Elliot Dater Schnader Harrison Segal & Lewis LLP Tales From the Trenches: Practical Contract Negotiation Strategy and Tactics Elliot Dater Schnader Harrison Segal & Lewis LLP

Background Commercial Contracts Transactional Contracts International Contracts

Preparation Set your goals Allocate roles and responsibilities Know the other side Their goals Redlines Responsibilities Authority

More Preparation Know the culture Internal buy-in Agree on tactics Technology vs. in person The first draft

Negotiating Neutrality Ask questions The art of silence Less is more Know when to stop When you think you know it all – hesitate Package deal

More Negotiating Speed and inertia The price of haste Flip the script and change the dynamics Caucusing and communicating I will have to get back to you on that Note taker Summarize/memorialize A note on understandings

Negotiating Styles Bully and Bluster The Word Twister The Appeaser Mr./Ms. Let’s split the difference The Expert Fight for Every Right/Concession Let’s do business

The Contract – Key Provisions Price and payment terms and conditions Limitations of liability and indemnity – these are not “lawyer” issues Valuation mechanisms Dispute resolution mechanisms Buy-outs Termination Amendment

More Key Provisions Hold backs/escrow provisions Statement of Work Specification Level of Service Read and draft the Exhibits/Schedules, etc.! Changes Choice of law – don’t forget jurisdiction and venue Incentives to prevent disputes

Drafting Be the drafter Don’t be shy about comments Active vs. passive Agree to vs. shall Construction Clarity vs. ambiguity Drafting challenges Definitions

Working With Outside Counsel Scope of Work Avoid duplicating efforts Allocation of tasks Specialized knowledge Drafting Lead in negotiations

Contract is a Means to an End Preparation Planning Execution Implementation Diligence, diligence, diligence

Thank You! Questions? Feel free to contact me: Elliot Dater edater@schnader.com (412) 577-5214