Not bringing a litigator into a transaction pre-closing is like buying a house without first hiring an inspector. Doing so may save some upfront money, but it risks causing serious regret down the road. Litigators can and should be an essential part of deal teams, even where both sides are working collaboratively.

Does a contract actually accomplish what one or both sides think it does?

Particularly where negotiations are fast-paced, iterative, and involve multiple drafters, what a party (and at times, both parties) intended to accomplish with a contractual provision may not actually be what it definitively does in final form. A requirement that a party give another a blanket right of first refusal for certain opportunities may be read variously to reach only some of those opportunities. An unfettered right to deduct from an invoice the costs to repair non-conforming goods may have been intended to be a non-exclusive remedy but could have been drafted to preclude the exercise of other contractual rights. Litigators know how to stress test key provisions to ensure they do what they’re supposed to and propose revisions where they fail. Lawyers who have experience in both attacking and defending ambiguous contractual provisions are equally constructive for working with clients to see that their contracts are clear in the first instance. 

Does a contract account for unwelcome news?

No matter how complex a transaction is, the contract that papers it should account for any eventuality that may impact it. Is a lender protected in the event of a borrower’s bankruptcy? If fulfillment of a contract turns on a non-party’s performance, have the parties to the contract allocated between them the risk of that non-party not performing? If geopolitical events may impact the economic purpose of the contract, have the parties agreed that such events may be considered a force majeure? When not reckoning with ambiguities within a contract, litigators spend much of their careers contending with the consequences of events “external” to a contract that one side or the other thinks relieves it of a given obligation or entitles it to exercise a right. Litigators are the ones who game out those risks and propose solutions to account for them before they transpire. 

Does a contract give me home court advantage? 

If you need to fight over a contract, you want to do so in your forum of choice, with your preferred law and advantageous procedure. All too often, though, parties are doubly surprised to find that not only has their business relationship gone south, but they are left with a procedural disadvantage that can lead to a detrimental outcome. In fact, however, in something as seemingly mundane as a dispute resolution provision, contracting parties can secure for themselves meaningful advantages that reflect and further their core business goals. Is confidentiality paramount? If so, require confidential arbitration. Is speed of the essence? If so, specify a right to seek emergency injunctive relief. Alternatively, is an extended period to allow business engagement likely to helpfully cool temperatures? If so, require a protracted pre-litigation exchange of correspondence and submission to a neutral. Working with a litigator can help identify and realize these commercial needs.

In short, litigators shouldn’t just be the lawyers you unhappily call when a deal is in trouble. They should be there from day one. And just like hiring a home inspector lets you sleep at night without worrying about your ceiling, even if a litigator kicks the tires on a contract and finds that all is sound, you’ll probably take comfort in knowing that you have an agreement you can rely on.