You’ve probably seen them in your contracts. Miscellaneous provisions such as choice of law, litigation venue, successors and assigns provisions, no waiver, entire understanding, or supersede clauses. They tend to always appear at the end of the contract and are almost always an afterthought by the parties. After all, those provisions don’t mean anything, right?
Often when a contract claim proceeds to litigation these miscellaneous provisions are outcome determinative. Take for example the litigation venue provision. Let’s say you are a small Iowa company and the contract specifies that your case must be heard in the courts of Los Angeles, California. This means you must be prepared to fight the case in Los Angeles or you may automatically lose your case. The California venue will almost assuredly drive up the costs of litigation over an Iowa venue. First, your Iowa lawyer, unless he or she is licensed in California, will need to get local counsel in California. Chances are the California local counsel will charge a substantially higher hourly rate than here in the Midwest and you will likely need to travel for court hearings and other proceedings. WIthout the money to fight, you are doomed from the outset regardless of how good your case may be. Plus, without a history with the judges in that state it is often difficult to predict the outcome of issues which could put you at a real disadvantage.
That’s just one example. The other miscellaneous provisions in your contracts can come back to bite you in other ways. My recommendation is to carefully consider these provisions and don’t treat them as an afterthought. If litigation occurs, you may be very happy you did.