Second Semester Reflections:Contract Drafting Tips

One of a transactional lawyer’s major responsibilities is to mitigate risk for her clients. A crucial way to mitigate risk is by drafting clear contracts. I found out very quickly this semester that it is easier said than done. In my early stages of writing, I have encountered many obstacles and new insights into the art of contract drafting. With the help of my professor and classmates, I learned some valuable takeaways to consider before putting pen to paper. Here are some of the key lessons I learned while drafting this semester.

Know Your Audience
Many times it is easy analyze a legal issue in a vacuum and assume that you and your client will be the only readers of the contract. Not true! Make sure you are mindful of all of the potential readers of your legal document. A contract may make its way to other attorneys, judges, or third parties. Keep this information in your mind as you are writing.

Be Precise
Another important lesson is to be precise in your drafting. One way to do this is to make sure you are using the appropriate language. Consider the legal effects of using “shall” versus “may.” Avoid using terms that may be ambiguous and have multiple meanings if it does not support your client’s legal issue.

Test Out Consequences
A major way to mitigate risk for your client is to anticipate and plan for potential pitfalls that can arise in a deal. A helpful way to identify and plan for risk is to first consider all of the necessary obligations of the contract. Second, consider how these obligations will be met. Third, determine when and how a breach of those obligations occurs. Finally, make sure that you address all of these concerns while you are brainstorming and writing.

Fully Understand Your Client’s Objectives
Another easy way to improve your drafting is by fully understanding your client’s goal, project, or legal issue. I found it useful to map out the legal issue in a flowchart or diagram. The visual flowchart made it easier for me to spot potential legal issues or gaps in my understanding of the deal. Identifying these issues early on made my drafting much easier and more effective.

These tips have helped me tremendously in my legal drafting. I am sure I will learn many more in the remaining seven weeks of the semester.