When it comes to drafting a new contract, if starting from scratch, the first thing I do is take very intensive notes and engage in upfront conversation with the client. I ask: What are your goals? What do you want/need from the other party? What are you going to be doing? What is the other party supposed to be doing? I’m going to ask everything I need to know to draft the agreement. Is there a term or time constraint on this? Is there any contingency? What’s your plan if something does go wrong? It’s a back-and-forth process. Therefore, a lot of input is required from the client.
Surprisingly, it is more typical for me to review a drafted agreement than create one from scratch. Reviewing a contract is a similar process. However, I initially look for any red flags that stand out. A classic one is having a unilateral attorney’s fee provision. A unilateral attorney’s fee provision is not allowed in Florida, but people still put it in contracts. A waiver of jury trial, depending on the situation, is another one that Florida businesses also incorporate a lot.
A unilateral attorney’s fee provision essentially indicates that if two parties go to court and party A wins, party B has to pay party A’s attorney’s fees, but if party B wins, party A is not going to pay any of party B’s attorney’s fees. As a result, the court does not allow that kind of provision. It has to be a mutual attorney’s fee provision.
When reviewing, it’s a two-tier process. I know what to look for and what to ask. Depending on the situation, I may need to have a conversation with the client about their goals. Then, I’m going to make sure that the agreement states what it’s supposed to state. Quite simply, I make sure that the terms in the contract detail what the client agreed to. Usually, there is an upfront understanding that people want in writing. For instance, company ABC and company XYZ could make it known that they agreed to certain things, and therefore, lay out what they want the agreement to look like. Or, if the client wants me to revise the agreement, I would revise it and have a conference with the client asking them if what the paper says is what they want.
Reviewing everything in the contract with the client is the final step. I explain everything in digestible and understandable terms. you may have to be reasonable and perhaps give up things in your contract to get changes you want made. Throughout the entire contract review process, it is all about negotiating what works for both parties. If you want something that’s really important to you, and the other side wants something that is really important to them, you may have to find a middle ground or something that works for both. This happens often in the reviewing and drafting process.
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