Where practicing law requires us to put on the clothes of computers and the Internet. Lawyer costs running $10,000 a month are not unusual in a fiercely contested breach of agreement lawsuit. Easy logic, for that reason, directs us to careful and thoughtful drafting.
Preparing agreements is actually one of the easy satisfaction of practicing law. Just 3 years earlier at this Convention, I provided 50 tips for contract writing. This article updates those pointers in the context of our new tools and capabilities. Following these tips could result in your writing a contract so clear nobody will wish to prosecute it, conserving your customer from the trials and adversities of litigation, genuinely a good factor to compose the contract that stays out of court.
These suggestions use to writing all kinds of agreements: workplace leases, property contracts, sales contracts, employment agreement, devices leases, prenuptial arrangements. They even apply to specifications and settlements in lawsuits, where you desire a contract so clear that it avoids future litigation. Wherever clarity and simpleness are necessary, these ideas will assist you there. The Appendix offers a few sample kinds to show these tips.
Before You Write the First Word
u2022 Ask your client to note the deal points. This can be in the kind of a list, outline or narrative. Doing this will assist the client concentrate on the terms of the agreement.
u2022 Engage your client in “what if” circumstances. A great agreement will anticipate lots of possible factual circumstances and reveal the parties’ understanding in case those realities emerge. Speaking to your client about this will create numerous issues you might not otherwise consider.
u2022 Ask your customer for a comparable agreement. Often, clients have had similar transactions in the previous or they have access to agreements for similar transactions.
u2022 Search your workplace computer system or the Web for a comparable type. Numerous times you can discover a comparable form on your computer. It might be one you prepared for another client or one you worked out with another attorney. Simply remember to find and replace the old customer’s name. Starting with a current type saves time and avoids the errors of typing. Here are some Website where you can find forms:
u2022 Obtain types in books or CD-ROM. Normal types of agreements can be discovered in form books, such as West’s Legal Kinds (an across the country set) and Florida Jur Forms, as well as in writings and Florida Bar CLE publications. These can be utilized as the beginning point for preparing the agreement or as lists of normal provisions and phrasing to consist of in the agreement. Lots of treatises and form books now include kinds on disk or CD-ROM.
u2022 Do not let your customer sign a letter of intent without this wording. Sometimes clients are anxious to sign something to show excellent faith prior to the contract is prepared. An appropriately worded letter of intent works at such times. Simply make sure that the letter of intent clearly mentions that it is not an agreement, but that it is simply an overview of possible terms for conversation functions. See Appendix C.
Writing that First Word
u2022 Start with a simple, generic agreement type. The form in Appendix A is such a form. It supplies a solid beginning point for the structure of the contract. Like a house, an agreement must have a great, solid structure.
u2022 State the right legal names of the celebrations in the very first paragraph. As obvious as this is, it is one of the most common problems in contracts. For individuals, consist of full first and last name, and middle initials if available, and other identifying details, if proper, such as Jr., M.D., etc. For corporations, check with the Secretary of State where incorporated. (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 Identify the parties by labels. Providing each celebration a nickname in the first paragraph will make the contract simpler to read. For example, James W. Martin would be nicknamed “Martin.”
u2022 Be careful when utilizing legal terms for nicknames. Do not use “Contractor” as a nickname unless that celebration is legally a professional. Do not utilize “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 firm issues 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 easy to find after the agreement is signed. It likewise makes it simple to explain the contract in other files in a precise method, such as the “December 20, 2000, Agreement for Sale of Property.”
u2022 Include recitals to offer background. Recitals are the “whereas” clauses that precede the body of an agreement. They offer a basic method to bring the agreement’s reader (celebration, judge or jury) up to speed about what the contract is about, who the parties are, why they are signing an agreement, and so on. The first paragraph in the body of the agreement can include the recitals by referral and state that they hold true and appropriate. This will avoid a later argument regarding whether or not the recitals are a lawfully binding part of the contract.
