Top Ten Drafting PitFalls

There are rarely any shortages of high profile drafting disasters discussed in the press. One of the most famous is the ownership battle over the Los Angeles Dodgers where Frank McCourt put forth a copy of a post-nuptial contract in court that revealed if he and his wife ever divorced that he would be entitled to full ownership over the team. However, his ex-wife and former CEO of the Dodger’s team, Jamie McCourt, produced an almost exact copy of his post nuptial agreement insinuating that Jamie would in fact take over ownership of the team. Apparently their lawyer Lawrence Silverstein had made his own revisions and given out these copies on separate incidents to the couple without ever informing them that the other had gotten a nearly exact copy. This is an example of a very significant contract drafting disaster. Most time they occur due to fairly simple errors. Some techniques to practice in an effort to avoid contract drafting mistakes include:

  1. Should I create my clause from scratch? No. As a contract drafter you should observe various sample agreements and clauses that are available from major legal research providers (you can check out WestlawNext for proven contract language). By using such resources it increases your odds of finding acceptable language for individual circumstances from tested contracts. By using reliable language you ensure the highest chances of having your parties’ intent recognized and fulfilled.
  2. Consistently define terms and phrases in the definitions section so that your agreement does not becoming confusing to understand. Look at advantage of tools to provide accurate review of your work and to ensure terms are correctly defined.
  3. Take into consideration plural nouns and certain words like, every, each, as well, and any used in drafting a contract often create confusion as whether to not the drafter is discussing one member or a whole group which just opens up the door for tricky legal challenges.
  4. Be specific. Leaving out key details can stir up a lot of problems and legal disputes. A good tip is to create a check list to look over with your client. It will increase precision of the document and that’s important to clients.
  5. Generate and stick to a solid standard of provisions.
  6. When you have completed a document you should red line the final copy against the very first to make sure parties understand the terms.
  7. One crucial part of drafting contracts is simply allotting the necessary time for review.
  8. It’s unrealistic to think just because you receive legal assistance to help with your legal drafting of documents doesn’t mean mistakes are unheard of. Double check professionals work by using a draft-checking software system.
  9. If you edit a form numerous times it can become difficult to keep track of the modifications. So you should make various copies of cover sheets along the way to verify the negotiated terms on record. The cover sheets can actually act as a learning material for new drafting contracts and act as a basic foundation for what is qualified as standard versus not standard.
  10. The only way to truly avoid a drafting contract nightmare is by keeping and constantly updating organized and signed documentation.



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