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

Kenneth M. Gorenberg | Barnes & Thornburg LLP

Mark P. Henriques | Womble Bond Dickinson LLP

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

Live Video-Broadcast: June 17, 2024

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

$245.00 3 hour CLE

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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 These include the need to use precise language, removal of unnecessary words and outdated legalese, definition of terms, use of capitalization and the dangers of synonyms.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

Date / Time: June 17, 2024

11:00 am – 2:20 pm Eastern
10:00 am – 1:20 pm Central
9:00 am – 12:20 pm Mountain
8:00 am – 11:20 am Pacific

Closed-captioning available

Speakers

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.

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