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Performing a Litigation Audit on Your Corporate Agreements

By Michael Eidel

Standard forms and specially negotiated agreements both have “boilerplate” provisions that are largely ignored at the time of the transaction, but almost always play a significant role when a dispute arises. These provisions are usually placed in the “fine print” in form contracts, such as in “standard provisions” on the reverse side of purchase orders, which may have not been reviewed and reconsidered for years. Because such a small percentage of transactions result in litigation, there is little motivation to reexamine provisions that have worked well enough before.

Corporate counsel who specially negotiate agreements also often fail to reconsider boilerplate provisions, instead choosing the expediency of copying seemingly innocuous provisions from a prior agreement sitting in the attorney's “form file.” If corporate counsel does review the boilerplate provisions, he or she may not have the litigation background and current knowledge of case law to determine how best to revise the provisions for their particular transaction or company, or how these provisions will play out in the litigation process. Yet, in the rare event litigation occurs, the previously ignored boilerplate provisions may well determine who maintains leverage throughout the case and, ultimately, who prevails.

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