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Tips and How-Tos for Writing Effective Transactional Agreements

Kelly M Hayes

Tips and How-Tos for Writing Effective Transactional Agreements
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Legal writing is an understated art contributing to advocacy. We asked five different attorneys to provide recommended strategies for advocating through legal writing in various areas and stages of the law. 

This is the second part of a five-part series.

Understanding your client’s goals and having efficient resources will help you effectively draft transactional agreements and help you limit potential issues for you and your client down the road.

Checklists Are Your Friend

Keep checklists for specific client situations (e.g., entity formation, drafting agreements). Keep a running list of information and materials you’ll need from your clients to determine their best path forward. Revise this list accordingly when needed. When creating a checklist, consider the following questions: How many parties are involved? Any key points? Are there any conditions? If forming a company, how many owners and what are they contributing? Are spousal consents needed? What is the client’s end goal?

Write the First Draft

As your client’s attorney, you should know best what your client’s obligations are, the timing of critical milestones, and the documents or information needed to close the deal. Though it can’t always be done, it’s beneficial for you to be the attorney writing the first draft in any transactional agreement. This puts you in a better position to negotiate opposing counsel’s proposed revisions.

Know Your Client’s Goals

Understanding your client’s role in a company and their goals for their business is key to any agreement when assisting your clients in the long run. For instance, when a client is looking to form an entity, they’re not usually thinking how certain situations could impact them months or years from now (e.g., bringing in additional investors). It is essential for you to think ahead. Proper language in the bylaws or operating agreements should cover the transfer of ownership, expansion, or purchasing another owner’s shares or leaving a beneficial or economic interest in a trust. Knowing your client’s goals, clarifying the deal’s structure, and understanding key terms will help you and your client avoid headaches down the road.

Be Aware of “Templates”

We’ve all had that cost-conscious client asking you to use a “template” to draft their “simple” agreement. Unfortunately, it’s never really that simple. Many clients don’t understand the minutiae involved in their business structures. No client is exactly alike. Even if you have a “template,” it will always need revisions to fit client-specific issues and goals. There will be times when you may need to draft the agreement from scratch—and that’s okay!

Use Your Professional Contacts

Often, the first question you ask a new business client is if they have a certified public accountant or financial advisor. If they do, try to get them on the phone immediately to discuss the client’s goals and business structure. If they don’t, have a list of contacts to give your client. Having a reliable professional can help you and your client save time and money. Additionally, having a list of trusted professionals can lead to client referrals back to you or your firm.

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