they didn’t know what they were signing or that they thought that one of the terms they agreed to was unenforceable.
• Nondisclosure agreements can be so broad you can’t get your computer fixed
• Nondisclosure agreements can force you to take responsibility for someone else’s misconduct
• Noncompetition clauses can stop you from working in your specialty
• Oppressively drafted nondisclosure and noncompetition clauses can prevent you from working with anyone else
• Don’t sign a contract you don’t intend to honor
Common Problems – Arbitration Agreements
Also avoid arbitration agreements. By signing an arbitration agreement, you are usually signing away your right to go to trial. First of all, arbitration is expensive, and second of all, you can’t appeal an adverse ruling. Often the rules of evidence don’t apply either, which means that if the client is accusing you of misconduct, they might not have to bring the witnesses and you can’t cross-examine them. They might also claim that there was further discussion and a deviation from the written agreement, which might or might not fly in an arbitration hearing even if such evidence is totally inadmissible in a trial court.
• Arbitration agreements can prevent you from appealing an adverse ruling
• Arbitration agreements might not require the rules of evidence
• Arbitration hearings are expensive
Common Problems – Deadlines
Even if you have payment terms and scope of work nailed down, if a client doesn’t give the editor the manuscript in time, it affects the deadline or the work product. We’ve all heard horror stories of editors having hard deadlines and the client’s giving them a manuscript at the eleventh hour. The editor is in a panic because they can’t finish in time and then they take heat because they didn’t. A late document turns into a barrier to the editor’s ability to perform. An editor needs a contract term to protect against this. It also helps the client focus on completing the manuscript in time for the editor to act.
A related problem is the corrupted file. Sometimes the author provides a file with corrupted sections (inadvertently) that make it impossible for the editor to open a file or edit certain sections of it. Occasionally such a document will crash the Word program. I added a term to my service agreement that obligates the client to substitute an identical document without the corrupted portion and changes the deadline in the event of a problem. I have had one manuscript like this.
Another issue that affects deadlines is version control. Sometimes an author wants to send the editor a subsequent draft while they’re working on the first one. We’ve all had version control nightmares and I’m allergic to them, so I don’t accept subsequent versions from clients once I start work. If I haven’t started work and they send me a subsequent version, then there is a new service agreement that supersedes the old one. Otherwise, just when an editor finishes a document, the client could potentially send the editor a whole new version, but the deadline looms.
• Deadlines for payment should be clear
• Deadlines for completion of the project should be clear
• Provide for a change in deadline for late manuscripts or payments
• Provide for change in deadline for corrupted files
• Be careful about version control
Enforcement Problems – Deadlines
People are human and things happen. The goal for both parties is to complete the project. If the client never pays at all, then don’t work for free. If they pay late (keeping in mind that this is an installment in advance), I do try to cut the client some slack.
Similarly, an editor may have a soft deadline and then have a medical emergency or a death in the family, and most clients are understanding. The real problem comes when a client hires an editor and there is no deadline, which can result in a situation where the project goes on forever. I’ve heard horror stories of editors sitting on manuscripts for over a year, not because the client hasn’t paid but because the editor has no fixed deadline. There’s no excuse for an editor’s forcing a client to sit on their hands when you have collected their money and have a completed manuscript. If you are booked out a year, then set a specific deadline a year hence. But don’t omit a deadline from your agreement and then drag the project out. That’s not fair to the client.
• Word your first reminder as if the client forgot – they probably did
• It’s not unreasonable to allow your client some wiggle room
• You may need to extend a deadline due to illness, death in the family, or similar
• Make sure that you set deadlines so projects don’t stay on your desk forever
Enforcement Problems – Payments
Let’s talk about enforcement of payments for a second. In terms of enforcement, I generally, like many professional editors, will only do work for independent authors if I’m paid in advance, but I usually take payments in installments. If an installment payment is late, I can stop work, although in practice I prefer to allow clients some wiggle room. On the other hand, with a contract, you don’t have to work if a client doesn’t pay. In practice, this means that if another project comes along and a client’s payment is late enough, you can just set the deadline out for the delinquent project. Or, if the situation is really aggravating, you can invoke your termination clause. For many editors, the real source of conflict is when a client wants their money back.
