- “Notwithstanding anything to the contrary contained in this Agreement,…” this is the ultimate trump clause. By adding this provision, if later or earlier in the document you say something to the contrary, it is automatically trumped by the contradictory statement that comes after this phrase!
- “The [Enter Party’s Name] understand, acknowledges and agrees to ….” I use this phrase when I want to convey that the opposing party is fully aware of what is going on – and they cannot find a way to back out if they do not like the term later when the deal is signed, sealed and delivered.
- “[Enter Party’s Name] shall not unreasonably withhold, condition or delay such [consent/approval]…” This clause is great, when you understand that the other party’s consent/approval is important, but want to make sure that they do not delay, condition or unreasonably withhold such consent or approval.
- “Except as provided in [name document]….” or “Subject to the terms and conditions in [insert document name]…“= I use this phrase when I want to limit my client’s liability in regards to knowing something they should know, or to exclude items contained in another document. I often use this phrase when I am limiting the Lender’s right to go after my client for environmental stuff, or when I want to limit Seller’s liability for knowing environmental conditions on their property. For example, “Except as provided in that certain Phase I, dated April 1, 2016, issued by Environmental Guys, Inc., to the best of Seller’s knowledge, Seller is unaware of any hazardous environmental conditions contained on the property.
- “including, but not limited to, the following…” = I use this phrase when I am making a list of items that I expressly want to include, but I also don’t want to cut my client’s rights off to other items not named.
- “…which consent shall be held in [enter party’s name] sole and absolute discretion…” = this is a great phrase to use when you want your client to obtain the right to consent or deny something the other party is requesting without having a valid reason.
- “To the best of [enter party’s name] knowledge,” when you are making reps and warranties to the other side you always want to sneak this in front of what ever sort of rep/warranty you are giving the other side.
When I first started, the above clauses seemed so FOREIGN and “deal” specific, but then as I turned more and more contracts and agreements, I realized they aren’t deal specific and are usually needed in each and every agreement in some form or fashion. Just by knowing these few phrases, you will have a jump start on making your initial edits, and make who ever hired you incredibly happy to know that he/she hired someone who knows SOMETHING, as opposed to nothing.
Can you think of any other phrases that you come across everyday that are missing in my little list? If so, please feel free to share them below in the comments section.
My first job out of law school was at a midsize law firm – and when I say midsize I mean a small law firm- there were only 20 lawyers. I KNEW NOTHING when I started. My internships did very little in regards to training me on how to be a transactional lawyer– so all of my training was ON THE JOB TRAINING. You can only imagine how long every task took – and how I always thought I was JUST ABOUT TO BE LET GO with every single mistake I made (and, oh god, I made so many). Each time I “fell”, I felt so dumb – but, luckily, I knew I had to get back up and take another crack at it. I remember I use to have this list taped to my desk of “MISTAKES TO NEVER MAKE AGAIN“. I wish I could teach a “PRACTICING LAW FOR NEW LAWYERS 101” class at local law schools or teach a college course on just being a legal intern / paralegal. Seeing as colleges probably don’t want to hire me for the 101 course (just yet), I thought I would share a few tips and tricks on starting your career at a law firm.
- ALWAYS DOUBLE CHECK ALL ENTITY NAMES. I had to learn this by being shamed. An incredibly kind (sarcasm) lender’s counsel taught me that THE SLIGHTEST COMMA AND AND PERIOD contained in an entities name had to mimic what the business entity website said for the entity. (You can double check this by Google-ing: “Business entity search [name the state the entity is formed in/incorporated in]” click on the state’s certain website for searching for such entity and type in the entity’s name. Look at how the entity’s name appears, does it say “Walmart, LLC”, “Walmart LLC” or “Walmart, L.L.C.” THOSE ARE THREE DIFFERENT WAYS TO PRESENT THE ENTITY’S name. Be sure you are using the version stated on the Secretary of State’s website.)
- ADDING AND SUBTRACTING DATES. This website needs to be your best friend: Calendar Counter . When you first start out at any law firm as a transactional attorney, they usually have you calendar dates and summarize a deal in a table format. I remember when I first started, I ACTUALLY COUNTED 60 days on my little calendar by hand, until an older associate told me about the website referenced above.
- WHOM TO CARBON COPY (CC): When you are responding to an email – you respond to everyone on the chain who is CC-ed. Don’t add personal assistants, unless someone in your office confirms otherwise, and just double check if you’re unsure, but do not do it unless you are sure.
