Wednesday, August 30, 2006

Business Writing Tip 17 - Agreements - Focus on the Parties Not the Lawyers

Budgets, time, and contract psychology often don’t afford the luxury of including every conceivable contingency, or running negotiations into the ground over minutia. Just because an issue may be present doesn’t mean it can’t be deliberately omitted. When writing agreements that bind multiple parties, distinguish between what is essential to the bargain, and the superfluous. While it is important to address expected and likely future contingencies, it can be an exercise in futility to attempt to address every imaginable contingency.

First, make sure the agreement serves the parties’ objects, and says what the parties intend for it to say, and not what professionals charging for its legalese say is standard. Second, verify that the objects of the document and the parties have been addressed clearly. Does the Agreement leave any doubt or confusion about what the parties' obligations are? Here’s how we see it: Agreements ought to serve the interests of parties, not lawyers.

This isn’t to diminish the importance of what lawyers do; there are times when the protection afforded by a long, detailed contract is appropriate. What we are saying is that complexity and lengthy content can actually make an Agreement more likely to breed confusion and conflict, and that when provisions are not absolutely necessary to address reasonably likely future contingencies affecting the Parties' rights or duties, leave it out and stick to the deal’s subject. People don’t like to be confused or intimidated by a contract. In fact they are more likely to disregard the contract if they don’t understand it, or if they perceive it as a bunch of gobbledygook.

If an Agreement is clear, honest, and simple parties are more likely to perceive it as “fair”, more likely to honor it, and less likely to hide behind its confusing provisions.

Two things are certain:

- you'll strengthen your negotiating position with the other party
- and you'll spend less time and money on lawyers when seeking their counsel

If you first present them both with a clear, well-written document embodying or explaining a deal, rather than asking them to start from scratch.


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