Welcome to the 21st Century. Where practicing law needs us to wear the clothes of computers and the Internet. And where litigation is as expensive as ever. Attorney expenses running $10,000 a month are not uncommon in a hotly objected to breach of contract suit. With every word, phrase and sentence carrying the potential for winning or losing, the stakes are high. Easy reasoning, therefore, directs us to mindful and thoughtful drafting.
Preparing agreements is in fact among the basic pleasures of practicing law. Just 3 years back at this Convention, I provided 50 ideas for contract writing. This article updates those ideas in the context of our brand-new tools and abilities. Following these ideas could lead to your writing a contract so clear no one will want to prosecute it, conserving your client from the trials and adversities of litigation, really a great factor to compose the agreement that stays out of court.
These suggestions apply to composing all type of agreements: workplace leases, realty agreements, sales agreements, employment agreement, equipment leases, prenuptial agreements. They even use to stipulations and settlements in lawsuits, where you want an agreement so clear that it prevents future lawsuits. Wherever clarity and simplicity are very important, these tips will assist you there. The Appendix provides a few sample types to show these tips.
Before You Write the First Word
u2022 Ask your client to note the deal points. This can be in the form of a list, overview or narrative. Doing this will assist the client concentrate on the regards to the contract.
u2022 Engage your customer in “what if” situations. A good agreement will expect lots of possible factual scenarios and reveal the parties’ understanding in case those truths emerge. Speaking with your customer about this will create numerous concerns you may not otherwise consider.
u2022 Ask your customer for a similar contract. Frequently, clients have had comparable deals in the previous or they have access to agreements for comparable transactions.
u2022 Browse your workplace computer or the Web for a similar form. Numerous times you can find a similar type on your computer system. It may be one you prepared for another customer or one you negotiated with another legal representative. Simply keep in mind to find and change the old customer’s name. Beginning with a current form conserves time and avoids the errors of typing. Here are some Web websites where you can find forms:
u2022 Obtain kinds in books or CD-ROM. Typical forms of contracts can be discovered in kind books, such as West’s Legal Kinds (a nationwide set) and Florida Jur Forms, in addition to in treatises and Florida Bar CLE publications. These can be utilized as the starting point for preparing the contract or as lists of typical arrangements and wording to include in the contract. Lots of writings and form books now include kinds on disk or CD-ROM.
u2022 Don’t let your client sign a letter of intent without this wording. In some cases customers are anxious to sign something to show great faith before the contract is prepared. An appropriately worded letter of intent is helpful at such times. Just be sure that the letter of intent clearly states that it is not a contract, but that it is merely a summary of possible terms for conversation functions. See Appendix C.
Writing that First Word
u2022 Start with a basic, generic contract kind. The form in Appendix A is such a form. It supplies a solid starting point for the structure of the agreement. Like a home, a contract needs to have a good, strong foundation.
u2022 State the right legal names of the parties in the first paragraph. As obvious as this is, it is among the most common problems in contracts. For individuals, consist of complete very first and last name, and middle initials if available, and other determining details, if suitable, such as Jr., M.D., etc. For corporations, talk to the Secretary of State where integrated. (In Florida, call the Florida Department of Corporations at 904-488-9000 or search its database from its site at xx or for other states see the list of Secretaries of State websites.
u2022 Recognize the parties by labels. Offering each celebration a label in the very first paragraph will make the agreement easier to read. James W. Martin would be nicknamed “Martin.”
u2022 Beware when using legal terms for labels. Do not utilize “Professional” as a nickname unless that party is lawfully a professional. Do not use “Representative” unless you intend for that celebration to be an agent, and if you do, then you better specify the scope of authority and other company concerns to avoid future disagreements.
u2022 Include a blank for the date in the very first paragraph. Putting the date in the very first paragraph makes it simple to discover after the contract is signed. It likewise makes it simple to describe the contract in other files in an exact way, such as the “December 20, 2000, Agreement for Sale of Realty.”
u2022 Include recitals to provide background. Recitals are the “whereas” clauses that precede the body of a contract. They supply a basic way to bring the contract’s reader (celebration, judge or jury) up to speed on what the agreement has to do with, who the celebrations are, why they are signing a contract, and so on. The very first paragraph in the body of the agreement can include the recitals by reference and state that they are real and correct. This will avoid a later argument as to whether the recitals are a legally binding part of the contract.
