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Why your lawyer should always volunteer to draft settlement documents

4/28/2015 | Commercial Litigation Blog, Kaplin Stewart Blog

For as long as I’ve been in practice (26 years and counting), I’ve ALWAYS volunteered to draft settlement documents.

So, one might ask, why do you do that?  Doesn’t it increase your client’s costs?

The short answer is “not in the long run”.

First of all, I would much prefer to bargain up from my draft than downfrom someone else’s.  That way, more of what I want ends up in the final agreement.  Trying to fix an agreement prepared by someone else frequently costs more than if I’d drafted it myself from scratch.

Second, since I come from a computer programming background, I am always on the lookout for the “unprovided-for case”. If an agreement requires a party to do something, it should also say what happens if they don’t do it.  If an agreement anticipates that a particular issue could result in three possible outcomes (“A”, “B” or “C”) from an unsettled issue, the agreement should also say what happens if the outcome is “J” or “42” or something else unexpected. That happens more often than one might think.

Third, because I’m a faster drafter than the average lawyer (my typing experience from computer science has served me well), it doesn’t actually cost more if I draft the agreement, even without considering the problems that good drafting can avoid.

Finally, no client has ever complained about the cost of having me draft a settlement agreement.  Any time a client has inquired as to why I did it, and didn’t let my opponent do so, a brief explanation puts the issue to rest.

Having opposing counsel prepare an important document is a false economy. 


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