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

Kenneth 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 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 | 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.

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