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Better contract drafting

Last reviewed May 2014
This page is a collection of links to some of my prior posts in this area. It’s a work in progress.

Some initial considerations

Ten Commandments of Contract Drafting

A contract can often be short and simple

Business planning for contract drafters: A methodical three-step approach

Letters of intent: their highest and best use is disavowing a binding contract

Three reasons to consider educating the other side’s negotiators about what to ask for in the contract

Whose contract form to use?

How to convince the other side to use your contract form

How to kill a big-company deal in the cradle: Refuse to use the other side’s contract form

How “hardball” should your contract draft be?

A balanced contract form can help get to signature faster

Leading off with a “hardball” contract form document might be a bad idea

Cramming down a killer contract might give you a wounded tiger to deal with later on

Another argument for using balanced contract forms (it has to do with role reversal)

How long should a contract be?

In praise of short, simple contract clauses

Contract simplification: Five specific techniques

A longer contract might get signed faster

In contracts, brevity is not always the highest virtue

Why you should draft contracts with long, run-on paragraphs (a satire)

Brevity in contracts: Lessons learned from writing legal briefs for litigation

Drafting – other general principles

Don’t count on renegotiating the terms of a master supply agreement at renewal time

If you can’t agree on an outcome, try agreeing on a process instead

Sometimes it’s better not to ask — as Conan O’Brien’s lawyers seemed to know, if the other side says no (or insists on the opposite of what you requested), you could end up worse off than if you’d remained silent

The virtues of using industry-standard terminology in contracts

Contracts should explain their terms as necessary

Writing a sample calculation into the contract itself might have highlighted this “absurd” clause in time to fix it

Why word processing has actually increased clients’ total cost of contract negotiation

Drafting – specific issues

In defining “affiliate,” too-loose a definition of “control” can get really expensive

It’s OK to say “represents and warrants” instead of just one or the other (but you might not want to)

Patent-infringement warranties should be negotiated very cautiously

Source code escrows usually aren’t worth the bother

Drafting contractual limitations of liability: Do it risk by risk, not one-size-fits-all

Limitations of liability: Try varying them with time, and/or with circumstances

Gross negligence — how to draft your contract to immunize you from liability (maybe)

Demanding the right to exercise tight control over the other party’s business can make you vicariously liable for its misdeeds — article

Can a contract be unilaterally amended? Then its arbitration clause might be unenforceable

When should a contract clause say “arising out of or relating to the Agreement”?

A cautionary tale: Don t say renew when you mean extend

Bare-bones contracting tips for software developers and other consultants

Declaring an emergency — Adapting an aviation concept for contract negotiations

Reseller agreements

Why a business seller might want to propose locking itself up with a non-competition covenant

Drafting for relationship management

Six contract clauses to help prevent lawsuits: Status-review conference calls; consultation requirements; escalation of disputes; early neutral evaluation; mini-trials to party executives; attorneys’ fees awards if settlement offer not beaten.

G-PP-AA: Five questions to ask at every business meeting you ever attend

Planning for success: Five aphorisms

An early-neutral-evaluation clause can help protect business relationships

Drafting for disputes

Consider spelling out exactly what is to be done to fix a breach

Keep individuals’ personal interests in mind — prevent them from blocking a reasonable settlement

Why the fraud claim is the lawyer’s weapon of choice in lawsuits over failed technology projects

Consider providing a written risk-factors disclosure sheet

Consider a no-reliance clause to help forestall claims of fraudulent misrepresentation

Clearly label demos and mock-ups as such

Drafting contracts after the Supreme Court’s Twombly and Iqbal decisions: Provide for extrajudicial discovery? (See also A better way of nipping business legal disputes in the bud: Cut the crap and just exchange the relevant information.)

Sneak some demonstrative aids into the jury room – by making them contract exhibits

Attorney’s-fees clauses automatically become “loser pays” under California law

Settlement incentive: Attorneys’ fee awarded against you if you fail to do better than an offer you rejected

Negotiations

Get contracts done faster: Start screen-sharing negotiations with Webcam video small talk

Note-taking in meetings and phone calls: Three easy habits your lawyer will love you for

Sometimes it’s better not to ask for the contract language you want

Back-and-forth negotiation emails can add up to a binding contract even without a signed final document, says UK court

When you can’t just say no in a contract: Three creative compromises

Five potential responses to a bigger company’s onerous contract demands

When a contract negotiation gets tough, try to make it about money, not about legal stuff

An oral understanding might not get you off the hook for a written contractual obligation

Responding to customer demands for extended payment terms

Best-efforts obligations: Six negotiation tips

Negotiating a customer’s code-of-conduct compliance request in a contract

Dilbert on sales-contract negotiations

Twelve legal “gotchas” for software sales people

RFP responses

Five legal points to include in an RFP response (though Procurement’s nose may get out of joint)

RFP provisions that hurt, not help, the customer

Maybe startups shouldn’t respond to RFPs

Final review

Signing a business contract? A final checklist of top things to watch out for — with true stories about why you should use it (e-book plug)

Signing a business contract? Be sure your company title is in your signature line

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