Where A Litigator's Advice Can Improve Agreement Drafting

Law360 (November 6, 2019, 4:03 PM EST) -- Virtually any litigator who handles contract disputes likely has thought on occasion: “I wish they’d consulted me when they drafted this provision.”

But short of having every provision of every agreement reviewed (a step that may be warranted for some transactions but would amount to gross overkill for many), how can transactional counsel and in-house lawyers determine when to consult a litigator at the drafting stage?

It is obviously not possible to identify in advance every contractual provision that might be the subject of litigation. In a complex transaction, the possibilities could be endless. But certain kinds of provisions — such...

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