Contract Drafting: What the best lawyers know (2024 Edition)

Kenneth M. Gorenberg
Mark P. Henriques
Danielle E. Cohen
Kenneth M. Gorenberg | Barnes & Thornburg LLP
Mark P. Henriques | Womble Bond Dickinson LLP
Danielle E. Cohen | Tesser & Cohen, Attorneys at Law

On-Demand: June 17, 2024

This class is included in the Federal Bar Association CLE Pass

Subscribe to Federal Bar Association CLE Pass...
Co-Sponsored by myLawCLE
Get this course, plus over 1,000+ of live webinars.
Learn More
MCLE Credit Information:

Select Your State Below to View CLE Credit Information

3 hour CLE
Tuition: $245.00
Training 5 or more people?

Sign-up for a law firm subscription plan and each attorney in the firm receives free access to all CLE Programs

Program Summary

Session I - Contractual indemnification, insurance, and limitation of liability provisions – Kenneth M. Gorenberg

In entering contracts almost every day, businesses of all sizes and industries frequently flip right past the indemnification, insurance, and limitation of liability provisions as mere boilerplate. This webinar will help you understand that these risk allocation provisions can be as important as price and other deal terms. You will learn some of the pitfalls and opportunities to consider in these provisions. After this program, you will be in a better position to draft and negotiate provisions that align with your business objectives, are clear to the parties, and will be enforced by the courts.

Key topics to be discussed:

  • How each of these provisions can allocate risk
  • Buzzwords and other drafting considerations
  • Challenges to enforceability
  • Cautionary tales

Session II – Drafting clear and enforceable contracts - Mark P. Henriques

This Session presents the process for preparing contracts that are clear and legally enforceable. We start by discussing general drafting principles. These include the need to use precise language, removal of unnecessary words and outdated legalese, definition of terms, use of capitalization and the dangers of synonyms. We also cover proper sentence structure, punctuation, and formatting tips. The webinar will review the use of boilerplate terms and provisions, including the pros and costs of using them. We also review how and when to use form contracts.

After discussing these principles, we will discuss how good drafting can make your contracts more enforceable in court. We will cover how to properly document the “meeting of the minds” by defining performance with specificity, establishing due dates and crafting the correct payment terms. The webinar will review best practices regarding specification sheets, exhibits, and other frequent contract attachments. You will understand the different types of pricing models that can be used in your contracts, including the risks and pitfalls of the different approaches.

This session provides a litigator’s perspective on dispute resolution clauses, including a discussion of when arbitration is a better option than litigation. We will also review the idea of tiered dispute resolution provisions and the importance of forum selection and choice of law provisions. We will review the meaning of indemnification and discuss the types of clauses often used in contracts. We will also discuss best practices for contract modification, including a review of the “change order” process commonly used for construction contracts. We will identify risks with the increasingly popular “unilateral modification” language. It will conclude with advice on what to do when contract disputes do emerge, including the proper time to get legal counsel involved, when to implement a litigation hold, and the value of Early Case Assessment.

Key topics to be discussed:

  • General drafting principles
  • Enhancing enforceability
  • Dispute resolution clauses
  • Handling contract disputes

Session III - Drafting commercial construction contracts from the owner and contractor perspective - Danielle E. Cohen

Many parties are not aware of critical contract provisions that can substantially affect their rights during a project and upon termination. This session will discuss contract drafting fundamentals, including termination provisions. We will also provide some insight into what contract language should be included to protect respective parties’ rights and interests. The discussion will include critical information related to parties’ rights related to payment and defective work.

Key topics to be discussed:

  • Contract drafting from the owner perspective
  • Owner protections: payment/performance bonds, lien waivers, discharge of mechanic’s liens
  • Contract drafting from the contractor perspective
  • Drafting considerations related to delay, notice of defects and opportunity to cure

This course is co-sponsored with myLawCLE.

