| Summary: Contract drafting is tricky, and requires both skill and experience to avoid the pitfalls which may come if the contract is litigated. |
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Contract drafting is an art, one which can take years to skillfully master. This is because contract drafting isn’t just about the words on the page, or even about how well put together the words are on the page. Contract drafting is all about litigation, either forestalling it, or winning it.
When drafting a contract, the contract drafter has to fully understand not only what the contract is trying to accomplish in the first instance, when the contract is signed and in place, but also has to anticipate the different ways in which the contract could be challenged in the event of a lawsuit. Lawsuits involving contracts most typically arise either because the contract has been breached (or one or both parties to the contract perceive that it has been breached), or because because of some defect in the contract. In either case, the skilled contract drafter will anticipate all of the arguements an attorney may make in court against the contract and the drafter’s client, and attempt to provide for every contingency.
In fact, most often the attorneys who are the very best at contract drafting are those attorneys who also have experience in litigation, as they know how to think like a litigator, and anticipate what weaknesses in the contract a litigation attorney may attack in court. If you are looking to have a contract drafted, it is advisable to find an attorney who does have some background in litigation themselves.
One always hopes that a contract will not end up being breached, and will not end up in court. The best way to avoid that is to have the contract drafted by someone who knows what things are likely to cause the contract to end up in dispute, and knows how to draft the contract to avoid such a dispute or, if such a dispute is unavoidable, to ensure that their client has the best possible position going in to court.
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