Tuesday, January 6, 2015

The Real Deal

I’m a big fan of Ross Guberman and Point Made, so I was excited to receive a new contract drafting book by Guberman and co-author Gary Karl, Deal Struck: The World's Best Drafting Tips. I hesitate to call Deal a book—it’s really a short, user-friendly manual. I love
the bright cover. And the spiral design, which lies flat, is genius. The design allows the reader to easily use Deal while writing or typing, unlike traditionally bound books, which you either have to prop open with a paperweight or hold in one hand while typing with the other.

Deal’s stoplight theme is also user friendly. For those who need a quick answer, Guberman and Karl summarize the content of each page in the margin using red, yellow, and green shapes. Green circles designate recommended language, yellow triangles suggest the need for care, and red squares tell the reader to avoid certain terms.

Roughly the first half of Deal centers on what Guberman and Karl call the “Core Four” provisions of all contracts—covenants, conditions, representations and warranties, and remedies. Guberman and Karl offer helpful tips about when to use and when to avoid common contract terms, such as “shall,” “may,” “will.” 
For example, Guberman and Karl recommend using “shall” for affirmative obligations and “shall not” for negative obligations and avoiding “may not,” “may only,” and similar phrases for negative obligations. In addition, Guberman and Karl offer tips to avoid common drafting pitfalls (“Be sure to include specific remedies for all…contingencies”), discuss often-litigated provisions (“Courts may construe and and or in the conjunctive, in the disjunctive, or in both”), and explain how to avoid drafting ambiguous agreements (“Avoid…hidden ambiguities,” such as “from Monday to Friday,” and “between Monday and Friday”).   

The second half of Deal is devoted to drafting other common contract provisions, including definitions and boilerplate provisions, finalizing drafts and scrubbing previously used templates, and locating model agreements (both free and at cost). Guberman and Karl also offer a list of helpful books, websites, and blogs (such as Ken Adams' excellent Adams on Contract Drafting blog).

You won’t find lengthy sample contract terms or discussions of little-known provisions specific to certain areas of law in Deal. It isn’t a comprehensive drafting treatise—but it isn’t intended to be. Deal shows the reader how to draft common contract terms to advance the client’s objectives while minimizing the likelihood of litigation arising from the contract. Deal is a must-have for young lawyers and those unfamiliar with or unskilled at drafting. It isn’t the only drafting book you’ll need, but it’s one I think you’ll refer to time and time again.     

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