In this article, I focus on the idea of looking beyond the contents of your contract or brief to see not what mistakes you’ve made within the document, but what you’ve overlooked completely. Too often, during the editing process, lawyers (and other people) only focus on what’s in front of them. But, in many cases the problem is not what is there; rather, the problem is what’s missing. The article starts with an example in the transactional context and then gives some practical suggestions before turning to litigation.
Providing Sound Advice Requires a Broader Perspective
As a transactional lawyer, you spend a good portion of your day writing and reviewing contracts. Whether you’re working on an eight- or nine-figure deal, preparing an NDA, or addressing a consumer relationship, providing sound advice is as much about spotting missing terms as it is about clarifying or negotiating the existing language in the agreement.
Focus on What’s Missing
When reviewing an agreement – whether your own or someone else’s – it is important to focus on more than just the language in front of you. Templates get old, different parties have different interests, and some lawyers are just better at writing contracts than others. It is easy to get trigger-happy with your red pen, but often the biggest issues are the ones that aren’t addressed at all.
In order to avoid a miss that might expose your client, take the time to step back and focus on the relationship and applicable laws – and consider whether the agreement is lacking in any substantive areas. While you may be able to rely on personal knowledge, consider using the resources at your disposal to develop a roadmap for preparing and reviewing agreements.
Playbooks, Clause Libraries and Checklists
Three good resources for drafting and reviewing agreements are playbooks, clause libraries and checklists:
- Playbooks – A typical playbook is comprised of a collection of clauses, strategies and negotiated resolutions to commonly-faced issues. These work well for in-house legal departments that are regularly negotiating the company’s standard documents.
- Clause Libraries – Clause libraries allow you to pick and choose from substantive provisions to add to new or negotiated agreements. Consider building a clause library as an ongoing project – adding and replacing provisions as you finalize new contracts.
- Checklists – Using a simple checklist can be one of the most efficient methods for avoiding misses. Indemnification? Check. Termination rights? Check. Ownership of intellectual property? Better check the clause library.
Each of these will have different levels of appeal to different lawyers, and you may have another solution for ensuring that your agreements comprehensively address your clients’ concerns. Regardless of your preferred method, consistently looking at issues beyond the four corners of the document will help ensure that you are providing competent representation.
Applying these Concepts to Litigation
In two important ways, these concepts also apply to litigation. The first is the more obvious of the two: Using the absence of contract terms to your clients’ advantage.
When Silence Speaks Volumes
When reviewing contracts in evidence, often what they don’t say is just as important as what they do. To take an obvious example, consider a contract with an exclusion for consequential damages but without cap on direct damages. If the defense is arguing for limited liability, the presence of one limitation juxtaposed with the absence of the other can make a compelling case for uncapped direct liability – even when faced with countervailing factors such as parol evidence. Add in the presumption (or express acknowledgement) that the contract memorializes an arm’s length transaction with both parties represented by counsel, and the absence of the damages cap can speak volumes.
Reading, Re-Reading and Reconsidering Your Brief
The second is perhaps a bit tangential, but worth adding to the discussion nonetheless. Once you’ve finished your brief, polished it, sat on it, and decided your arguments are as solid as they can be, consider going back to square one. Opposing counsel is not only going to attack your arguments, but he or she is also going to point out what is absent from your filing.
Did you miss anything?
Due to page limits, time constraints and other factors, briefs and motions need to be limited in scope. But, when you think you’re done, it can be worthwhile to shift your focus from what you’ve written to what you haven’t. I would venture a guess that most – even the vast majority – of the time you’ve covered everything; but, we all miss things once in a while. When you do miss something, it is better that you catch it than your opposing counsel.