Jeff Fabian, J.D.

Former lawyer, professional writer for law firms and the legal industry with interests beyond the law.

Tag: thoughts on contract drafting

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Did You Miss Anything? Going Beyond the Four Corners of the Document

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.

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Popular Belief Notwithstanding, The Order of Your Words is Important

The foregoing notwithstanding? Or, notwithstanding the foregoing? In my experience, most lawyers don’t give much thought to the distinction between the two. But, is there not a critical difference? Let’s look at some examples.

A Primer on the Proper Use of ‘Notwithstanding’ in Contracts

In a past life, a transactional attorney I worked for once told me that my edit to move “notwithstanding” within a contract provision was “personal preference.” Since that day I have always carefully scrutinized the use of this term in contracts. As can be demonstrated with a relatively simple example, the placement of this word—frequently in either “The foregoing notwithstanding,” or “Notwithstanding the foregoing”—can completely alter the effectiveness and enforceability of competing language in an agreement.

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