Thursday, March 3, 2011
Good contract documents: they make all the difference
I've just finished reviewing a construction contract as precursor to helping with resolving major disputes between the parties. The parties used a "standard" industry form, but not in its current version. It incorporates, in part, a proposal that has arguably contrary terms. Which governs? Eventually the parties will resolve this between themselves or the issues will be resolved by arbitration or litigation, but it reminds me that good drafting can avoid many of these types of problems. While hindsight is 20/20, dealing with important contractual issues at the front end, prospectively, can help avoid most disputes, or at least establish how they will be resolved. Don't leave your concerns to "standard" forms. Consider what you want and expect, and clearly put it in your contract. Consult with your counsel and let him or her help you. This isn't self-serving advise or marketing; just a good idea. Yes, we lawyers often focus too much on what could go wrong, but that's part of our job so our clients can then make business decisions about how to deal with those concerns. And if any of those concerns later do come up then you'll be happy you spent the time to consider and address them beforehand (if you did, and if you didn't we lawyers will try and avoid saying I told you so).