Timothy Atkin, partner at Maddocks, will be speaking at the Australasian Lawyer Contract Law Masterclass in March. He reveals the biggest mistakes in contract drafting.
What do you love about contract law?
Contract law is not only something that affects businesses involved in commercial transactions, it is something that completely underpins our society from catching a train to buying a house.
Why is knowledge of ‘Advanced contract negotiation strategies: The art of getting what you (both) want’ so important for lawyers at the moment?
Often, contract lawyers think their primary role is to provide clients with advice on the terms that will provide clients with the strongest commercial and legal outcome in a negotiation of commercial and contractual terms.
In fact, often the most useful and valuable advice that contract lawyers can provide is to help clients understand where roadblocks can be overcome by skilful (not crafty) drafting, or by giving up terms of limited utility for them.
The added benefit is that often both parties can achieve what they want in the transaction. That reduces the risk of later disagreement ending up in a costly dispute.
In your experience, what is the biggest mistake that people make when drafting contracts.
Not turning their mind to how the words might be interpreted on their face, sometime later, by a person not involved in the transaction (be that a new executive, a disputes lawyer or a judge) and with no knowledge of what the parties and their lawyers intended the words to mean. The parties’ subjective intentions are largely irrelevant to how a term comes to be construed by a court. The practical question for the drafter needs to be “how will this clause be interpreted by a person with no knowledge of the transaction who picks up the contract cold at a later time”.
What’s the best advice you’ve ever been given (work or personal)?
Never lose your temper in a meeting or in correspondence. A short tempered lawyer in any context is an ineffective one. The most effective way to respond to rudeness at a meeting or in correspondence is to rise above it with firm courteousness.
What do you think is the most significant area of development in terms of contract law at the moment?
The question of the existence and content of a general theory of goodwill applying to all commercial contracts. It is an issue crying out for consideration by the High Court.
What do you love about your job?
The intellectual challenge of understanding legal problems, and then coming up with solutions for them, is immensely rewarding.
What’s the strangest case you’ve ever worked on/been involved with?
Last year I acted for a global biochemical products supplier in a coronial inquest involving a person who had committed suicide by ingesting cyanide. While cyanide is highly toxic, it is used legitimately in medical research and gold production under very strict regulations. The person had intentionally tricked our client into supplying her with cyanide by pretending to be from a local university laboratory. She then used it to commit suicide.