Yes, drafting a contract takes a lot of work. But it generally takes less time to draft a contract document that advances your client’s interests than it does to modify another party’s document to achieve that result. So whenever you have the opportunity to be the drafter, take it—and follow these four steps to drafting a contract to your client’s benefit.
- Draft to your client’s favor, but don’t push it. The contract should accurately state the contracting parties’ business agreement, but as the drafting attorney, you’re in a position to prepare the first draft to favor your client on major points not previously addressed by the parties. But don’t overplay your hand; it can be obvious and create ill will.
- Consider the contract’s expected audience. The contract document may be technically perfect, but if the parties who will sign it and the others who may be affected by it can’t understand or apply its terms, you’ll have failed in your task. Use plain English to be sure that the contract you’re writing is in a language that the parties can read and understand.
- Make sure the contract is consistent and complete. Few attorneys sit down at a blank computer screen to draft a contract document from scratch. Most attorneys refer to form documents from their files and make changes necessary to create a new document that reflects the parties’ current agreement. Other attorneys adopt a “cut and paste” approach, adding language from a variety of samples or sources. If the document you’re drafting is derived from several different sources, you must diligently edit it for consistency and completeness. And verify that defined terms are used consistently and correctly.
- Start with a well-written contract. It’s easier to negotiate a good contract document when the first draft is comprehensive and well written. If you prepare a disorganized, poorly written first draft, the other parties will waste time struggling to understand it instead of working out the terms of the transaction. If the parties spend too much time on ministerial issues, they may overlook major issues. Also, the final product may be choppy and confusing because of the attorneys’ different writing styles and attempts to close gaps in the logical flow of the document.
For practical guidance on all the mechanics of contract drafting, turn to CEB’s Drafting Business Contracts: Principles, Techniques and Forms, chapter 1.
Other CEBblog™ posts you may find interesting:
- Illegal Contracts Are Enforceable. Sometimes.
- The Contract that Binds: Your Fee Agreement
- More Hiring Means More Employment Contracts: 4 Reasons to Use Them
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