Indemnity We Trust

Until today, I was planning to start teaching cello this fall at a sort of high-end private music studio. Unlike the three teaching studios I’ve been associated with most recently (including Ingram & Brauns in Pleasanton, where I still teach), this new place wanted me to sign a contract.

They didn’t bother to tell me about the contract last November, when I initially agreed to teach there; they only emailed it to me two days before my first scheduled lesson. This was perhaps just a wee bit unprofessional on their part, especially considering that the student whose lesson I was scheduled to teach had already paid for a full month’s lessons on the mistaken assumption that the studio had a cello instructor on the roster; but never mind that.

The contract, while sensible enough for the most part, included this charming language: “Instructor shall indemnify, defend and hold harmless [the studio] from any and all damages, claims, liability, unpaid taxes, and expenses, including attorneys’ fees, arising from and related to Instructor’s obligations under this Agreement and any services provided by or activities of Instructor.”

This is pretty typical of contracts drawn up by lawyers. I’ve rejected contracts in the past because of indemnity clauses that the company in question wasn’t willing to strike. The trouble with an indemnity clause is that it asks me to push my life savings into the middle of the poker table and BET that nothing bad will happen. Since my life savings is also my retirement plan, you may imagine that such a wager might not seem entirely prudent to me.

Let’s suppose, for instance, that an insane parent decides to sue the studio because they feel (quite wrongly) that a representative of the studio promised them that little Bobby (who is tone-deaf, dyslexic, and has attention deficit issues) would be playing like Yo-Yo Ma within six months. Let’s assume, further, that the studio’s lawyer is busy planning a honeymoon in Antigua with his brand new trophy wife, and doesn’t want to be inconvenienced by taking this bogus suit to court. So the lawyer offers the insane parent a hundred thousand dollars to go away — and it’s my hundred thousand dollars. The contract would put me on the hook for that.

I pointed that out to the fellow who runs the studio. He didn’t even bother to respond. The clause has another sinister interpretation, however, which I just noticed. I didn’t point this one out to him, and perhaps it’s just as well that I didn’t. Let’s suppose that the studio were to fail to pay me money that they owed me for my teaching work. As I read it (and I’m not a lawyer), that clause would require me to hold the studio harmless from any claim that I might have against them arising from services provided by me. In other words, they wouldn’t have to pay me unless they felt like it.

Perhaps I’m being paranoid. But let’s put the shoe on the other foot for a moment, shall we? Let’s imagine a contract that had this language: “[The studio] shall indemnify, defend and hold harmless Instructor from any and all damages, claims, liability, unpaid taxes, and expenses, including attorneys’ fees, arising from and related to [the studio’s] obligations under this Agreement and any services provided by or activities of [the studio].”

Seems to me this clause would be exactly as fair (or unfair) as the other one. I wouldn’t expect the person offering me the contract to like it — but more to the point, would it make a scintilla of sense for each of us to indemnify the other? Not that I can see. That seems like a recipe for madness. I pay your lawyers and you pay mine? I don’t think so. Rather than having each of us indemnify the other, wouldn’t it make far more sense for each of us to indemnify ourselves?

Isn’t that what grown-ups do — take responsibility for their own business decisions rather than trying to palm off the risk on someone else?

My base position is that the person offering this contract (or, indeed, any contract) is my equal, not my superior. There is no reason why I should get the short end of the stick while the other person gets the long end. This kind of contract language might indicate that the person offering the contract feels that they’re in a superior position because they control a scarce resource that I need (not true in this case). Or it might just mean that the contract was drafted by a lawyer that they were paying.

It’s a lawyer’s job to try to stick it to the other guy. They’re required by the canon of ethics to try to stick it to the other guy — I think that’s probably taught in first-year law school.

A few days pass. I teach the student her first scheduled lesson, purely as a gesture of good will — no signed contract. After which I try to negotiate a better contract.

Though I try, against all odds, to preserve a sunny optimism with respect to human nature, I’m not even faintly surprised to learn that the individual offering this contract is unwilling to strike the indemnity clause. I can think of several reasons, none of them flattering, why he might be unwilling to negotiate the contract. Heck, he won’t even discuss the minor changes I requested, let alone strike the indemnity clause. Maybe he believes (perhaps only subconsciously) that I’m a peon while he’s the Big Cheese, that he’s doing me a favor by letting me teach at his wonderful studio. Maybe he has never negotiated a contract in his life, is scared to make a mistake, and doesn’t want to pay the lawyer another $500 to have my proposed changes checked out. Or maybe he did call the lawyer, and the lawyer said, “Don’t change the contract.”

Heck, the lawyer gets his slice either way. The lawyer doesn’t care whether the guy has a cello teacher for his studio, and the lawyer certainly doesn’t care whether this one little blond girl gets her cello lessons.

The reality is, I already have 18 or 20 students of my own, while this particular studio has, at the moment, a grand total of one young cellist in need of lessons. Seems to me I was the one offering to do them the favor, not the other way around. And taking a pay cut in order to do it, I might add.

Fortunately, I’m at a point in my life where I don’t have to play the indemnity game anymore. I can walk away. Not everyone is so lucky.

If I run into any of the other teachers who teach at that studio, though, I think I’m going to have to foment a little labor unrest. It’s up to them how they conduct their business; I can only make decisions for one person: me. But I feel I’d be doing a favor to my fellow peons — oops, I mean my fellow musicians — to share my opinion of this contract if the opportunity should present itself.

This entry was posted in cello, music, random musings, society & culture and tagged . Bookmark the permalink.

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