Invite to the 21st Century. Where practicing law requires us to put on the attire of computers and the Internet. And where litigation is as pricey as ever. Attorney costs running $10,000 a month are not uncommon in a fiercely contested breach of agreement claim. With every word, expression and sentence bring the potential for winning or losing, the stakes are high. Basic reasoning, therefore, directs us to mindful and thoughtful drafting.
Preparing contracts is actually among the basic satisfaction of practicing law. Just 3 years back at this Convention, I presented 50 pointers for agreement writing. This article updates those suggestions in the context of our brand-new tools and capabilities. Following these suggestions could result in your writing an agreement so clear no one will want to prosecute it, conserving your client from the trials and tribulations of lawsuits, truly a great factor to compose the contract that avoids of court.
These pointers use to composing all sort of contracts: office leases, property agreements, sales agreements, employment agreements, equipment leases, prenuptial contracts. They even use to stipulations and settlements in lawsuits, where you want an agreement so clear that it prevents future litigation. Wherever clarity and simpleness are necessary, these suggestions will direct you there. The Appendix supplies a few sample forms to illustrate these tips.
Before You Compose the First Word
u2022 Ask your client to note the offer points. This can be in the type of a list, summary or narrative. Doing this will help the customer focus on the terms of the contract.
u2022 Engage your customer in “what if” scenarios. A good contract will prepare for numerous possible factual scenarios and reveal the celebrations’ understanding in case those facts develop. Speaking with your customer about this will create lots of concerns you may not otherwise think about.
u2022 Ask your customer for a similar contract. Frequently, customers have had comparable transactions in the previous or they have access to contracts for comparable transactions.
u2022 Search your office computer system or the Internet for a similar type. Numerous times you can discover a similar kind on your computer. It may be one you prepared for another customer or one you negotiated with another attorney. Simply keep in mind to discover and replace the old client’s name. Starting with a current form saves 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. Normal forms of contracts can be discovered in form books, such as West’s Legal Forms (an across the country set) and Florida Jur Forms, as well as in treatises and Florida Bar CLE publications. These can be utilized as the starting point for preparing the agreement or as lists of normal arrangements and phrasing to include in the contract. Numerous writings and form books now come with forms on disk or CD-ROM.
u2022 Don’t let your customer sign a letter of intent without this phrasing. Often customers are nervous to sign something to show good faith prior to the agreement is prepared. A properly 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 simply a summary of possible terms for discussion purposes. See Appendix C.
Writing that First Word
u2022 Start with a simple, generic contract kind. The form in Appendix A is such a form. It supplies a strong beginning point for the structure of the contract. Like a home, an agreement must have a good, solid foundation.
u2022 State the proper legal names of the celebrations in the very first paragraph. As apparent as this is, it is among the most common issues in contracts. For people, consist of complete first and last name, and middle initials if available, and other identifying info, if appropriate, such as Jr., M.D., and so on. For corporations, check with the Secretary of State where integrated. (In Florida, call the Florida Department of Corporations at 904-488-9000 or search its database from its website at xx or for other states see the list of Secretaries of State websites.
u2022 Determine the parties by nicknames. Offering each party a nickname in the very first paragraph will make the contract easier to read. James W. Martin would be nicknamed “Martin.”
u2022 Take care when using legal terms for nicknames. Do not use “Professional” as a nickname unless that party is legally a professional. Do not use “Representative” unless you mean for that celebration to be a representative, and if you do, then you better specify the scope of authority and other agency problems to avoid future disagreements.
u2022 Include a blank for the date in the very first paragraph. Putting the date in the first paragraph makes it easy to find after the agreement is signed. It also makes it simple to describe the contract in other files in an exact way, such as the “December 20, 2000, Agreement for Sale of Property.”
u2022 Include recitals to supply background. Recitals are the “whereas” clauses that precede the body of a contract. They supply a simple method to bring the contract’s reader (celebration, judge or jury) up to speed on what the agreement has to do with, who the parties are, why they are signing a contract, etc. The very first paragraph in the body of the agreement can incorporate the recitals by recommendation and state that they hold true and proper. This will prevent a later argument regarding whether or not the recitals are a legally binding part of the contract.
