Last reviewed June 2023
This page is a collection of links to some of my prior posts in this area. It’s a work in progress.
Some initial considerations
Ten Commandments of Contract Drafting
A contract can often be short and simple
Business planning for contract drafters: A methodical three-step approach
Letters of intent: their highest and best use is disavowing a binding contract
Whose contract form to use?
How to convince the other side to use your contract form
How to kill a big-company deal in the cradle: Refuse to use the other side’s contract form
How “hardball” should your contract draft be?
A balanced contract form can help get to signature faster
Leading off with a “hardball” contract form document might be a bad idea
Cramming down a killer contract might give you a wounded tiger to deal with later on
Another argument for using balanced contract forms (it has to do with role reversal)
How long should a contract be?
In praise of short, simple contract clauses
Contract simplification: Five specific techniques
A longer contract might get signed faster
In contracts, brevity is not always the highest virtue
Why you should draft contracts with long, run-on paragraphs (a satire)
Brevity in contracts: Lessons learned from writing legal briefs for litigation
Drafting – other general principles
Don’t count on renegotiating the terms of a master supply agreement at renewal time
If you can’t agree on an outcome, try agreeing on a process instead
Sometimes it’s better not to ask — as Conan O’Brien’s lawyers seemed to know, if the other side says no (or insists on the opposite of what you requested), you could end up worse off than if you’d remained silent
The virtues of using industry-standard terminology in contracts
Contracts should explain their terms as necessary
Why word processing has actually increased clients’ total cost of contract negotiation
Drafting – specific issues
In defining “affiliate,” too-loose a definition of “control” can get really expensive
Patent-infringement warranties should be negotiated very cautiously
Source code escrows usually aren’t worth the bother
Drafting contractual limitations of liability: Do it risk by risk, not one-size-fits-all
Limitations of liability: Try varying them with time, and/or with circumstances
Gross negligence — how to draft your contract to immunize you from liability (maybe)
Can a contract be unilaterally amended? Then its arbitration clause might be unenforceable
When should a contract clause say “arising out of or relating to the Agreement”?
A cautionary tale: Don t say renew when you mean extend
Bare-bones contracting tips for software developers and other consultants
Declaring an emergency — Adapting an aviation concept for contract negotiations
Why a business seller might want to propose locking itself up with a non-competition covenant
Drafting for relationship management
Six contract clauses to help prevent lawsuits: Status-review conference calls; consultation requirements; escalation of disputes; early neutral evaluation; mini-trials to party executives; attorneys’ fees awards if settlement offer not beaten.
G-PP-AA: Five questions to ask at every business meeting you ever attend
Planning for success: Five aphorisms
An early-neutral-evaluation clause can help protect business relationships
Drafting for disputes
Consider spelling out exactly what is to be done to fix a breach
Keep individuals’ personal interests in mind — prevent them from blocking a reasonable settlement
Why the fraud claim is the lawyer’s weapon of choice in lawsuits over failed technology projects
Consider providing a written risk-factors disclosure sheet
Consider a no-reliance clause to help forestall claims of fraudulent misrepresentation
Clearly label demos and mock-ups as such
Drafting contracts after the Supreme Court’s Twombly and Iqbal decisions: Provide for extrajudicial discovery? (See also A better way of nipping business legal disputes in the bud: Cut the crap and just exchange the relevant information.)
Sneak some demonstrative aids into the jury room – by making them contract exhibits
Attorney’s-fees clauses automatically become “loser pays” under California law
Negotiations
Get contracts done faster: Start screen-sharing negotiations with Webcam video small talk
Note-taking in meetings and phone calls: Three easy habits your lawyer will love you for
Sometimes it’s better not to ask for the contract language you want
When you can’t just say no in a contract: Three creative compromises
Five potential responses to a bigger company’s onerous contract demands
When a contract negotiation gets tough, try to make it about money, not about legal stuff
An oral understanding might not get you off the hook for a written contractual obligation
Responding to customer demands for extended payment terms
Best-efforts obligations: Six negotiation tips
Negotiating a customer’s code-of-conduct compliance request in a contract
Dilbert on sales-contract negotiations
Twelve legal “gotchas” for software sales people
RFP responses
Five legal points to include in an RFP response (though Procurement’s nose may get out of joint)
RFP provisions that hurt, not help, the customer
Maybe startups shouldn’t respond to RFPs
Final review
Signing a business contract? A final checklist of top things to watch out for — with true stories about why you should use it (e-book plug)
Signing a business contract? Be sure your company title is in your signature line
Follow me
Signing a business contract: