One of the hardest things to explain to a client (particularly a sophisticated business client) is that some contracts, no matter how carefully drafted and heavily negotiated, may simply be ignored when push comes to shove before a court. For technology lawyers, that conversation often takes place as the client tries to figure out how to retain its key employees or protect its trade secrets and intellectual property through a non-compete clause.
Non-compete agreements present myriad challenges for lawyers and their clients, because their interpretation and enforcement is dependent on so many complex factors external to the language of the contract itself. Whereas the general rule of contract interpretation is that a non-ambiguous contract should be enforced on its terms, the rules for non-compete agreements vary enormously from state to state.
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