Albert Einstein

Albert Einstein

"If you can't explain it simply, you don't understand it well enough."


Albert Einstein

george bernard shaw

"We learn from experience that men never learn anything from experience."



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  • Approach
  • Drafting
  • Define the problem - and then solve it



Contracts create expectations. They define anticipated levels of performance. They anticipates situations that might reasonably arise. They reflect your professionalism and sophistication.

Attorneys and clients must work together to draw on their respective experience of what might occur and how best to address what happens when the anticipated occurrences occur.

Contracts obviously document the outcome of your initial negotiations and create the context for the next round of negotiations. They reflect your good faith, so be prepared for this question:

"Would you accept the clause you have proposed if you were in my position?"

If you would not accept it, the inference is that you are not negotiating in good faith.




Approach to drafting

Because contacts define expectations and define levels of performance, there is no substitute for an uncomplicated and unpretentious drafting style.

Just one example: while adjectives and adverbs tend to add color to language and make for more interesting reading, in contracts they can create enormous problems. Whenever you are tempted to use them in contractual language ask yourself this: Do they add to the level of expectation or detract from it by creating uncertainty?

Finally, you can easily test the clarity of your contractual language by using what I have called "the-guy-in-the-passage test": Show your language to someone who knows nothing about your deal. If the "guy-in-the-passage" reads it the way you meant it to be read, you've done well. If he asks question, you haven't...



Define the problem — and then solve it

Every clause in a contract must address and solve a specific problem that you've identified.

If you can't define the problem your clause is attempting to address, and if you can't justify your proposed solution to that problem both in terms of reasonableness and business acumen, you are wasting paper and ink and unecessarily killing trees and destroying rain forests. You will also face uncomfortable questions about your professionalism and business acumen.

In answering the specific question as to the reasonableness of the problem your contractual language is trying to address, and in justifying the proposed solution that your solution presents, you must pass what I havecalled "the straight-face test": Can you answer the question and explain your proposed solution without smiling? If you can't, you will look like a twit.