u2022 Lay out the agreement by drawing up and highlighting paragraph headings in their rational order. The paragraphs must stream in logical, organized style. It is not needed to compose them simultaneously; you can write them as you believe of them. Attempt to group related principles in the exact same paragraphs or in adjacent paragraphs. For instance, write an employment agreement’s initial paragraph headings like this:
u2022 Complete each paragraph by writing the contract terms that apply to that paragraph. This is easy. You discovered this in grade school. Simply discuss in words what the celebrations agree to do or not do paragraph by paragraph.
u2022 Keep a pad at hand to keep in mind provisions to include. It is typical to think of extra stipulations, wording and concerns while writing an agreement. Write these down on a pad as you compose; they are easily forgotten. Keep your customer’s overview and other kinds in front of you as you compose, and examine off products as you compose them.
u2022 Repeat yourself just when repeating is essential to improve clearness. Uncertainty is developed by saying the very same thing more than as soon as; it is nearly difficult to state it two times without producing ambiguity. Only if the principle is a tough one should you compose it in more than one way. In addition, if you utilize an example to clarify a hard principle or formula, make certain that all possible significances are considered and that the example is precise and constant with the principle as worded.
What to Look out for When Writing
u2022 Title it “Contract.” Do not leave this one to possibility. If your client desires a contract, call it an agreement. A judge now sitting on the federal bench as soon as ruled that a file entitled “Proposition” was not a contract even though signed by both parties. The lesson learned is, “State what you indicate.” If you intend the document to be a lawfully binding agreement, utilize the word “Contract” in the title.
u2022 Write in short sentences. Brief sentences are simpler to understand than long ones.
u2022 Write in active tense, instead of passive. Active tense sentences are much shorter and use words more effectively, and their significance is more evident. Example of active: “Sellers will sell the Property to Buyer.” Example of passive: “The Property shall be sold to Buyer by Seller.”
u2022 Do not use the word “biweekly.” It has 2 meanings: two times a week and every other week. The same uses to “bimonthly.” Rather, write “every other week” or “two times a week.”
u2022 Do not say things like “active termites and organisms”. Prevent obscurity by writing either “active termites and active organisms” or “organisms and active termites.” When including a modifier like “active” before a substance of nouns like “termites and organisms”, make sure to clarify whether you intend the modifier to apply to both nouns or just the first one. If you intend it to use to both, utilize parallel building and construction and write the modifier in front of each noun. If you intend it to use to simply one noun, place that one noun at the end of the list and the modifier directly in front of it.
u2022 Do not state “Lessor” and “Lessee.” These are bad nicknames for a lease since they are easily reversed or mistyped. Use “Landlord” and “Occupant” rather. The very same applies to lienor and lienee, mortgagor and mortgagee, grantor and beneficiary, licensor and licensee, party A and party B. This is where you can utilize your creativity to come up with a different label for a celebration, as long as you use it consistently throughout the contract.
u2022 Look out when utilizing “herein.” Does “wherever used herein” mean throughout the agreement or throughout the paragraph?
u2022 Write numbers as both words and numerals: 10 (10 ). This will lower the opportunity for errors.
u2022 When you compose “consisting of” think about adding “but not limited to.” Unless you intend the list to be all-encompassing, you had better clarify your intent that it is merely an example.
u2022 Do not count on the guidelines of grammar. The rules of grammar that you learned in school are not universal. The judge or jury translating the meaning of your contract might have learned different guidelines. Compose the agreement so that no matter what rules they found out, the contract is clear and unambiguous. Follow this test for clear writing: Remove all durations and commas, then read it. Picking the right words and putting them in the right place makes the composing clear without punctuation.
u2022 Don’t be creative with words. Contract writing is not innovative writing and is not indicated to provoke reflective ideas or debates about subtleties of meaning. Contract writing is clear, direct and precise. Therefore, use common words and common meanings. Write for the commoner and the common woman.
u2022 Correspond in using words. If you describe the subject matter of a sales agreement as “items” use that term throughout the contract; do not alternately call them “products” and “products.” Maintaining consistency is more crucial than preventing repetition. Do not stress about putting the reader to sleep; fret about the opposing attorney a year from now searching for uncertainties to get your contract into court.
u2022 Correspond in grammar and punctuation. The guidelines of grammar and punctuation you found out may vary from others, however you had much better be constant in your use of them. Understand such things as where you put ending quote marks, whether you put commas after years and states, and comparable variations in design.
u2022 Consider consisting of option of law, place choice, and attorneys fee clauses. If your agreement gets litigated, you might also give your client some “ammunition” for the battle. Examples of these clauses appear in Appendices A and C.
