Poor contract drafting is the number one symptom of non-compete cases gone bad.
(Number two is poor decisionmaking made in the quick vacuum of a perceived threat to a business' competitive position.)
So my recent trial featured an example of a contract which was terribly drafted. How do you justify a nationwide restriction against an employee who worked solely in one county? An employer is begging for an adverse judgment by pursuing such a case with obvious flaws.
Another example can be found in the interesting Florida appellate decision of Heiderich v. Florida Equine Veterinary Svcs., Inc. In that case, a veterinarian had a non-compete (very common in the industry, by the way) which provided that she could not, upon termination, engage in a "veterinary practice within a thirty mile radius" of her former employer.
Heiderich opened her practice outside the 30-mile radius, but provided services (house calls) to clients within the restricted territory. Problem for the ex-vet? Nope.
The Court of Appeal, over a mild dissent, held that Heiderich's work providing services within the 30-mile territory was not a breach of contract because her office location was outside the radius. Florida has a statute which even goes against the common law in terms of contract construction, such that the court did not have to construe any ambiguities against the drafting party.
This was a case which easily could have been avoided with some actual thought to the drafting process. The employer should have known that this was a potential (glaring) loophole. To avoid the problem it created for itself, the employer could have drafted the non-compete to prohibit the veterinarian from "providing veterinary services within a thirty mile radius" of the ex-employer. How hard is that?
One of the challenges facing attorneys (your author included) is the client perception that we print off contracts. That is a flat-out abdication of our professional duty. True, drafting contracts costs money. For an extra few hours, a client can ensure it's done correctly. My guess is Florida Equine spent ten times more in legal fees at trial and on appeal trying to justify a bad contract than it would have simply to make sure it got a proper agreement in place at the start.
Court: Court of Appeal of Florida, Fifth District
Opinion Date: 3/30/12
Cite: Heiderich v. Florida Equine Veterinary Svcs., Inc., 2012 Fla. App. LEXIS 4998 (Fla. Ct. App. Mar. 30, 2012)