u2022 Describe the agreement by drawing up and highlighting paragraph headings in their rational order. The paragraphs ought to stream in sensible, orderly fashion. It is not essential to write them at one time; you can compose them as you believe of them. Attempt to group related ideas in the exact same paragraphs or in adjacent paragraphs. For instance, write an employment contract’s initial paragraph headings like this:
u2022 Total each paragraph by writing the agreement terms that apply to that paragraph. This is easy. You learned this in grade school. Simply discuss in words what the parties agree to do or not do paragraph by paragraph.
u2022 Keep a pad at hand to bear in mind clauses to include. It is normal to consider extra stipulations, phrasing and issues while composing a contract. Jot these down on a pad as you write; they are quickly forgotten. Keep your client’s summary and other types in front of you as you write, and inspect off products as you write them.
u2022 Repeat yourself only when repeating is needed to enhance clearness. Obscurity is developed by saying the very same thing more than once; it is almost difficult to say it two times without producing ambiguity. Just if the concept is a hard one need to you write it in more than one way. In addition, if you utilize an example to clarify a tough concept or formula, be sure that all possible significances are considered and that the example is accurate and constant with the idea as worded.
What to See Out for When Writing
u2022 Title it “Contract.” Do not leave this one to opportunity. If your client wants a contract, call it an agreement. A judge now resting on the federal bench as soon as ruled that a document entitled “Proposition” was not a contract although signed by both parties. The lesson learned is, “Say what you indicate.” If you mean the file to be a legally binding contract, use the word “Agreement” in the title.
u2022 Write in brief sentences. Short sentences are simpler to understand than long ones.
u2022 Write in active tense, rather than passive. Active tense sentences are much shorter and utilize words more efficiently, and their significance is more evident. Example of active: “Sellers shall offer the Property to Buyer.” Example of passive: “The Property shall be offered to Buyer by Seller.”
u2022 Do not use the word “biweekly.” It has two significances: two times a week and every other week. The very same applies to “bimonthly.” Rather, write “every other week” or “twice a week.”
u2022 Don’t say things like “active termites and organisms”. Avoid uncertainty by writing either “active termites and active organisms” or “organisms and active termites.” When adding a modifier like “active” prior to a substance of nouns like “termites and organisms”, make certain to clarify whether you plan the modifier to use to both nouns or simply the first one. If you intend it to apply to both, utilize parallel construction and write the modifier in front of each noun. If you mean 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 Don’t say “Lessor” and “Lessee.” These are bad labels for a lease due to the fact that they are easily reversed or mistyped. Use “Landlord” and “Occupant” rather. The exact same uses to lienor and lienee, mortgagor and mortgagee, grantor and grantee, licensor and licensee, party A and party B. This is where you can utilize your imagination to come up with a various nickname for a celebration, as long as you utilize it regularly throughout the contract.
u2022 Watch out when using “herein.” Does “anywhere utilized herein” suggest anywhere in the contract or anywhere in the paragraph?
u2022 Write numbers as both words and characters: ten (10 ). This will reduce the possibility for errors.
u2022 When you write “including” think about adding “however not limited to.” Unless you plan the list to be extensive, you had much better clarify your intent that it is simply an example.
u2022 Don’t count on the guidelines of grammar. The guidelines of grammar that you discovered in school are not universal. The judge or jury analyzing the meaning of your agreement may have found out different guidelines. Write the agreement so that no matter what guidelines they discovered, the contract is clear and unambiguous. Follow this test for clear writing: Eliminate all durations and commas, then read it. Choosing the ideal words and positioning them in the ideal place makes the composing clear without punctuation.
u2022 Do not be innovative with words. Contract writing is not innovative writing and is not implied to provoke reflective ideas or controversies about nuances of significance. Contract writing is clear, direct and exact. Therefore, utilize typical words and typical meanings. Write for the typical male and the common woman.
u2022 Be consistent in utilizing words. If you describe the subject matter of a sales agreement as “products” use that term throughout the agreement; do not alternately call them “products” and “items.” Keeping consistency is more vital than preventing repeating. Don’t stress over putting the reader to sleep; fret about the opposing legal representative a year from now hunting for obscurities to get your contract into court.
u2022 Correspond in grammar and punctuation. The rules of grammar and punctuation you discovered may vary from others, however you had better correspond in your usage of them. Be mindful of such things as where you put ending quote marks, whether you position commas after years and states, and similar variations in design.
u2022 Think about including option of law, location choice, and lawyers fee stipulations. If your contract gets prosecuted, you might also provide 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 layperson. If your writing is so clear that a layperson could understand it, then it is less likely it will wind up in court.
