Drafting and Enforcing Complex Indemnificaion Provisions

The purpose of this article is to assist transactional and litigation attorneys negotiate and draft customized, and therefore more effective, indemnification provisions in a wide range of situations, and also to spot certain litigation issues that may arise out of indemnification provisions. This article will identify issues and provide the strategies and suggested language that can act as a starting point to protect the client’s interests in the area of the duty to defend, advancement of defense expenses and indemnification in complex transactions and litigation. This is not a survey of the substantive law of indemnification in every state and federal jurisdiction. While selected published opinions will be mentioned and occasionally discussed, this article will not focus on case law. Instead, the article is intended to be a practical guide that illustrates real-world strategies, tactics and techniques to be used when negotiating and enforcing defense, advancement and indemnification provisions.

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