Closed-captioning available

Speakers

Kenneth-Gorenberg_Barnes-Thornburg-LLP_FedBarKenneth M. Gorenberg | Barnes & Thornburg LLP

Kenneth M. Gorenberg is a partner in the Chicago office of Barnes & Thornburg LLP, a national firm of more than 20 offices and 700 lawyers. Ken represents businesses in insurance coverage matters, as well as in product liability and commercial litigation. Admitted to practice in 10 federal courts, he has tried cases and argued appeals across the country. Whether litigating or counseling, Ken always focuses on the business problem or opportunity at the heart of the matter. He partners with his client to create and implement a strategy tailored to the specific client and matter. Ken earned his undergraduate degree from the University of Pennsylvania and his law degree from the University of Chicago. He was elected as a Fellow of the American College of Coverage Counsel in 2014 and has been recognized by Best Lawyers in America for his work in insurance law every year since 2021.

 

Mark-P.-Henriques_Womble-Bond-Dickinson_FedBarMark P. Henriques | Womble Bond Dickinson LLP

Mark is a trial attorney focused on pragmatic resolution of complex business disputes. He has successfully litigated cases involving construction, real estate, fraud, unfair trade practices, class actions, non-compete and non- disclosure agreements, and breach of contract. He has experience in state and federal courts in both North and South Carolina. Mark has prevailed in numerous trials, arbitrations, and mediations. Mark has served as first chair in more than nine jury trials, five of which lasted a week or more. He has successfully argued cases before the Fourth Circuit Court of Appeals and the North Carolina Supreme Court.

Mark’s strength lies in his ability to quickly focus on key issues and then develop a comprehensive strategy to win the case through discovery, mediation/negotiation, motions practice and trial. His organized, engaging presentation skills allow him to explain even the most complex or technical factual patterns to a mediator, arbitrator, judge, or jury. Mark’s clients include leaders in education, banking, consumer finance, retail, pharmaceuticals, health care, information technology, construction, and real estate. Mark helps his clients solve the “better, faster, cheaper” challenge.

A member of the Sedona Conference (WG1-E-Discovery, WG6-International EIectronic Information Management, & WG11-Data Security and Privacy Liablity), the Association of Certified E-Discovery Specialists (ACEDS) and the firm’s BullDox e-discovery team, Henriques understands the complex legal and cost issues surrounding e-discovery, litigation holds and ESI collection, processing, review, and production. As an experienced e- discovery lawyer, he understands how the correct technology (whether in- house or hosted externally with a vendor) can save money and find the “hot” documents that are outcome determinative. Mark’s combination of trial and e-discovery experience make him a frequent choice to serve as local counsel to clients and Lex Mundi affiliates worldwide. As an education lawyer, Mark advises and represents public and private educational institutions, including the Cabarrus County Board of Education.

 

Danielle E. Cohen_FedBarDanielle E. Cohen | Tesser & Cohen, Attorneys at Law

Danielle E. Cohen is a partner at Tesser & Cohen, where she concentrates her practice on construction litigation. She has represented a diverse range of construction clients, including owners, general contractors, subcontractors, and material suppliers. She has been involved in both prosecuting and defending claims on private and public projects in New Jersey and New York, including delay claims, construction lien and mechanics lien foreclosure actions, defective work claims, bond claims, Prompt Payment Act claims, and trust fund issues. Ms. Cohen is listed in the New Jersey editions of Super Lawyers, Rising Stars from 2014 through 2021 and in the New Jersey editions of Super Lawyers from 2022 through 2024 in the field of construction law. Ms. Cohen is the immediate past Co-Chair of the New Jersey State Bar Association, Construction Law Section.

Agenda

Session I – Contractual indemnification, insurance, and limitation of liability provisions | 11:00am – 12:00pm

  • How each of these provisions can allocate risk| 11:00am – 11:15am
  • Buzzwords and other drafting considerations| 11:15am – 11:30am
  • Challenges to enforceability| 11:30am – 11:45am
  • Cautionary tales| 11:45am – 12:00pm

Break | 12:00pm – 12:10pm

Session II – Drafting clear and enforceable contracts | 12:10pm – 1:10pm

  • General drafting principles | 12:10pm – 12:25pm
  • Enhancing enforceability | 12:25pm – 12:40pm
  • Dispute resolution clauses | 12:40pm – 12:55pm
  • Handling contract disputes | 12:55pm – 1:10pm

