In the article on arbitration versus litigation that I mentioned in this post, a couple of the litigators interviewed noted wistfully that they’re almost never consulted about what dispute-resolution provisions to include in a given contract.
That raises a general question: Do you ever consult litigators when drafting? Do you think it adds value to do so?
It would seem sensible to consult litigators in this manner. But as there seems to be little consensus among litigators when it comes to dispute-resolution strategies, you might get all sorts of advice of uncertain reliability.
I believe that our firm's standard clauses on arbitration (and certain of our other standard clauses) were drafted by lawyers in our litigation department. However, I would not usually get their input on a contract-by-contract basis, or to review proposed amendments to the clause, because the time and cost is less likely to be worth the additional value.
If the amendments were significant – and some of those described in the article, such as time limits, might fall into that category – I would probably call a litigator to get their view.
I've long thought the years I spent doing (IP) litigation were some of the best training I could have had for contract drafting.
I'm not sure there's much of a difference. The IP litigators here have jokingly refer to my day-to-day work as "pre-litigation work."
That said, the reason input from a litigator can be handy is because it will be litigators trying to understand the things that you "set up" in the contract. And, in that case, it's the "substance" and not the "expression" that adds valuable. I don't think that litigators bring any special skill to the "expression" (i.e., drafting or structuring a business deal) generally than any other competent lawyer.
Rather litigators add value by filling in substantive or procedural information for things like indemnification, choice of law, venue, jurisdiction, etc., which is essentially the areas of law that they have expertise.
All of that said, I think that every transactional attorney needs at least some exposure to litigation. My own litigation experience has greatly shaped the way I address certain legal issues. It also has given me a perspective on the types of issues that are issues and those that are not–if there's going to be a dispute, on what topics are clients likely willing to spend their money.
As to arbitration: everyone's got their own feelings, sophisticated clients especially. I don't think that a litigator's feelings one way or another really matter. And even the most "complex" arbitration clause is pretty straight forward that I'm not sure (save for an opinion) a litigator will bring much, if any, added value.
I agree with these comments. As a business litigator who transitioned his practice to mostly a transactional one, I believe that a litigator's perspective adds value to contract drafting. It gives the drafter the benefit of a second set of eyes, eyes belonging to someone in the trenches litigating inartfully drafted contract provisions.
I’ll go along with Mike on two counts. First, I sometimes ask litigators to review provisions dealing with indemnity, venue and ADR for substantive and procedural issues, but I do not ask them to draft changes. Instead, I incorporate their comments and then ask them to approve the result. And second, I agree that litigation is wonderful preparation for any transactional lawyer.