Write a Contract That Stays Out of Court

incomprehensible-contractAll practicing lawyers are litigators. Even though many lawyers never see the inside of a courtroom, every lawyer must keep the courtroom in mind.

This means considering the judge and jury in contracts and other transactional documents, and it usually means drafting those documents to avoid the courtroom.

To this end, Florida lawyer, James Martin, put together fifty tips to keep contracts out of court. Here are just a few:

  1. Engage your client in “what if” scenarios.
  2. Be sure that any letter of intent clearly states that it is not a contract, but that it is merely an outline of possible terms for discussion purposes.
  3. Complete each paragraph by writing the contract terms that apply to that paragraph.
  4. Repeat yourself only when repetition is necessary to improve clarity.
  5. Save the drafts as multiple files on your computer. (I do this with every document, rather than tracking changes. I just title the draft with the date I worked on it, adding letters and the name of the drafter or editor as necessary.)

There are a ton of other great tips, including words to avoid, clauses to consider, and how to involve your client.


(photo: El Fotopakismo)


  1. Avatar Nena Street says:

    Truly helpful!

    I have found “what if” scenarios to be essential. In fact, I think they distinguish great lawyers from average ones. As a transactional lawyer, clients look to me to draft and review contracts, but they also rely on my to anticipate problems and protect them from the unexpected. That means that I have to approach each contract as a puzzle and ask all manner of hypotheticals. This is an art that, in my experience, requires practice and can at times seem tedious. However, that tedium fades when you realize that your “what if” scenario just saved your client from potential disaster . . . Do that and your client will certainly continue to seek your counsel.

  2. Avatar Antonio Glenn says:

    I will be new to the legal after I pass the February Bar exam, God-willing. On the questions of “what if”, where do I begin? Is this something I should sit down and ask my client? Or are there resources that I may use to assist me in the thinking of “what if” this fails? Thanks for any feedback.

  3. Sam Glover Sam G. says:

    I always start by asking my client what they are afraid may go wrong, and try to invent some nightmare scenarios of my own.

    If your client cannot imagine anything going wrong, they probably lack imagination, but you can take advantage of more-knowledgeable attorneys in your network to get some ideas.

  4. @Antonio: Read, read, read. CLE materials, reported decisions of contract disputes, media reports of contract disputes, etc. There are also likely treatises about contract drafting that have annotations and discussions. It’s not a substitute for experience, but it may be the best you can do while you’re waiting for your hair to turn gray and / or fall out.

Leave a Reply