Skip to main content
BlogBooksDocument AssemblyTechTipsWorkflow

A lawyer’s guide to drafting contracts that hold up in court

By October 7, 2015No Comments

Lawyers who draft written agreements have an incredibly challenging responsibility.

They need to use the right words, in the right way, to define the deal effectively. In most cases, that’s easier said than done.

Step #1: Consider What Might Go Wrong

No one wants the deal to fail, but that possibility has to be addressed. The draftsman has to consider what happens if the deal starts to wobble, or outright explode. The number of bad scenarios can be astronomically large. Here are some common questions that lawyers will consider:

  • What happens if one party fails to do something they’re required to do?
  • What happens if events outside either side’s control create unforeseen impediments to the deal getting done?
  • If a dispute arises that causes the deal to wobble or explode, what rules govern how the dispute gets salvaged—or litigated, if it can’t be saved?

Transactional lawyers are typically the ones who draft contracts. And the kinds of agreements they create can vary from a simple two page agreement to the incredibly complex hundred-page tome, complete with an intricate table of contents.

How complex the agreement gets depends on the type of deal, obviously.

I didn’t draft agreements when I was at the large law firm where I spent my first 20 years in practice. But I litigated a bunch of cases that involved complex contracts. And I learned something in working on those that many clients usually don’t grasp until it’s way too late.

Poorly Drafted Agreements Create Costly Problems

A poorly drafted agreement increases the likelihood that litigation will occur, and makes litigation vastly more expensive than it should be. This common problem can be avoided. Here’s my prescription:

Lawyers who draft agreements should develop a drafting system, one that ensures that all key provisions are actually included. But they also need to know how key provisions should be crafted. Creating a good drafting system is easier if you start with a solid guidebook.

Best Guide for Lawyers who Draft Contracts

Recently I found out about a new guidebook for transactional lawyers called Deal Struck, written by attorneys Ross Guberman and Gary Karl. The authors claim (as part of the book’s subtitle) that it contains the “world’s best drafting tips.”

That’s a cheeky proclamation, and one which triggered my instinctive lawyerly skepticism. But, after a thorough reading of Deal Struck, my skepticism was replaced by marvel and admiration.

Deal Struck is a book that can save lawyers a lot of agony, and misfortune. And, unlike most legal guidebooks, this one is easy to read and simple to use. Author Ross Guberman is as well-known as someone who can effectively explain the practical aspects of legal brief writing (perhaps you have a copy of his excellent book: Point Made).

Contains Exceptional Explanations

Just as with his prior books, Ross spent a lot of time thinking about how to present this important information in a clean, visually-appealing manner. But the real value of this book comes from its simple, practical, and powerful lessons.

For example, the book addresses:

  • The “core four” provisions common to all contracts (pg 15)
  • Why to avoid use of the phrase “shall have a right to” (pg 20)
  • When to use the word “might” instead of “may” (pg 20)
  • How to tweak the language of a jury waiver to make it more likely to be deemed “knowing and intentional.” (pg 60)
  • How to avoid or limit the effect of misrepresentations in an agreement (pg 30)
  • Why to avoid “and/or,” but how to use it properly if you believe you must (pg 44)
  • What word is more effective than the word “immediately” (pg 47)
  • How to write a proper definitions section, and where to put that provision in the agreement. (pg 55)
  • When to avoid the use of acronyms (pg 54)
  • How to effectively employ common boilerplate provisions (pg 56)
  • How to work from forms and templates, and what to be wary of when you do (pg 76)
  • 13 questions that should be considered in drafting any agreement (pg 74)

All of the tips in this book are well-explained, and are based on author Gary Karl’s many years of in-the-trenches experience as a top-notch transactional lawyer in New York.

Sure, other experienced lawyers have written books about how to draft legal agreements. But this book is different in an important respect.

This is a Book Lawyers Will Actually Use.

The book is well designed for daily use: 80 pages, and ring-bound (which allows you to easily plop it down next to your computer to refer to as you are drafting your agreements). Lawyers will appreciate the margin comments that flag potential risks (marked with red bullet points), or offer best practices (marked with green bullet points).

Armed with this book you can easily create any kind of contract, yet know that the contract is truly effective. This is a book that will make your life easier, and help you avoid major mishaps that lead to costly litigation. For those reason alone, this guidebook is worth hundreds, if not thousands, of dollars.

But obviously hardly anyone would buy the book if it sold for $1,000. Many smart lawyers would happily pay $100, but fortunately Ross and Gary have priced it ridiculously low, so that every lawyer (and law student) can afford a copy.

And it’s Ridiculously Affordable

The current price on Amazon is $39, which anyone can afford. Frankly, every lawyer should get this excellent guide to drafting contracts. Then they should review it before sitting down to draft any legal agreement.

Seriously. It’s that good.

But don’t take my word for it. You can download a sample PDF with excerpt that will demonstrate the book’s power firsthand.

Or you can just visit the Amazon page and order it now.

Screen-Shot-2014-11-28-at-12.01.24-PM