u2022 Describe the contract by writing out and highlighting paragraph headings in their rational order. The paragraphs need to flow in sensible, orderly fashion. It is not required to write them all at when; you can compose them as you think about them. Attempt to group associated ideas in the very same paragraphs or in adjacent paragraphs. Compose an employment contract’s preliminary paragraph headings like this:
u2022 Total each paragraph by composing the contract terms that apply to that paragraph. This is basic. You discovered this in grade school. Just describe in words what the celebrations agree to do or not do paragraph by paragraph.
u2022 Keep a pad at hand to keep in mind clauses to add. It is normal to consider additional provisions, wording and issues while composing an agreement. Jot these down on a pad as you write; they are quickly forgotten. Also keep your client’s overview and other kinds in front of you as you compose, and mark off products as you write them.
u2022 Repeat yourself just when repetition is necessary to enhance clarity. Ambiguity is created by stating the very same thing more than when; it is practically difficult to state it two times without creating ambiguity. Just if the principle is a tough one ought to you write it in more than one way. In addition, if you utilize an example to clarify a tough idea or formula, make certain that all possible meanings are considered which the example is precise and consistent with the idea as worded.
What to Keep an eye out for When Composing
u2022 Title it “Contract.” Do not leave this one to chance. If your customer wants an agreement, call it a contract. A judge now sitting on the federal bench once ruled that a file entitled “Proposition” was not an agreement despite the fact that signed by both parties. The lesson found out is, “State what you mean.” If you intend the document to be a lawfully binding agreement, use the word “Contract” in the title.
u2022 Write in short sentences. Brief sentences are simpler to comprehend than long ones.
u2022 Write in active tense, rather than passive. Active tense sentences are shorter and utilize words more efficiently, and their significance is more apparent. Example of active: “Sellers will offer the Property to Purchaser.” Example of passive: “The Property will be offered to Purchaser by Seller.”
u2022 Don’t use the word “biweekly.” It has 2 meanings: two times a week and every other week. The very same uses to “bimonthly.” Instead, write “every other week” or “twice a week.”
u2022 Do not state things like “active termites and organisms”. Avoid uncertainty by composing either “active termites and active organisms” or “organisms and active termites.” When adding a modifier like “active” prior to a compound of nouns like “termites and organisms”, make certain to clarify whether you intend the modifier to use to both nouns or simply the first one. If you intend it to apply to both, utilize parallel construction and compose the modifier in front of each noun. If you plan it to apply to just one noun, location 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 labels for a lease because they are quickly reversed or mistyped. Use “Landlord” and “Tenant” instead. The 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 various label for a celebration, as long as you use it consistently throughout the contract.
u2022 Look out when utilizing “herein.” Does “anywhere utilized herein” mean anywhere in the contract or anywhere in the paragraph?
u2022 Write numbers as both words and numerals: ten (10 ). This will lower the possibility for errors.
u2022 When you write “including” consider adding “however not restricted to.” Unless you mean the list to be all-encompassing, you had much better clarify your intent that it is merely an example.
u2022 Don’t depend on the guidelines of grammar. The rules of grammar that you found out in school are not universal. The judge or jury analyzing the meaning of your contract may have learned various guidelines. Compose the contract so that no matter what rules they found out, the contract is clear and unambiguous. Follow this test for clear writing: Get rid of all periods and commas, then read it. Choosing the right words and positioning them in the right location makes the writing clear without punctuation.
u2022 Do not be creative with words. Contract writing is not creative writing and is not meant to provoke reflective ideas or debates about nuances of meaning. Agreement writing is clear, direct and exact. Use typical words and typical significances. Compose for the commoner and the typical woman.
u2022 Correspond in utilizing words. If you refer to the topic of a sales contract as “goods” utilize that term throughout the agreement; do not at the same time call them “items” and “products.” Preserving consistency is more vital than preventing repetition. Do not fret about putting the reader to sleep; worry about the opposing lawyer a year from now hunting for obscurities to get your agreement into court.
u2022 Correspond in grammar and punctuation. The guidelines of grammar and punctuation you learned might vary from others, however you had better correspond in your use of them. Be aware of such things as where you put ending quote marks, whether you put commas after years and states, and comparable variations in design.
u2022 Think about consisting of option of law, location selection, and lawyers cost stipulations. If your contract gets prosecuted, you might as well give your customer some “ammo” for the fight. Examples of these clauses appear in Appendices A and C.
