New West Legalworks Seminars for Fall 2007—Washington, D.C., Minneapolis, San Francisco, and Miami

I bring glad tidings: This fall I'll be doing my "Contract Drafting—Language and Layout" seminar in the following cities: September 26, Washington, D.C. October 17, Minneapolis November 15, San Francisco December 5, Miami Click here to see the brochure. West Legalworks and I are pleased with how the seminars are going, so you can expect them to become a fixture on the CLE … [Read more...]

Revised Definition of “Reasonable Efforts”

I'm reconciled to the fact that every so often I'll change my mind on some issue and thereby render obsolete some portion of my writings. In this article and in MSCD 7.34, I propose a definition of reasonable efforts that you might want to use in sensitive contexts. Well, in the course of reviewing for the umpteenth time my manuscript on the structure of M&A contracts, it belatedly dawned on me … [Read more...]

Unilaterally Amending “Virtual Attachments”

In this post I discussed language to use when incorporating into a contract terms stated in an ancillary document—including a web page—that isn't attached to the contract. I subsequently invented the term "virtual attachment" to describe any such ancillary document. (If you can think of a better term, I'd be delighted to hear it.) One issue I didn't discuss in my previous post is on what basis … [Read more...]

Calling All Practice Support Lawyers

I'm contemplating writing an article or blog post about law firms using "practice support lawyers" (also referred to as "staff attorneys") to draft contracts. If you're a practice support lawyer in the U.S., the U.K., or elsewhere and would be interested in discussing this topic with me, please contact me. I wouldn't use your name, or that of your firm, in my post. Come to think of it, I'd be … [Read more...]

“Is Responsible For”

It's commonplace for contracts to impose on a party a duty to take a particular action even though that action has no nexus with the one or more other parties. Here's an example: Each party shall pay all expenses that it incurs in connection with the transaction contemplated by this agreement. But if you think about, Acme doesn't really care whether Widgetco pays its expenses. (Note that I … [Read more...]

Document Collaboration—Q&A with Deepak Massand, CEO of Litera Corp.

In the past few months I’ve been introduced to some impressive information-technology tools. (Click here, here, here, and here to see the related posts.) My introduction to Litera IDS has been particularly memorable, given its functionality, the need it aims to meet, the lack of any real competition, and the fact that I had no inkling that it existed. Deepak Massand, Litera Corp.’s CEO, was kind … [Read more...]

The Perils of Providing for Entry into a Contract on “Customary” Terms

In this September 2006 blog post I examined the phrase form and substance, as in "an opinion of counsel in form and substance satisfactory to the Buyer." That phrase, along with the variant form and content, is found in language of obligation requiring the parties to enter into a given contract or requiring one or more parties to deliver a given document. It's also found in conditions. In that … [Read more...]

Alternative Defined Terms

Let's tour the universe of alternative defined terms. Alternative Defined Terms for Party Names In MSCD 2.40 I note that drafters sometimes give alternative defined terms for a party name (as in "Acme" or the "Company"). Doing so serves no purpose and inflicts on the reader the burden of remembering that Acme and the Company are one and the same. Alternative Defined Terms Consisting of a … [Read more...]

Any Excuse to Revisit the Traditional Recital of Consideration

Via Ray Ward of the (new) legal writer, I learned that Lowering the Bar had a take on the saga of the contract written in blood. I'd previously heard about this story but I didn't think it had much bearing on what I do—my notion of what falls under the rubric "contract drafting" isn't broad enough to include handy hints about how to write a contract in blood. But in the spirit of a preacher who … [Read more...]

“Etc.”

Don't use Etc. in section headings, as in "Effect of Merger, Consolidation, Etc." It conveys the impression that the drafter couldn't be bothered to come up with a suitably all-encompassing heading. And it's hardly informative. Some drafters get quite carried away with using Etc. in headings. A UST Inc. credit agreement filed with the SEC on July 3, 2007, uses it in 23 different section … [Read more...]

How Even the Humblest of Drafting Glitches Can Spur Litigation

Today's case is Mary J. Baker Revocable Trust v. Cenex Harvest States, Coops., Inc., 2007 MT 159 (Mont. 2007). (Click here for a copy.) In order to build a crude-oil pipeline in Montana, Cenex acquired easements from landowners by entering into right-of-way agreements with them. The agreements contained the following provision: [Grantors] do hereby grant, sell and convey unto [Cenex] ... its … [Read more...]

Reminder—New York, Seattle, and Boston Seminars

The "Contract Drafting—Language and Layout" summer tour continues! Next up is Jones Beach New York on Wednesday, July 18th, Seattle on Wednesday, July 25th, and Boston on Thursday, August 2nd. For more information, go to the "Public Seminars" page of my website. So far I've done L.A., Dallas, and Chicago. Interestingly enough, the dynamic has been slightly different in each city, but this is … [Read more...]

“Effective Date”

It's commonplace to refer in a contract to effectiveness of something or other—a merger, perhaps, or a registration statement. That's unobjectionable. But I'm dubious about using the defined term Effective Date in a contract to refer to effectiveness of that contract. This occurs in various ways. First, Effective Date is sometimes used to refer to the date stated in the introductory … [Read more...]

Revisiting the English Case on “Best Endeavours” and “Reasonable Endeavours”

I subscribe to the RSS feed of Mondaq.com, a repository of law-firm white papers, newsletters, whatever you want to call them. Occasionally something will show up that falls within my bailiwick, and last Friday I spotted a white paper issued by the English law firm Lawrence Graham LLP entitled "Drafting Contracts: How Useful Is the Boilerplate?" I set it aside for a rainy day, as English case … [Read more...]