Comments on: Gamesmanship in Contract Drafting http://www.adamsdrafting.com/2007/10/29/gamesmanship-in-contract-drafting/ Mon, 15 Mar 2010 19:33:52 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: Sol Irvine http://www.adamsdrafting.com/2007/10/29/gamesmanship-in-contract-drafting/comment-page-1/#comment-16727 Sol Irvine Wed, 14 Nov 2007 15:44:56 +0000 http://www.adamsdrafting.com/2007/10/29/gamesmanship-in-contract-drafting/#comment-16727 A few practical problems with gamesmanship that I have observed in the real world: 1) The other side will probably have something to use against you as well, and your gamesmanship could prompt them to use it. 2) The original drafters (or even original deal team members) are often not the same people called upon to undertake a termination or litigation analysis when things are going badly. The nuances of your gamesmanship are not likely to carry over. 3) Sloppy drafting leads to unexpected results--sometimes favorable, sometimes not. Where the equities in the relationship have changed over time, you may find that an ambiguity that worked in your client's favor is now adverse to the client's interest. You would have been better off negotiating unambiguously favorable language. A few practical problems with gamesmanship that I have observed in the real world:

1) The other side will probably have something to use against you as well, and your gamesmanship could prompt them to use it.

2) The original drafters (or even original deal team members) are often not the same people called upon to undertake a termination or litigation analysis when things are going badly. The nuances of your gamesmanship are not likely to carry over.

3) Sloppy drafting leads to unexpected results–sometimes favorable, sometimes not. Where the equities in the relationship have changed over time, you may find that an ambiguity that worked in your client’s favor is now adverse to the client’s interest. You would have been better off negotiating unambiguously favorable language.

]]> By: Ken Adams http://www.adamsdrafting.com/2007/10/29/gamesmanship-in-contract-drafting/comment-page-1/#comment-16198 Ken Adams Sun, 11 Nov 2007 20:35:56 +0000 http://www.adamsdrafting.com/2007/10/29/gamesmanship-in-contract-drafting/#comment-16198 Today I conducted an email correspondence with a reader on a different topic. I suggested that a tactic he mentioned constituted gamesmanship. He responded as follows: <blockquote>You're also correct that the whole thing is part of gamesmanship. I don't know how else to respond. Part of me wants to say "yeah, so?"... and another part of me wants to say "yeah, but it's either them or me." Being the "bigger man" doesn't always work out—especially when you're working on someone else's behalf.</blockquote> I suspect that many people share this approach. Today I conducted an email correspondence with a reader on a different topic. I suggested that a tactic he mentioned constituted gamesmanship. He responded as follows:

You’re also correct that the whole thing is part of gamesmanship. I don’t know how else to respond. Part of me wants to say “yeah, so?”… and another part of me wants to say “yeah, but it’s either them or me.” Being the “bigger man” doesn’t always work out—especially when you’re working on someone else’s behalf.

I suspect that many people share this approach.

]]>