Although statistics vary, it’s clear that the majority of cases settle before trial. Documentation of the parties’ settlement agreement falls most often on the lawyers who handled the case: trial lawyers become transactional lawyers. The trial skills needed to prepare the case differ from the drafting skills needed to document its resolution. And nothing sours the successful resolution of a case faster than a settlement agreement that generates new litigation. So even trial lawyers must hone their drafting skills.
One overarching purpose of a settlement agreement is to address possible future events. Such events include a term or provision of the agreement being declared invalid or unenforceable. Parties often draft severability provisions, which establish that any term or provision ruled invalid or unenforceable shall be severed and become ineffective and the remaining terms and provisions shall continue in full force and effect. A severability provision seeks to preserve the parties’ agreement in the face of a future determination that could pose a threat to the entire agreement. The facial attraction of these provisions lies in their intended preservation of the underlying agreement even if one of its terms cannot be enforced.