On Using a Two-Column Format

In MSCD, at 12.20, I say “the need to distinguish between sections, subsections, and enumerated clauses and sub-clauses means that using columns is not an option.” We’ll, it’s time to rethink that. I’ve been experimenting with a two-column version of the MSCD format, and it isn’t half bad. Click here for a PDF of one-page examples of the same text in the standard MSCD one-column format (using … [Read more...]

Who Owns the Copyright?

My previous post on the contract drafter as copyright violator sidestepped a very pertinent question—under U.S. law, who owns the copyright in a contract that a law firm drafts for its client? Law Firm or Lawyer? This question has two parts. First, as between a law firm and the lawyer who drafts the contract, who owns the copyright? The answer could depend on who does the drafting. 17 … [Read more...]

“Coupled with an Interest”

When I redraft a contract, part of the task involves coming up with language that is equivalent to, but clearer and more efficient than, what’s already there—I rationalize verb use and defined terms, eliminate redundant synonyms, and so on. These kinds of changes are straightforward enough—it’s the structural changes that require more thought. But sometimes I’ll come across a phrase that leaves … [Read more...]

Readability Tests and the Contract Drafter

Earlier this year I redrafted a complex commercial agreement and sent it off to the client. I received in response a comment that I hadn’t expected at all—that the readability score for my draft was rather low. This caused me to scratch my head—I’d never given a moment’s though to readability tests. So I did some rooting around online. (Here’s the relevant Wikipedia page.) My client was … [Read more...]

More on Rhetorical Emphasis

In MSCD (13.37–38) I briefly discuss “rhetorical emphasis”—adding verbiage to a provision not to change its meaning but to make it more emphatic. I suggest in MSCD that as a general matter you’re best off dispensing with rhetorical emphasis—the function of drafting is to state rules rather than convince anyone of anything. Nevertheless, one or more parties might feel more secure adding rhetorical … [Read more...]

“Survival”

I’ve recently been thinking about the concept of “survival.” It crops up in contracts in three ways, and in each of those contexts it’s either unnecessary or inferior to an alternative approach. I discuss each of these three contexts below. Survival of Claims Sometimes an agreement will specify that any claims that arise before an agreement terminates will survive termination. The wording of … [Read more...]

“From the Beginning of Time” and “At Law or in Equity”

Recently someone asked me about settlement and release agreements, and that put me in mind of a picturesque drafting usage that’s a fixture of release language—from the beginning of time, as in “Jones hereby releases Acme from any claims … arising from the beginning of time to the date of this agreement.” I searched for this phrase in the material contracts filed on the SEC’s EDGAR system in … [Read more...]

November 2006 Toronto Drafting Workshop

The box office is now open for the “Intensive Contract Drafting Workshop” that I’ll be conducting in Toronto on November 6–7, 2006, under the auspices of the Professional Development Program of York University’s Osgoode Hall Law School. For more information, go here. In particular, check out the brochure, a pdf of which is at the bottom of that page. … [Read more...]