Most of what attorneys know about drafting contracts they learn from other people’s mistakes. It starts in law school, where aspiring lawyers are taught contract law from casebook excerpts of appellate opinions that form a confusing set of rules used to interpret a contract when its meaning is not clearly expressed in the document. While useful to litigators with time to do research after a drafting error is made, this maze of rules, and the statutes that implement or amend them, are of little utility to the transactional attorney responsible for drafting the contract in the first place. Lacking in the literature, at least until 2003, was a comprehensive resource to guide and inform lawyers responsible for drafting the contracts in a way that avoids mistakes, subsequent intervention by a court, and the client-relations disaster that follows. This void was filled in 2003, with the MSBA’s publication of Contract Drafting and Review for the Maryland Lawyer by Charles A. Borek, JD, MBA, CPA. Written and arranged as a practice tool, but researched and annotated like a treatise, Mr. Borek offered the Maryland lawyer an encyclopedic reference for drafting any type of agreement. It has become a staple on the bookshelves of Maryland lawyers, law firms, and in-house counsel.
The MSBA is pleased to announce the release of Mr. Borek’s Contract Drafting and Review for the Maryland Lawyer (MSBA 3rd Ed. 2020), with updates that incorporate significant legal developments since its last publication in 2015. The Third Edition provides the transactional lawyer an explanation of, and options for, each part of a contract document, from the title to its signature requirements, and everything in between. Designed to help avoid the pitfalls inherent in uncritically repurposing old contract forms to cover new situations, Contract Drafting and Review for the Maryland Lawyer, 3d Edition, explains the purposes that underlay each section of a contract, and its relationship to the document as a whole. It exposes traps for the unwary, provides scores of practice tips, and offers hundreds of sample clauses, definitions, and contract provisions for use in a variety of situations.
Contract Drafting and Review for the Maryland Lawyer contains separate chapters that cover contract recitals, definitions, representations and warranties, operative provisions, covenants and conditions, remedies, dispute resolution, and a “smorgasbord of boilerplate provisions” found at the end of the document regarding amendment, assignment, choice of law, integration, notice, and the like. When and how to use contract recitals as operative provisions, and the consequences of inaccurate recitals at the beginning of the document, receive the same detailed attention as do questions regarding how, whether, and when to employ testimonium clauses, electronic signatures, or signatures under seal at the end. It is a most comprehensive work, unrivaled for the depth and breadth of coverage in this fundamental area of practice.
Remarkable for its detail, Contract Drafting and Review for the Maryland Lawyer is logically arranged and indexed for ease of access to guidance for any drafting or review concern. The chapter on basic contract architecture, elements and drafting styles, for example, discusses not only the elements essential to any written contract, but also its layout, typeface and font selection, and other matters of style that might unwittingly have substantive impact and open the door to controversy. Likewise, the chapter on definitions begins with a general discussion of their importance before moving to a discussion of the types of definitions found in different types of contracts, when an ordinary meaning might give way to a technical meaning, and how to draft clear and concise definitions to avoid a later challenge that might upset the parties’ intentions. More than 80 context-specific samples of contract definitions are provided and explained in this chapter alone.
New to the Third Edition is its discussion of recent case law concerning jurisdiction and venue provisions; the distinction between broad, vague and ambiguous terms; and the use and interpretations of conjunctive and disjunctive terms. Retained from earlier editions is the checklist for drafting and reviewing contracts, an invaluable resource that helps to ensure that nothing is overlooked in the drafting process. The latest edition also includes an updated table of statutory and common law authorities, and an updated bibliography, arranged by subject, that directs the user to additional sources for substantive insight, drafting tips, and sample forms. The bibliography includes, for example, references to additional materials on accounting, banking and finance, business acquisitions, construction, dispute resolution, health care, insurance, intellectual property and software, loan documents and real estate, to name but a few.
There is no more current and complete work available for the Maryland lawyer charged with drafting agreements that clearly express their clients’ intent in a manner that avoids disputes and subsequent intervention by the courts. Written by a Maryland transactional lawyer for the Maryland transactional lawyer, Contract Drafting and Review for the Maryland Lawyer (MSBA, 3rd Ed. 2020) is an essential resource for any practitioner who writes or reviews contracts. Its thorough coverage of the drafting and review process, and the exhaustive research behind it, also make it an important tool for the commercial litigator handling cases involving contract interpretation, or the drafter’s pre-execution standard of care. Contract Drafting and Review for the Maryland Lawyer (MSBA, 3rd Ed. 2020), is available here.