u2022 Specify a word by capitalizing it and putting it in quotes. Capitalizing a word indicates that you intend it to have an unique significance. The following are two sample clauses for defining terms:
u2022 Wherever utilized in this agreement, the word “Item” shall mean the goods that Purchaser has concurred to buy from Seller under this contract.
u2022 Purchaser hereby consents to acquire from Seller ten (10) frying pans, hereinafter called the “Product.”
u2022 Define words when initially used. Rather of composing a section of definitions at the beginning or end of a contract, think about defining terms and principles as they first appear in the agreement. This will make it simpler for the reader to follow.
u2022 Explain technical terms and ideas. Remember that the celebrations may understand technical lingo, but the judge and jury who interpret and apply the agreement do not. Therefore, describe the agreement’s terms and ideas within the contract itself. Let the agreement promote itself from within its four corners.
Keep Your Client Informed While You Write
u2022 All contracts must include a cover letter. This provides you a location to advise your customer on how to utilize and sign the contract.
u2022 Tell your customer the ideas that come as you compose. Many ideas will strike you as you write: things that could go wrong with the offer, things that may occur in the future, things that happened in the past, ways to structure things much better. Write these in your letter to the client.
u2022 Notify your client of the threats. Composing a letter to the client as you write the contract is the best method to notify the client of the risks and rewards of entering into the agreement. Often, issues do not emerge until time is invested trying to word an agreement.
What To Do After the First Draft Is Written
u2022 Examine spelling, paragraph numbering, and cross references both manually and with your word processor’s spelling and grammar checker. This nearly goes without stating today, especially considering that Microsoft Word now checks your spelling and grammar as you type. (Regrettably it likewise alters “per stirpes” to “per foolish” if you stop working to enjoy it closely.) And now there are even computer programs that check contract files for undefined terms. DealProof is packaged with Corel WordPerfect for law offices, and DocProofReader is offered for download for MS Word 97 and 2000.
u2022 Let your secretary or paralegal read it. Not just will your personnel often find spelling and grammar mistakes missed by your word processor’s spell checker, but they will discover disparities and confusing locations that you missed when drafting.
u2022 Stamp “Draft # 1u00a06/22/ 2000” on it. This might be the very first of numerous drafts, so avoid confusion early by numbering and dating all drafts at the top of the very first page. It is also a great concept to compose “DRAFT” throughout the face of each page to preclude the possibility of an impatient customer signing a draft rather than waiting for the last version.
u2022 Let your customer read it. Letting the customer in on reading the first draft assures that your drafting will remain in tune with the customer’s dreams.
u2022 Save the drafts as multiple files on your computer system. If you conserve the very first draft on your computer as two files, you will have one file determined as the initial draft and the other determined as the existing variation. This can be done by calling the current variation “contract” and the first draft as “contract.d1.” Then, subsequent variations can be named “contract.d2”, “contract.d3,” etc., where the “d” in the extension shows draft. (Of course, if you’re not utilizing WordPerfect 5.1 for DOS, as I do, you can utilize long file names to reveal the contract name, draft number and draft date, such as “Contract Smith Jones draft 2 dtd 6 22 2000.”
u2022 Compare the existing variation to prior variations. If you save draft versions, it is extremely simple to compare one version to another using the word processor’s compare feature or using the CompareRite computer program. When you compare “contract.d1” to “contract.d2”, conserve the comparison as “contract.c21” and print it to reveal the customer what changes were made.
How to Print and Sign the Final Draft
u2022 Print the agreement on 24-pound bond paper rather of 20-pound photo copier paper. Utilizing a heavy bond paper will make it simple to tell the initial contract from copies. It will likewise last longer.
u2022 Print on pages using the very same paper, and if pages are changed, reprint the file using the exact same paper. This will prevent an argument that pages were substituted after the agreement was signed.
u2022 Sign the agreement in blue ink, not black ink. This, too, will make it simpler to distinguish the signed initial contract from photocopies.
u2022 Preliminary every page of the agreement. Having each celebration initial each page of the contract will make it less likely that anybody could claim a page was altered after the agreement was signed.
u2022 Determine the parties and witnesses who sign by providing blank lines below their signature lines for their printed names and addresses. This will make it easier to find the witnesses if the agreement is objected to. And remember to include two 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 result in personal liability of the officer. The correct way to sign in a representative capability is as follows:
ABC Corporation, a Florida corporation
If these 50 suggestions do not keep your contracts out of court, try mastering Strunk