I recently encountered this article about drafting a mediation settlement agreement.
The fact that it was published by the Section of Litigation of the ABA reminded me that many litigators apparently dabble in contract drafting in order to draft settlement agreements. I find that a slightly scary notion, as the technical nature of contract drafting wouldn’t seem conducive to dabbling. I’ve sometimes wondered whether the florid quality of much release language is due to its being drafted by litigators.
So my instinct suggests that litigators would be better off having corporate lawyers draft their settlement agreements in consultation with them. But given the parlous state of mainstream contract drafting, litigators would be entitled to suggest that they could hardly do worse than most corporate types, particularly as settlement agreements aren’t rocket science.
6 thoughts on “Litigators Drafting Contracts?”
As a mediator, I agree with what you say except that, in the moment of settlement, it is important to have a document signed right then and there to avoid “buyer’s remorse” later!
In a complex settlement, I often suggest to counsel that a binding outline be prepared and .signed with the formal document to be drafted and signed later when there is not as much “pressure”. While there is some risk in this as there may be disgreement over wording etc., it is far less than walking away from the table without the resolution in some form of written form.
As a litigator, I would (of course) take the opposite position and suggest that litigators may actually be better at drafting contracts than corporate lawyers.
First, litigators draft documents (like letters, motions, and briefs) all the time. Good writing is good writing, regardless of what type of document is being written.
Second, good contractual writing (including much of what you discuss here in this blog) requires that the drafter carefully consider whether drafted language contains ambiguities, and if so, how to eliminate those ambiguities. Commercial litigators spend their lives litigating cases arising out of badly drafted contract language, and so we are particularly sensitive to the many different ways in which contract language can be (mis)interpreted.
The corporate lawyers that I know do not generally follow (and, if the disgruntled client goes to a different law firm for the litigation, may not even be aware) litigation arising out of badly drafted language in their contracts. They therefore lack the feedback necessary to continually refine contractual language (which is one reason I think your blog is invaluable).
Finally, a lot of what you seem to be doing here in your blog is attacking the “common wisdom” of contract drafting (e.g., showing the problems inherent in using the phrases “representations and warranties,” “successors and assigns”) and showing why they should be changed. As litigators, we did not come up through the corporate side of the firm, and so, we have not learned many of these customary phrases. Without the baggage of the received wisdom of generations of corporate lawyers, we may be more free to simply draft language that says what our clients want it to say.
A related point: Sometimes the law of the subject matter or about the nature of one of the parties might add rules for what an agreement needs for a release to be valid. To pick the example I know something about, ERISA’s fiduciary-responsibility and prohibited-transaction rules can make voidable a release that most lawyers would assume is “airtight”.
Although one’s client often has its own idea about how much protection it wants to buy, the best lawyering of a settlement might result from a collaboration of knowledge – from each field of law that might affect the agreement, and from experience with disputes – put together with good writing skills.
I do the majority of the transactional work at my firm. However, I also enjoy consulting on litigation since it reinforces the result of bad drafting. I think litigators who take transactional work seriously can bring a lot to the table, as they are frequently dealing with the results of poor drafting. For example, I recently worked on a case in which a purchase agreement contained three conflicting arbitration references and one to a lawsuit – you can bet that the next muti-part agreement I draft will contain clear guidance as it relates to arbitration.
Ken, meet can-of-worms… can-of-worms, meet Ken.
Regardless of whether one specific type of lawyer is better than another type of lawyer at x task, I would like to suggest that the bigger problem that most lawyers I meet have is that they seem unwilling to consider that ANYONE has more knowledge than they do, on ANY topic.
We were discussing this over on another forum – and it seems as if the process of becoming a lawyer somehow makes some folks believe they’ve got superpowers. Maybe the hood looks too much like a cape. The simple truth is that any particular task/skill takes time and experience to excel. And lawyers seem to be posterchildren for not wanting outside help.
So while it’s possible that a litigator could also be a good settlement drafter, for example, unless they’re drafting them all-day, every day, I would guess that a contract drafter would probably write more unambiguous and clear documents… and the contract drafter shouldn’t get up in front of a jury and expect to deliver a summation better than a career litigator.
Unfortunately, I see this phenomenon every day as a contract negotiator. Lawyers (corporate lawyers, actually, which suggests that they don’t have these skills either) believe they know how to draft contracts and negotiate successfully on behalf of their clients. But they know neither proper drafting skills nor negotiation skills. And invariably, I have to take it away from the lawyer and talk with a business person to finalize the deal – whom the lawyer should have engaged on their own, but didn’t.
Litigators usually have an eye for detail, which comes from experience of digging deep into the documents, analyzing them and actually witnessing during trial how and why small changes in language can make a big difference (e.g. will or shall). As far as analyzing contracts goes, litigators have unmatched expertise, and as a result they are good at drafting them as well. Ajay