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Showing posts from August 16, 2015

A BUSKLAW Newsletter Addendum: The Dangers of Contractual Ambiguity and Acrimonious Contract Negotiations

This is a follow-up to my recent post about contractual "gotchas." Some lawyers think that they're being crafty (and doing their clients a favor) by deliberately introducing ambiguous provisions in a contract. Plain-language expert Ken Adams points to an example from a 2007 post here. And negotiation expert and author Victoria Pynchon points to another example (involving the meaning of "sudden and accidental" from environmental liability insurance policies) from her Negotiation Law Blog.

This gamesmanship strategy is not only ethically questionable but also likely to backfire on the supposedly crafty lawyer because ambiguity often cuts both ways - and courts often interpret ambiguous provisions in a contract against the parties who drafted them.

A lawyer negotiating a contract under a tight deadline may use that pressure as an excuse to leave a disputed provision open to interpretation to meet the deadline. This is risky business - it may lead to controversy down…