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  Write for the Judge and Jury

  31. Assume the reader is a knowledgeable layman. If your writing is so clear that a layman could understand it, then it is less likely it will end up in court.

  32. Define a word by capitalizing it and putting it in quotes. Capitalizing a word indicates that you intend it to have a special meaning. The following are two sample clauses for defining terms:

  Wherever used in this contract, the word "Goods" shall mean the goods that Buyer has agreed to purchase from Seller under this contract.

  Buyer hereby agrees to purchase from Seller ten (10) frying pans, hereinafter called the "Goods."

  33. Define words when first used. Instead of writing a section of definitions at the beginning or end of a contract, consider defining terms and concepts as they first appear in the contract. This will make it easier for the reader to follow.

  34. Explain technical terms and concepts. Remember that the parties might understand technical jargon, but the judge and jury who interpret and apply the contract do not. Therefore, explain the contract's terms and concepts within the contract itself. Let the contract speak for itself from within its four corners.

  Keep Your Client Informed While You Write

  35. All contracts should come with a cover letter. This gives you a place to instruct your client on how to use and sign the contract.

  36. Tell your client the ideas that come as you write. Many ideas will occur to you as you write: things that could go wrong with the deal, things that might happen in the future, things that happened in the past, ways to structure things better. Write these in your letter to the client.

  37. Inform your client of the risks. Writing a letter to the client as you write the contract is the perfect way to inform the client of the risks and rewards of entering into the contract. Frequently, problems do not become apparent until time is spent trying to word a contract.

  What To Do After the First Draft Is Written

  38. Check spelling, paragraph numbering, and cross references both manually and with your word processor's spelling and grammar checker. This almost goes without saying today, especially since Microsoft Word now checks your spelling and grammar as you type. (Unfortunately it also changes "per stirps" to "per stupid" if you fail to watch it closely.) And now there are even computer programs that check contract documents for undefined terms. DealProof is packaged with Corel WordPerfect for law offices, and DocProofReader is available for download for MS Word 97 and 2000.

  39. Let your secretary or paralegal read it. Not only will your staff frequently find spelling and grammar errors missed by your word processor's spell checker, but they will find inconsistencies and confusing areas that you missed when drafting.

  40. Stamp "Draft #1 6/22/2000" on it. This may be the first of many drafts, so avoid confusion early by numbering and dating all drafts at the top of the first page. It is also a good idea to write "DRAFT" across the face of each page to preclude the possibility of an impatient client signing a draft rather than waiting for the final version.

  41. Let your client read it. Letting the client in on reading the first draft assures that your drafting will stay in tune with the client's wishes.

  42. Save the drafts as multiple files on your computer. If you save the first draft on your computer as two files, you will have one file identified as the first draft and the other identified as the current version. This can be done by naming the current version "contract" and the first draft as "contract.d1." Then, subsequent versions can be named "contract.d2", "contract.d3," etc., where the "d" in the extension indicates draft. (Of course, if you're not using WordPerfect 5.1 for DOS, as I do, you can use long file names to show the contract name, draft number and draft date, such as "Contract Smith Jones draft 2 dated 6 22 2000.")

  43. Compare the current version to prior versions. If you save draft versions, it is very easy to compare one version to another using the word processor's compare feature or using the CompareRite computer program. When you compare "contract.d1" to "contract.d2", save the comparison as "contract.c21" and print it to show the client what changes were made.

  How to Print and Sign the Final Draft

  44. Print the contract on 24 pound bond paper instead of 20 pound copier paper. Using a heavy bond paper will make it easy to tell the original contract from copies. It will also last longer.

  45. Print on pages using the same paper, and if pages are changed, reprint the document using the same paper. This will avoid an argument that pages were substituted after the contract was signed.

  46. Sign the contract in blue ink, not black ink. This, too, will make it easier to differentiate the signed original contract from photocopies.

  47. Initial every page of the contract. Having each party initial each page of the contract will make it less likely that anyone could claim a page was changed after the contract was signed.

  48. Identify the parties and witnesses who sign by providing blank lines below their signature lines for their printed names and addresses. This will make it easier to find the witnesses if the contract is contested. And remember to include two witnesses for commercial leases.

  49. Be sure that corporate officers include their titles, the corporation name and the word "as." Failure to do this can result in personal liability of the officer. The proper way to sign in a representative capacity is as follows:

  ABC Corporation, a Florida corporation


  John Jones, as its President

  50. Add a notary clause that complies with the notary law. The notary acknowledgement in Appendix B is such a clause.

  Concluding Advice

  If these 50 tips don't keep your contracts out of court, try mastering Strunk & White's Elements of Style*. I hear it's real handy in appellate work.

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