Contractual Clauses From a Litigation Perspective
When a business deal is coming together, contracts often feel like paperwork in the background. From a litigator’s perspective, they are anything but. In Common Contractual Clauses From a Litigation Perspective, FBFK Law litigators Dan Bitting and Ekaterina Long walk business lawyers through how familiar provisions look once a dispute arises, and why those choices can shape everything that follows in court or arbitration.
The article unpacks key decision points around forum and venue selection, including whether to steer disputes to state or federal court, when arbitration really serves the parties, and how venue, jury waivers, private judges, and local practice can move the needle on cost, timing, and outcomes. It also examines pre suit notice and dispute resolution clauses, explaining how they can encourage early resolution, but also create strategic risks, such as allowing the other side to sue first in a more favorable forum.
Bitting and Long then turn to clauses that limit remedies, such as shortened limitations periods, liquidated damages, and liability caps, with a practical look at how courts treat these provisions under Texas law, Fifth Circuit authority, and federal precedent. Finally, they address “language that can get you in trouble,” including omitted provisions, obvious drafting mistakes, intentional ambiguity, and undisclosed revisions, and connect those scenarios to real ethical rules and malpractice risks for transactional lawyers.
For business lawyers who want to draft with the endgame in mind, the full article offers concrete guidance, case law, and drafting considerations that help align contract language with real-world litigation dynamics.
Read the full article to explore these clauses in depth and strengthen how you structure and negotiate complex agreements.
