Contract Drafting

You’ve Got Control of the Document; Now What?

June 20, 2022

As I’ve written before (see Control the Document to Control the Deal), the party to a negotiation that controls the contract controls the discussion and can exert extra leverage in the outcome.

Therefore, in order to gain that control in any deal, you must be the party that presents the first draft of the document.

But you need to think deeper. Beyond controlling the terms of the deal, what else should you be using the contract to accomplish?

For example, in connection with a negotiation of an exclusive contract, what terms might create problems for you, or, alternatively, lubricate the way, in regard to future business strategy? In other words, it’s not just the terms of the hypothetical exclusive contract, items such as coverage and stipend support, that you should be setting up, it’s far, far more.

You don’t know the future, of course, in the sense of total prescience, but you do have the ability to discern potential strategies, potential futures, so to speak, with enough clarity to not purposefully foreclose them yourself when controlling the contract.

Yes, this ends up costing more up front in time, effort, and legal fees (there’s the disclosure that I have a horse in the race). But paying even a factor of two or three times more now is not even a rounding error in what failing to consider what you might do in the future will cost you later. Don’t be penny-wise and ton foolish.

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