“There are many people out there giving advice on contract drafting and negotiating. I’m one of them. The fact is that each of us developed our views and knowledge from the different ways we learned about contracts. Some of us (like me) learned contracts from drafting and negotiating for companies and clients. We know a lot about the practical realities but not as much about the case law.  Some learned from litigating contract cases. They spent a lot of time studying cases and seeing how contract disputes play out but may not be as familiar with the negotiation side. And others of us lear ..read more

  When your customer is pushing hard to leave all indemnities uncapped, what do you say? How can you effectively argue to add limits to that obligation?  In this video, Laura Frederick explores her approach in these situations. She gets real about the challenges and how to decide what limits might be ok and the importance of knowing your risk tolerance ..read more

“The general rule is that the obligations in a contract exist only during the contract's term. However, most contracts include rights and obligations that the parties want to continue.  But which ones should survive?  Some people sidestep naming specific provisions by saying, “Any provision that should by its nature be deemed to survive does survive.”  I am not a fan of this approach.  It provides little guidance and sets the parties up for a fight about what is included.  My approach is to start by asking, "What still may need to happen after the contract terminates ..read more

In this three-minute video, Laura Frederick explains the risks associated with indemnification for negligence. She cautions against it and recommends a different approach. Check it out on YouTube and subscribe to receive notice of her future videos ..read more

“Except as otherwise provided in this Agreement,…” is a favorite of many lawyers, but I’ve found it often used in a confusing and vague way. Think for a minute about how broad that language is. Adding this phrase means whatever statement or obligation follows is now secondary to some other unknown provision elsewhere in the contract. Now, I have no problem if we reference a specific provision (“Except as provided in Section 1.2”). We can agree a particular provision should trump another one. Or if there is only one interpretation. But in many cases, this phrase is randomly dropped in a place i ..read more

How to Contract just announced two new workshops coming in June! Learn more about these events here ..read more

“It happens to all of us. It often starts with the other side making a statement of fact. “Patent exhaustion means that no license is required here” or “The laws in my country do not allow venue in the U.S.” Sometimes it is hogwash, but sometimes it is not. At that moment, you don't know which. As a new lawyer, I'd bluff my way through. I'd do my best not to let on that I didn't know and quickly say, “Let me talk to my client about it offline.” I'd then go into deep research mode to figure it out. Now, rather than pretend that I know, I admit my ignorance and ask the other side to explain it t ..read more

“Some negotiations are just tough.  ➡ The contract is imperfect because we don't have time to fix everything.  ➡ The counterparty won't see reason so we have to approve provisions that we don't like.  ➡ We have to concede on points that we know are wrong or make no sense to get the deal done.  These tough negotiations are a reminder that our job often is the epitome of it is good enough. And that is a really tough for lawyers and professionals to accept. And sometimes, it feels like it is too much to bear. Our frustration and powerlessness create stress, anxi ..read more

“Yes, we work on contracts.  But that is often just a small part of the job. It is the equivalent of saying a CPA's job is math.  We are first and foremost risk mitigators.  Our job is to learn everything we can about the types of risks we face with our business and counterparties and then draft, negotiate, and manage contracts to make it not so risky.  To do that, we need to understand pretty much everything about the company. And when I say everything, I mean everything.  We do this so we can help steer the deals to provide the best protection possible.  We have ..read more

“Yes, we work on contracts. But that is often just a small part of the job. It is the equivalent of saying a CPA's job is math. We are first and foremost risk mitigators. Our job is to learn everything we can about the types of risks we face with our business and counterparties and then draft, negotiate, and manage contracts to make it not so risky. To do that, we need to understand pretty much everything about the company. And when I say everything, I mean everything. We do this so we can help steer the deals to provide the best protection possible. We have to understand the products - the en ..read more