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Legal Writing -- Contract Drafting
Ken Adams has a pop quiz for lawyers who draft contracts at his blog, AdamsDrafting. I don't draft contracts, but I enjoy pop quizzes. (By the way, I made a perfect score). Here are the questions:
Does the phrase representations and warranties determine the remedies available to a contract party?
When you draft contracts, do you include a traditional recital of consideration in the lead-in to the body of the contract?
Do you use the phrase best efforts to impose on a party a more onerous obligation than would be imposed by using the phrase reasonable efforts?
Do you use in your contracts any of the following: WITNESSETH, WHEREAS, NOW THEREFORE, and IN WITNESS WHEREOF?
Do you use the phrase indemnify and hold harmless?
“All matters arising under this agreement shall be governed by New York law.” Does this represent disciplined use of the word shall?
Does the phrase intending to be legally bound feature in your contracts?
Go to
Ken's blog to check the answers. Ken is a strong advocate for improving the quality of contract drafting and also for establishing a set of rules to guide contract drafting. Even litigators (like me) can learn a lot from reading Ken's blog.
While you are at Ken's blog,
read his entry about the different cultures of deal lawyers and litigators. Ken accurately states the general perception that litigators as being fighters and deal lawyers as being builders. But the best litigators and the best deal lawyers find a way to do both.
