Three Important Ways Business Litigators Enhance Contracts

May 11th, 2015 by Adrian Szendel

Sound business practice is to use written agreements in business operations. In any business relationship or transaction there is a possibility that something may go wrong resulting in a business dispute. In essence, written agreements are simply a means of preparing in advance for resolving and disposing of contract disputes through litigation or other dispute resolution process. Utilizing a commercial litigator from the outset can greatly enhance the value and enforceability of business contracts.

The most effective and useful contracts are thoughtfully drafted with the expectation that they will be
analyzed and scrutinized by litigation counsel, courts and tribunals in the context of a business dispute. A
common mistake made by business stakeholders is waiting until they are in the thick of a messy,
disruptive contract dispute before they consult with a litigation attorney on how best to protect and
advance their interests. Achieving the desired result through litigation can be time-consuming and costly
and is made even more difficult when the contract contains poorly-drafted or inadequate terms. An
experienced commercial litigation attorney can add tremendous value on the front-end by implementing
his or her knowledge and expertise in structuring and drafting agreements to reduce the likelihood of
prolonged disputes, thereby saving major headaches and expense when disputes actually happen.

The following are three important ways that business litigation counsel can add value from the outset
of contract drafting and negotiating.

  • Business litigators provide informed foresight to help avoid risk by exposing and
    correcting contract vulnerabilities before they become problematic.

An effective contract should provide a clear and complete framework for the business relationship it
governs and serve as a “how-to” guide for carrying out that relationship in order to prevent disputes from
arising in the course of such relationship. Contracts that are missing necessary terms or contain
ambiguities make disputes more likely to happen and more difficult to resolve. Business litigators are
particularly skilled in identifying and exploiting such contract weaknesses and persuading courts on how
to interpret contract language. A savvy litigation attorney who has dealt with contract disputes involving a
particular type of business relationship or transaction is in an advantageous position to reasonably predict
where the vulnerabilities and litigation risks lie and craft appropriate and effective terms tailored to that
situation. Applying such scrutiny at the outset before a problem arises helps to avoid litigation by making
contract terms more “bullet-proof”.

  • Business litigators provide crucial insight into the proper use and application of so-called
    “standard” contract provisions that only come into play when disputes actually arise.

An effective contract should provide a roadmap for how disputes under the contract will be handled,
both to streamline the process and to guide the decision-maker tasked with resolving the dispute. The
substance of so-called “standard” provisions such as jurisdiction, choice of law, liquidated damages or
arbitration clauses are of critical importance when a business dispute arises. Simply relying on forms or
boilerplate for such important, but oft-misunderstood, contract terms is almost always a big mistake.
Litigation attorneys often look to these terms first because they can significantly impact the course and
strategy of a dispute. Business litigators have particular skills to advise on which of these key terms
should be included, what they should say, and what effect they will have under specific circumstances in
order to best protect business interests if and when a dispute happens.

  • Business litigators provide expertise to anticipate and properly implement critical changes
    to protect business interests throughout the course of a contractual relationship.

A written agreement provides fundamental evidence of the rights and obligations the parties to a
business relationship intend to be enforced. But business relationships are complex and dynamic.
Business disputes commonly arise when circumstances and intentions change and are especially
problematic when the parties have not accounted for this. Litigation attorneys have particular expertise
with evidentiary rules and confronting the challenges that arise in proving specific contractual rights and
obligations. Business litigators are not only adept at anticipating such issues and incorporating
appropriate terms to deal with them up front, but can also lend invaluable expertise in managing how
changes are implemented and documented so that business interests are adequately protected as a
contractual relationship progresses.

Szendel PLLC has extensive experience both in litigation and in drafting effective contracts. We provide counsel and consultation to business owners, in-house counsel and transactional lawyers in connection with high-stakes and complex contract drafting and negotiation. Please feel free contact us to learn more about how Szendel can help your company avoid risk through effective contract drafting.

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