For late payments:
• Make sure your agreement allows you to stop work
• Make sure your agreement allows you to extend the deadline
Enforcement Problems – Demands for Refunds
If you accept payment by PayPal and the client decides to complain, PayPal will give them their money back and then make you fight over it. This happened to me six months after the fact, when the client made a mistake. He was horrified and corrected it (he meant to complain about a different vendor), and my fee was put right back, but again, this was six months later. That’s not a happy time bomb.
This kind of thing usually arises when the author comes back and says that their sister’s roommate’s cousin’s father-in-law is a retired English teacher and the retired English teacher says that the editor made mistakes. Often, these mistakes turned out to be introduced by the author after the fact or they weren’t mistakes; they were either style choices or the critic is complaining about a zombie rule that isn’t a rule. And, of course, the industry standard is for editors to catch 95% of errors, not all of them. We all aspire to catch them all, but editors aren’t machines. (For this reason, don’t sign a contract yourself that makes you promise to do flawless work, no matter how good you are.)
Sometimes, the editor does make a mistake. Leaving 5% of errors in because editors are humans does not rise to the level of a refund, but sometimes the editor makes an actual error. Sometimes the remedy is just to fix the mistake. Sometimes the remedy is a partial refund. Sometimes the editor eats the cost. What’s fair depends on the circumstances.
• PayPal refunds the client’s money and then makes you fight for it
• Clients may ask for refunds unreasonably
• Clients may ask for refunds if they think you made a mistake
• Make sure the mistake is a mistake
• If you make an error, offer to fix it
• If you make an error, consider whether a partial or full refund is fair
• The client doesn’t deserve a refund just because the work wasn’t perfect
Enforcement – Deciding to Sue
Should you take a client to court to enforce payment? That depends. Are you right that the client owes you money? Has the client talked about why they are upset? Is this something that could be fixed by correcting an error you made? Is the client’s reasoning contrived or should you give the client at least a partial refund due to some error on your part? Before you hire an attorney to write a letter to your client or threaten to sue them, first see if this isn’t a problem that can be solved without nuking your relationship with your client.
Remember that every request for payment should be in writing. I would begin by at least assuming that it was an oversight on the client’s part, because often it is. I wouldn’t begin with an accusation against someone who may have simply forgotten. Further, you don’t want to be accused of making threats in person or over the phone, so for your own protection, communicate only in writing.
• Make sure you’re entitled to the payment
• Ask for the payment in writing
Enforcement – Approaching the Client
Also remember that any communications between you and the client could be seen by a judge, commissioner, ombudsman, or reviewer. Or your colleagues. There is an old Bloom County comic strip by Berkeley Breathed in which unscrupulous lawyer Steve Dallas dictates a collection letter to his paralegal, the penguin Opus. He dictates, “Attention criminal pervert, where the hell is my dough, you twisted goon?” Opus writes, “We still await payment of your legal fee.”
On the topic of client communications, I recommend an excellent article by special education lawyer Pete Wright and advocate Janie Bowman called “Tactics & Strategy: The ‘Letter to the Stranger.’” Even though this article has to do with parent communications with school districts about special education students, it is directly applicable to almost any situation where a decision-maker has to decide something in which you have a stake.
My venue clause, incidentally, says I can file in small claims court in Arizona, where I live.
People often point out that if you win a judgment, then in one sense you have a document suitable for framing. You still have to collect. On the other hand, if you register the judgment, then it can affect the client’s credit rating, which may provide leverage. Personally, even with a relatively small fee, I’ve decided that I will litigate the issue, though this has not come up for me. Otherwise, why put a fee in the contract if you don’t intend to enforce that term?
Some editors say, “Well, I don’t like confrontation.” This tends to be especially true of women, many of whom have been raised to believe that any form of assertiveness is rude and that rudeness is the very worst thing, even worse than being ripped off. Some editors have announced their willingness to walk away from thousands of dollars rather than raise a fuss. But editors are business owners. If they had a set of braces put on their child and then didn’t pay the orthodontist, they would quickly learn that the orthodontist isn’t at all afraid of confrontation. Similarly, your electric company and the bank or landlord aren’t afraid of confrontation, either.
• Keep your communications professional
• Anything you write to a client could go viral on social media
• If your communications are professional, they probably won’t go viral
• If your communications are professional, your client’s sharing them might backfire for them
• Don’t write anything to a client that would upset the decision-maker
• If you win a judgment and record it, it might affect the client’s credit rating, which is leverage
• Even if you hate confrontation, the electric company and the grocery store don’t
How to Protect Yourself – Document Everything
Of course, inspect the signed service agreement to make sure that the client hasn’t made changes and to make sure that they didn’t just return the signature page (I ask my clients to initial the bottom of each page and I want the whole thing). I send the service agreement as a PDF. Also, save the client’s original manuscript and work off a copy. Retain both. That way, if a client comes back and said you missed something or there is an error, you can determine whether the error is yours. Furthermore, you want to be able to show your work in the event that you get a demand letter from an attorney or a complaint by a client.
Save any communications from your clients, too. The client may tell you that you did a great job on day 1 and then demand a refund on day 30. That’s subject matter. So is your request for payment and their reasons for delay. If they say they are paying late because they are running into money troubles and then come to court and say you messed up, that creates a credibility issue for them.
• Make sure you have a copy of the whole signed contract
• Keep the client’s manuscript and work off a copy
• Save both before and after
• Save communications from the client
Protecting Yourself – Shut Up
I’m sorry to be so blunt. But if you have a problem with a client and you post about it on social media, it may get back to the client. This is true even if you post in a private group. Some of those posts could be used against you, especially if you write in a derogatory fashion about the client (even if their behavior is atrocious). If you want advice from colleagues, make sure it’s in a private medium, like an email or private message, and make sure that it’s a colleague you trust. Even there, in writing, assume that the content could find its way into court somehow, so be discreet. I’m not telling you not to ask for help, especially since you might be asking a fellow editor to serve as an expert for you, but this is the kind of issue that you want to cover in your initial one-hour consultation with your local attorney.
In related, some editors post particularly challenging content they’re editing on social media for commiseration. Don’t do this. It’s one thing to post a sentence and ask a technical question about it. Make changes in it to prevent disclosing your client’s actual words. That’s what editing groups are for. But that’s different from posting your client’s work on social media for purposes of mockery. Many of us have edited particularly challenging content that has required a high degree of editorial involvement, but our clients have a right to be treated with respect. Also consider that someone in the private group might know someone who knows your client.
• Anything you post on social media about the dispute could be used against you
• Do not ever post derogatory statements about any client’s work on social media
• If you break these rules, it had better be for a good reason
• The reason is probably not good enough to break these rules
Consult an Attorney After You Write Your Contract
I recommend that editors draft a contract and then book a one-hour consultation with a local contracts attorney. Do this before you have a problem. And ask them questions about the small claims court process. You can consult an attorney about service by publication if your client lives out of state or overseas.
You might not need a lawyer if you go into small claims court, especially if you have your contract, the before manuscript, the after manuscript, the style guide, and a couple of articles or treatises about zombie rules or genre. So much the better if you can bring another editor in as an expert. But you absolutely need to discuss this sort of thing with a local attorney—again, before there is a problem, not when things start to go south with a particular client. And do not just print off this article and run with it, because each case is different, each jurisdiction is different, and a local attorney knows the local judges and their biases or temperaments.
WARNING: If you take someone to court or run into a problem with a client and just decide to rely on this article instead of spending a few hundred dollars to talk with a local attorney, things might not go well for you.
This talk of lawsuits may be putting the cart before the horse, but you are running a business and sometimes bad things happen to good people.
• Consult an attorney as soon as you draft your contract
• This post is not legal advice
• If you sense a serious client problem, see a lawyer ASAP
• Sometimes bad things happen to good people
Contracts are not instruments of doom, they are there to protect both parties and to align expectations. They prevent unpleasant surprises for both editors and clients and help lead to a happy result for both.