Lessons Learned from Litigators: How to Avoid Litigation When Doing a Deal


In this Publication:

- 2.1 Introduction 2–1

- 2.2 General Considerations About Contract Drafting 2–2

- § 2.2.1 Does the Contract Reflect a “Meeting of the Minds”? 2–2

- § 2.2.2 The Words of the Contract Must Precisely Reflect the Parties’ Intentions 2–3

- § 2.2.3 Avoid Ambiguity 2–4

- § 2.2.4 Take the Writing Seriously 2–5

- § 2.3 Specific Contract Provisions 2–6

- § 2.3.1 The Limitations of Merger Clauses 2–6

- § 2.3.2 Choice-of-Law Clauses Can Prove Critical 2–8

- § 2.3.3 All Forum Selection Clauses Are Not Created Equally 2–9

- § 2.3.4 Courts Will Enforce Jury Waiver Clauses 2–10

- § 2.3.5 Drafting Attorney Fee Provisions 2–11

- § 2.4 Other Considerations 2–12

- § 2.4.1 Contracts Need Not Be Written to Be Enforceable 2–12


- 2–ii 2nd Edition, 1st Supplement 2013

- § 2.4.2 Contractual Strangers Should Not Expect to Enforce Contract Rights 2–13

- § 2.4.3 The Battle of the Forms 2–14

- § 2.4.4 Be Wary of Quantum Meruit 2–15

- 2.4.5 A Note About Noncompetition Agreements 2–16

- § 2.5 Conclusion 2–18

- Excerpt from Introduction:

Since the authors have been practicing, they have observed that both law firms that represent businesses and general counsels’ offices within businesses are populated with lawyers who either draft the business contracts and assist in negotiating the deals or litigate (or oversee litigation) if the deals go sour. The ideal business lawyer is one who can take advantage of the skills and experience learned in both disciplines. That lawyer will craft better agreements, understand better the risks associated with accepting the terms proposed by the party on the other side of the transaction, and save his or her client a great deal of aggravation, expense, and lost opportunities by avoiding future litigation. This chapter attempts to take that vantage point—it provides guidance on drafting terms and conditions of a contract from the litigator’s perspective so that litigation can be avoided and better deals can be struck by both parties. The authors have focused on general contract principles and drafting guidelines, as well as specific terms and conditions that deserve special attention and care in the drafting and negotiation process.

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