Break | 1:10pm – 1:20pm

Session III – Drafting commercial construction contracts from the owner and contractor perspective | 1:20pm – 2:20pm

  • Contract drafting from the owner perspective | 1:20pm – 1:35pm
  • Owner protections: payment/performance bonds, lien waivers, discharge of mechanic’s liens | 1:35pm – 1:50pm
  • Contract drafting from the contractor perspective | 1:50pm – 2:05pm
  • Drafting considerations related to delay, notice of defects and opportunity to cure | 2:05pm – 2:20pm
More CLE Webinars
Trending CLE Webinars
The Corporate Transparency Act Reporting Obligations
The Corporate Transparency Act Reporting Obligations
Law Offices of Jonathan H. (Jason) Warner, P.A.
On-Demand
IRS Penalty Abatement Made Easy
IRS Penalty Abatement Made Easy
Green & Sklarz, LLC
On-Demand
Gun Trust Law (2024 Edition)
Gun Trust Law (2024 Edition) Wed, October 23, 2024
On-Demand
Live Replay
Revocable Living Trusts from Start to Finish (2024 Edition)
Revocable Living Trusts from Start to Finish (2024 Edition) Wed, October 30, 2024
On-Demand
Live Replay
Lawyers Serving on Boards
Lawyers Serving on Boards Thu, October 17, 2024
On-Demand
Live Replay
Essential Accounting Principles Every Attorney Should Know
Essential Accounting Principles Every Attorney Should Know
LaPorte CPAs & Business Advisors
On-Demand
Creating a Trial Notebook: From A - Z (Including 1hr of Ethics)
Creating a Trial Notebook: From A - Z (Including 1hr of Ethics) Fri, October 18, 2024
On-Demand
Live Replay
Tax Opportunity Zones (2024 Edition)
Tax Opportunity Zones (2024 Edition)
Blank Rome LLP
On-Demand
Litigating Libel and Defamation Cases
Litigating Libel and Defamation Cases
Callahan & Blaine, APLC.
On-Demand
Will Drafting 101 (2024 Edition)
Will Drafting 101 (2024 Edition)
Partner, Davenport Evans Lawyers
On-Demand
Federal Indian Law 101 (2024 Edition)
Federal Indian Law 101 (2024 Edition)
Holland & Knight LLP
On-Demand
Upcoming CLE Webinars
Charitable Solicitation Laws
Charitable Solicitation Laws Tue, October 15, 2024
Live Webcast
Inside Secrets to Getting Rid of Tax Penalties (2024 Edition)
Inside Secrets to Getting Rid of Tax Penalties (2024 Edition) Wed, October 16, 2024
On-Demand
Live Replay
Medical Records A-Z: What attorneys need to know (2024 Edition)
Medical Records A-Z: What attorneys need to know (2024 Edition) Wed, October 16, 2024
On-Demand
Live Replay
Lawyers Serving on Boards
Lawyers Serving on Boards Thu, October 17, 2024
On-Demand
Live Replay
Creating a Trial Notebook: From A - Z (Including 1hr of Ethics)
Creating a Trial Notebook: From A - Z (Including 1hr of Ethics) Fri, October 18, 2024
On-Demand
Live Replay
Maritime Finance 101
Maritime Finance 101 Wed, October 23, 2024
Live Webcast
Gun Trust Law (2024 Edition)
Gun Trust Law (2024 Edition) Wed, October 23, 2024
On-Demand
Live Replay
Litigating Defamation Cases (2024 Edition)
Litigating Defamation Cases (2024 Edition) Thu, October 24, 2024
Live Webcast
Real Estate Law Fundamentals
Real Estate Law Fundamentals Tue, October 29, 2024
Live Webcast
Final Accounting: Estate administration essentials
Final Accounting: Estate administration essentials Tue, October 29, 2024
Live Webcast
Judicial Misconduct & Regulating Judicial Ethics
Judicial Misconduct & Regulating Judicial Ethics Wed, October 30, 2024
Live Webcast