Introduction to Drafting Agreements
C. Starting to write up the Agreement – where do you start?
The first decision will be with regard to what format to use. Is a letter agreement sufficient, or is a full length contract called for? Are any side agreements going to be necessary? Is a very formal tone appropriate, or is the agreement more "friendly"?
Have you got copies of any similar agreements with other parties that could form a starting point in developing the outline of the agreement and help you to brainstorm about what your agreement may need to include?
A word about precedents:
Don't follow precedents or example documents slavishly. Be open to tailoring your agreement to fit the needs, relationship and intention of the parties. However, also be aware that what may sound like "legalese" or seem archaic, repetitive or unnecessarily complex boilerplate contract language in a document you are using as a precedent may actually have been developed as a result of litigation where the courts have ruled on the validity or enforceability of certain types of clauses or entire contracts based on the presence or absence of certain wording.As well, precedents may be outdated and may not reflect the current state of the law. Be sure you check any references to legislation carefully and ensure that the legislation applies to you or your particular situation. New developments in case law may require specific wording to be added or deleted from your precedent document, as the courts may have ruled on certain language and found it vague, unenforceable or otherwise lacking.
As the drafter, you should be aware of not only your own needs and expectations, but those of the other party. Any needs or requirements of the other party that are not adverse to your party's interests or for any other reason problematic should be included in the first draft when you know about them. This is a matter of good faith that will assist you when negotiating and will likely help the parties come to a final agreement more quickly. Try to put yourself in the shoes of the other party. If you were being presented with the agreement as you have drafted it, what would your reaction be?
When you must take a hard line to protect your party's interests, be prepared to be able to discuss the rationale for this stance - you will almost certainly be asked to do so during negotiations and it is helpful to be able to articulate a thoughtful, logical and well-reasoned position from the outset. It may help the other party realize that this is not a point you can concede.
That being said, if part of your position is totally unacceptable to the other party, be open to the possibility that there may be another way to meet both parties' needs before the deal simply collapses.
A win-win agreement is less likely to be the subject of problems down the road, requiring costly enforcement measures.
Be sure to consider as many areas as possible where things could go wrong. You need to be able to anticipate problems and to build in dispute resolution mechanisms and/or remedies for breaches of the agreement where appropriate. Although one always hopes that things will go exactly as planned, there is a vast body of litigation evidencing the multitudinous ways agreements can break down.