Write for the Judge and Jury
u2022 Presume the reader is a well-informed layman. If your writing is so clear that a layperson could understand it, then it is less most likely it will end up in court.
u2022 Define a word by capitalizing it and putting it in quotes. Capitalizing a word shows that you intend it to have an unique significance. The following are 2 sample provisions for specifying terms:
u2022 Wherever used in this agreement, the word “Item” will suggest the products that Purchaser has agreed to buy from Seller under this contract.
u2022 Buyer hereby agrees to purchase from Seller ten (10) frying pans, hereinafter called the “Product.”
u2022 Specify words when initially used. Instead of composing an area of meanings at the start or end of a contract, consider defining terms and principles as they initially appear in the agreement. This will make it easier for the reader to follow.
u2022 Explain technical terms and concepts. Keep in mind that the parties might comprehend technical lingo, but the judge and jury who analyze and apply the agreement do not. For that reason, explain the contract’s terms and ideas within the contract itself. Let the agreement speak for itself from within its four corners.
Keep Your Customer Informed While You Write
u2022 All agreements need to feature a cover letter. This provides you a location to instruct your customer on how to use and sign the agreement.
u2022 Inform your customer the concepts that come as you write. Lots of ideas will strike you as you write: things that might fail with the offer, things that may take place in the future, things that occurred in the past, methods to structure things better. Write these in your letter to the client.
u2022 Notify your client of the risks. Writing a letter to the client as you write the agreement is the ideal way to inform the client of the risks and benefits of participating in the contract. Frequently, problems do not emerge till time is invested trying to word a contract.
What To Do After the Initial Draft Is Composed
u2022 Check spelling, paragraph numbering, and cross referrals both by hand and with your word processing program’s spelling and grammar checker. This practically goes without saying today, especially since Microsoft Word now inspects your spelling and grammar as you type. (Regrettably it likewise alters “per stirpes” to “per foolish” if you fail to watch it closely.) And now there are even computer programs that inspect contract files for undefined terms. DealProof is packaged with Corel WordPerfect for law offices, and DocProofReader is readily available for download for MS Word 97 and 2000.
u2022 Let your secretary or paralegal read it. Not only will your staff regularly find spelling and grammar errors missed out on by your word processing program’s spell checker, but they will discover inconsistencies and confusing areas that you missed when drafting.
u2022 Stamp “Draft # 1u00a06/22/ 2000” on it. This might be the very first of numerous drafts, so prevent confusion early by numbering and dating all drafts at the top of the first page. It is likewise a good concept to compose “DRAFT” throughout the face of each page to preclude the possibility of an impatient customer signing a draft rather than awaiting the last version.
u2022 Let your customer read it. Letting the customer in on reading the first draft guarantees that your drafting will stay in tune with the client’s desires.
u2022 Save the drafts as numerous files on your computer. If you save the initial draft on your computer system as 2 files, you will have one file recognized as the initial draft and the other identified as the existing version. This can be done by naming the existing variation “agreement” and the first draft as “contract.d1.” Then, subsequent versions can be named “contract.d2”, “contract.d3,” and so on, where the “d” in the extension shows draft. (Of course, if you’re not using WordPerfect 5.1 for DOS, as I do, you can use long file names to show the contract name, draft number and draft date, such as “Agreement Smith Jones draft 2 dtd 6 22 2000.”
u2022 Compare the present version to prior variations. If you save draft variations, it is really simple to compare one version to another utilizing the word processor’s compare function or using the CompareRite computer program. When you compare “contract.d1” to “contract.d2”, save the comparison as “contract.c21” and print it to reveal the customer what changes were made.
How to Print and Sign the Last Draft
u2022 Print the contract on 24-pound bond paper instead of 20-pound copier paper. Using a heavy bond paper will make it easy to tell the initial contract from copies. It will also last longer.
u2022 Print on pages utilizing the exact same paper, and if pages are changed, reprint the file utilizing the same paper. This will prevent an argument that pages were replaced after the agreement was signed.
u2022 Indication the agreement in blue ink, not black ink. This, too, will make it easier to distinguish the signed original contract from photocopies.
u2022 Preliminary every page of the contract. Having each party preliminary each page of the agreement will make it less most likely that anybody might claim a page was changed after the agreement was signed.
u2022 Recognize the parties and witnesses who sign by supplying blank lines listed below their signature lines for their printed names and addresses. This will make it simpler to find the witnesses if the agreement is contested. And remember to consist of 2 witnesses for business leases.
u2022 Make certain that business officers include their titles, the corporation name and the word “as.” Failure to do this can lead to individual liability of the officer. The correct method to check in a representative capability is as follows:
ABC Corporation, a Florida corporation
If these 50 tips do not keep your agreements out of court, attempt mastering Strunk