- ANTICIPATE QUESTIONS YOUR PARTNER OR SENIOR ASSOCIATE MAY ASK. This will make your life easier, but pretend you are the partner or senior associate, and ask yourself, what you would like to know in regards to the deal, and make sure to know that information, because more often then not, they will want to know. Always know when diligence expires and when closing must happen and when MONEY IS NONREFUNDABLE (AKA: HARD).
- DOUBLE CHECK ALL TIME SCHEDULES & NUMBERS. The dumbest mistake you can make is getting the Purchase Price wrong, or the deposit wrong, when it is blatantly written out in the Letter of Intent (“LOI”) for a deal. After you’re done drafting, literally print out the LOI and cross of everything that you have added, make sure you have a valid reason for not adding the other stuff in the LOI that you did not cross off.
- HOW TO HANDLE COMMENTS TO YOUR WORK. When a certain shareholder/partner provides comments to your work, implement each comment and cross it off or highlight their comment so you know that you have incorporated it into the document. Also, next time you do a similar project for this certain shareholder/partner make sure those stylistic comments (even if you do not agree with them) are incorporated into the document.
- CREATE A SMALL CTRL+F LIST. If you need to delete a defined term, or delete a clause, etc. create a list of items to search for in the document so you know you have adequately removed it after you are done drafting it.
- SUMMARIZE THE DEAL. I know work at a large firm, but at the smaller firm I never summarized the deal. My emails always said “Attached please find the revised clean and redlined copy of the ___________”. At this firm, a shareholder mentioned that clients really liked deal summaries, so its something that I have incorporated into my practice. For example, you do not need to LAY OUT EVERY DETAIL, just picture deal points. “As I understand the deal, the Purchase Price is _____, you have ___ days to conduct due diligence and closing will occur ____ days after the expiration of the due diligence period. If you fail to terminate then your deposit, in the amount of $_____ goes hard, and you have to deposit an additional $______.” For purchase and sale contracts you don’t need to do this as much since there is an LOI for lease agreements I realized summaries are great to make sure the client understands the deal.
- CHARTS. At my last firm, I use to draft “Negotiation Charts”. Basically a table where, I lay out the Section, the revision made by the opposing party and another column for my client’s position. This was a great way to quickly go through all of the changes made by the opposing party and to make sure all the changes are adequately addressed and not left out on our call. During the call, after we discuss each issue, I quickly jotted the client’s position so I knew exactly what change to make. Similarly, after implementing each change, I would place a little check by the section number to make sure I had addressed the issue.
- DRAFT EMAILS. I do this a lot more at my current job then my old job, but I often type up draft emails I would send to the client for the partner/shareholder to review prior to sending it off to the client. I do this at this firm a lot, because I don’t know the client’s yet, and I don’t know what I have the authority to say and what I do not have the authority to say —so, I found that draft emails are great to confirm these issues. A while ago, I emailed a client and told him that he needed to deposit his earnest money, since if he did not the Seller could terminate the contract. I later got an email from the shareholder saying I shouldn’t EVER TELL THE CLIENT that they are in breach of the contract, since it’s alarming, and I should be gentler about it. Had I simply sent him a draft email, I would have saved myself from his stern email – but my bad —you live and learn. So, I definitely WON’T be drafting an email like that again.
- CONFIRM THE FORM OR ASK FOR THE FORM. When you are told to draft a particular item, and the shareholder/partner/senior associate do not provide you with a form, either grab a quick form off of your system and say, “would it be okay to work off of the attached?” or “Do you have a particular form you would like me to use?”. This is key! Sometimes certain clients have certain forms & other times certain shareholders have certain forms – so MAKE SURE TO CONFIRM PRIOR TO GETTING STARTED.
- KNOW THE FACTS/DEAL. At orientation at my new law firm, the leading lawyer said something which I wish I were told when I started my career “As a young lawyer, shareholders/partners/senior associates do not expect you to know the law, however, they do expect you to know the deal. Your job as a young attorney is to know the deal in and out, and as you progress in your career you will learn the law.”
Like all jobs, the practice of law has its ups and downs. Some days you are flying high and the client and your partner love you. Other days, when you receive a draft of your work back, you wonder if you can even read correctly(?). Just remember, it’s the PRACTICE OF LAW: mistakes are bound to happen, just fix it, get back up and make a mental note to NEVER MAKE THE MISTAKE AGAIN.
Peace, Love & Happiness.
PRACTICE POINTS is a series on my blog all about being a young associate at a law firm. I am navigating the seas of law firm culture, etiquette & work product. Join me as I share a few personal stories, so you can know the things I wish I had known when I was you!