The Essentials of Contract Drafting
Date: Nov 17, 2023 9:00 a.m. – 4:00 p.m.
Member Price: $188
Non-Member Price: $235
- Lenné Eidson Espenschied
- Lenne Espenschied Continuing Legal Education, Atlantais a national speaker from Atlanta, Georgia, who has trained thousands of lawyers in the U.S. and Canada in the art of contract drafting through continuing legal education seminars for bar associations, law firms and corporate legal departments. Her passion is helping new lawyers acquire the skills they need to be successful in transactional practice.
Ms. Espenschied practiced law in Atlanta, Georgia for 25 years, and focused on technology and intellectual property matters. She began her legal practice with the firm now known as Eversheds Sutherland and eventually worked as senior counsel in the legal department of Bank of America. Prior to attending law school she was a Certified Public Accountant at Ernst & Young, where she audited Fortune 500 companies and assisted in preparing financial statements and reports for shareholders.
Ms. Espenschied is the author of two books published by the American Bar Association: Contract Drafting: Powerful Prose in Transactional Practice (ABA Fundamentals, 3rd Ed., 2019) and The Grammar and Writing Handbook for Lawyers (ABA Fundamentals, 2011). She was a Professor at Charlotte School of Law and an Adjunct Professor at the University of Georgia School of Law, and taught commercial law, contracts and contract drafting. She is also a contributing faculty member at Thomson/Reuter’s West Legal Ed Center.
Ms. Espenschied received her B.B.A., with high honors, from the University of Georgia and her J.D., magna cum laude, from the University of Georgia School of Law, where she served on the Editorial Board of Georgia Law Review and was a member of Order of the Coif. She also won a prestigious award as a teaching assistant in the UGA Terry College of Business.
Good writing doesn’t necessarily translate to good contract drafting. This how-to drafting program is for all lawyers who draft contracts in any area of transactional practice, including corporate, mergers and acquisitions, business law, and intellectual property, to name just a few. The program begins with a discussion of the characteristics of excellent contract drafting, revealing outside forces that may dictate the way specific terms of the agreement are drafted or interpreted. It then moves into practical tips for negotiating contracts and drafting key provisions, best practice for drafting techniques and strategies, and then handling dispute resolution, gender, numbers and amendments.
You will leave with concrete tips that you can implement immediately to draft contracts with confidence.
- Negotiating and Drafting Key Contract Provisions;
- Understand the meaning of, and negotiating strategies for, key provisions and boilerplates;
- Negotiate and draft a rock-solid indemnification provision, even in low leverage situations;
- Appropriately allocate risk between the parties using clear, simple language;
- Use the right words to create the intended legal consequences;
- Avoid unintentionally ambiguous phrasing traps; and
- Minimize risks associated with drafting in the cloud.
About our Presenter:
Lenné Eidson Espenschied has earned her status as one of the top 2 contract drafting speakers in the country by continually striving for excellence and providing innovative, practical skills-based training for transactional lawyers. She practiced law in Atlanta, for 25 years, focusing on corporate and transactional representation of technology-based businesses. She is the author of two books published by the American Bar Association: Contract Drafting: Powerful Prose in Transactional Practice (ABA Fundamentals, 3rd Ed. 2019) and The Grammar and Writing Handbook for Lawyers (ABA Fundamentals, 2011). After graduating from the University of Georgia School of Law magna cum laude, Ms. Espenschied began her legal practice at the firm now known as Eversheds Sutherland; she also served as senior counsel in the legal department of Bank of America before opening her own law office. As a law professor, Ms. Espenschied taught commercial law, contracts, and contract drafting. Her passion is helping lawyers acquire the skills they need to be successful in transactional practice.
- 9:00: Welcome and Overview of Topics
- 9:05: The Characteristics of Excellent Contract Drafting
What makes for excellent drafting? This session will examine that question and:
- Identify the characteristics of excellent drafting;
- Understand the context of legal drafting; and
- Highlight the components of a contract.
- 10:35: Break
- 10:50: Negotiating and Drafting Key Provisions
The most important provisions in your client’s contracts also present the most opportunity for conflict – in negotiating and in performing the agreement. This session will provide practical tips for negotiating and drafting these key provisions:
- Representations and warranties;
- Express warranties, limited warranties, and disclaimers;
- Warranty of Merchantability;
- Warranty of Fitness for a Particular Purpose;
- Limitations of Liability;
- Liquidated Damages; and
- Term and termination clauses.
- 12:20: Lunch
- 12:50: Drafting a Rock-Solid Indemnification Provision; Allocating Risk
Indemnification is a key mechanism for shifting risk in contracts. Don’t start drafting (or editing) without some forethought and strategic planning. This session will take you through:
- 6 Types of indemnification;
- 7 Negotiable variables in an indemnification provision;
- How to structure the text of an indemnification provision;
- What really matters in allocating risk; and
- How to track money and alternative incomes.
- 2:20: Break
- 2:30: Drafting Definitions, Creating Specific Legal Consequences, Handling ADR, Gender, Numbers, and Amendments
Flawed definitions account for 25% of ambiguous contract cases, and lawyers often fail to think strategically about creating specific legal consequences. This segment of the day will tackle important sources of ambiguity in contracts, and provide helpful tips for miscellaneous contract topics:
- Best practices for defined terms;
- How to create specific legal consequences;
- ADR methods;
- Effective contract review; and
- Ethical considerations for drafting in the cloud using web apps like Google Docs and iCloud.
- 4:00: Adjourn