Nit-picking or Significant Contract Choices?-part I

• Publication year: 2002
• Pages: 43
• Citation: Vol. 31 No. 2 Pg. 43

31 Colo.Law. 43 Colorado Lawyer 2002.

2002, March, Pg. 43. Nit-picking or Significant Contract Choices?-Part I

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43

Vol. 31, No. 2, Pg. 43

The Colorado Lawyer
March 2002
Vol. 31, No. 3 [Page 43]

Departments
The Scrivener: Modern Legal Writing
Nit-picking or Significant Contract Choices? - Part I
by K. K. DuVivier
2002 K.K. DuVivier

Request for feedback by March 11, 2002: We hope that this column generates discussion about whether proposals of alternative language in a contract are necessary, advisable or just nit-picking. If you have experience and opinions on this topic, share them with us by March 11, 2002, so they may be addressed in the next Scrivener column. Please e-mail kkduvivier@law.du.edu or write to K.K. DuVivier, University of Denver College of Law, 1900 Olive St., Denver, CO 80220

K.K. DuVivier is an Assistant Professor and Director of the Lawyering Process Program at the University of Denver College of Law

Stanton D. Rosenbaum, of Isaacson, Rosenbaum, Woods & Levy, P.C., recently wrote to tell me about one of his clients, a landlord, who truncated negotiations with a potential tenant because of what he characterized as "inconsequential revisions" or "nit-picking" of his proposed lease. "If this was the type of attorney his tenant chose, he wondered what the tenant would be like to deal with in the future. Accordingly, he found a new tenant. I wonder sometimes whether some lawyers feel they are paid to break deals rather than make deals," wrote Rosenbaum.

Because I practiced primarily as a transactional lawyer for the eight years before I started teaching, I can sympathize with both sides of this dilemma. In practice, I ran across two alternative approaches to leases or contracts: the short "gentlemen's agreement"1 and the comprehensive agreement.

The Gentlemen's Agreement

Some of the executives my firms represented made gentlemen's agreements. These contracts relied more on the trust that came from a handshake between the parties than on anything written on a piece of paper. Consequently, these executives asked their attorneys to draft short, sometimes one-page, leases or contracts to memorialize the parties' handshake agreement. They felt any attempt to get into details at this point was a waste of time and attorney fees.

In his letter, Rosenbaum quotes a good faith rule that forms the basis for such gentlemen's...