Write for the Judge and Jury
u2022 Presume the reader is an educated layman. If your writing is so clear that a layman might comprehend 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 suggests that you intend it to have a special significance. The following are two sample stipulations for specifying terms:
u2022 Wherever used in this contract, the word “Product” will indicate the goods that Purchaser has actually accepted buy from Seller under this contract.
u2022 Buyer hereby agrees to purchase from Seller 10 (10) frying pans, hereinafter called the “Product.”
u2022 Specify words when first utilized. Rather of writing a section of definitions at the start or end of an agreement, consider defining terms and concepts as they first appear in the agreement. This will make it easier for the reader to follow.
u2022 Explain technical terms and ideas. Keep in mind that the parties might understand technical jargon, however the judge and jury who analyze and apply the agreement do not. For that reason, explain the contract’s terms and principles within the agreement itself. Let the agreement promote itself from within its four corners.
Keep Your Customer Informed While You Write
u2022 All agreements need to include a cover letter. This offers you a location to instruct your client on how to use and sign the agreement.
u2022 Inform your customer the concepts that come as you write. Many ideas will happen to you as you compose: things that might go incorrect with the offer, things that may occur in the future, things that occurred in the past, methods to structure things much better. Compose these in your letter to the customer.
u2022 Notify your customer of the risks. Composing a letter to the customer as you write the agreement is the perfect method to inform the client of the dangers and benefits of entering into the contract. Regularly, problems do not emerge up until time is spent attempting to word a contract.
What To Do After the First Draft Is Written
u2022 Check spelling, paragraph numbering, and cross references both manually and with your word processor’s spelling and grammar checker. This practically goes without saying today, particularly given that Microsoft Word now examines your spelling and grammar as you type. (Unfortunately it also changes “per stirpes” to “per foolish” if you stop working to view it closely.) And now there are even computer system programs that check contract documents 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 only will your personnel often discover spelling and grammar errors missed out on by your word processor’s spell checker, however they will find inconsistencies and complicated areas that you missed out on when drafting.
u2022 Stamp “Draft # 1u00a06/22/ 2000” on it. This might be the very first of many drafts, so prevent confusion early by numbering and dating all drafts at the top of the first page. It is also a great concept to compose “DRAFT” throughout the face of each page to prevent the possibility of an impatient client signing a draft instead of waiting on the last version.
u2022 Let your customer read it. Letting the client in on checking out the very first draft ensures that your preparing will remain in tune with the client’s dreams.
u2022 Conserve the drafts as multiple files on your computer system. If you conserve the initial draft on your computer as two files, you will have one file determined as the very first draft and the other identified as the current version. This can be done by calling the present version “agreement” and the initial draft as “contract.d1.” Then, subsequent versions 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 use long file names to reveal the contract name, draft number and draft date, such as “Agreement Smith Jones draft 2 dtd 6 22 2000.”
u2022 Compare the current version to previous versions. If you save draft versions, it is very easy to compare one variation to another using the word processor’s compare feature or utilizing the CompareRite computer system 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 instead of 20-pound copier paper. Utilizing a heavy bond paper will make it simple to tell the initial agreement from copies. It will also last longer.
u2022 Print on pages using the same paper, and if pages are changed, reprint the document using the exact same paper. This will prevent an argument that pages were substituted after the contract was signed.
u2022 Sign the contract in blue ink, not black ink. This, too, will make it much easier to separate the signed original contract from photocopies.
u2022 Preliminary every page of the contract. Having each party initial each page of the agreement will make it less most likely that anybody might claim a page was changed after the contract was signed.
u2022 Identify the parties and witnesses who sign by providing blank lines listed below their signature lines for their printed names and addresses. This will make it easier to find the witnesses if the contract is objected to. And keep in mind to consist of 2 witnesses for business leases.
u2022 Make sure that corporate officers include their titles, the corporation name and the word “as.” Failure to do this can lead to personal liability of the officer. The proper way to check in a representative capability is as follows:
ABC Corporation, a Florida corporation
If these 50 tips don’t keep your contracts out of court, attempt mastering Strunk