Comments on: Am I Simply Expressing My “Personal Opinions”?

By: AdamsDrafting » Blog Archive » At Least We’re Not the Only Ones Who Are Grossly Inefficient

Fri, 09 Oct 2009 17:47:28 +0000

[...] I encounter plenty of resistance. (I recently sounded off about this.) Trotting out the tired conventional wisdom is easier than thinking. And reinventing [...]

By: AdamsDrafting » Blog Archive » Right and Wrong in Drafting Usages

AdamsDrafting » Blog Archive » Right and Wrong in Drafting Usages — Tue, 17 Mar 2009 12:18:29 +0000

[...] drafting goal, one of us is likely being less efficient than the other. I discussed this point in this December 2007 post on whether I’m simply expressing my “personal [...]

By: AdamsDrafting » Blog Archive » 2009 U.S. Seminar Dates, Plus Stray Thoughts on Public Seminars

Thu, 24 Jul 2008 22:16:39 +0000

[...] Every so often a participant will suggest in an evaluation that the usages I recommend aren’t objectively more efficient, that instead they simply represent my personal preferences. I attempted to address that in this December 2007 post. [...]

By: Ken Adams

Ken Adams — Sat, 02 Feb 2008 18:50:30 +0000

RossK: I think you misunderstand what I’m trying to do. I can in fact say with “100 percent certainty” that a given usage is confusing and could result in dispute; I can point to case law to that effect. Continuing to use, for example, “indemnify and hold harmless” has nothing to do with mitigating risk and instead has everything to do with expediency and obliviousness. To accomplish a given drafting goal, you can use clear and effective language rather than resorting to defective cliches. Ken

By: RossK

RossK — Sat, 02 Feb 2008 17:45:13 +0000

I agree with much of what you say but from a practice perspective lawyers are taught that using new language is risky. So for example you suggest “best efforts” means no more than “reasonable efforts” and that the “hold harmless” in “indemnify and hold harmless” is redundant, and that the recital of consideration is worthless. Now you may well be right in all these cases but you cannot say so with 100 percent certainty so it is natural that lawyers will continue to say “best efforts” where they wish to impose the higest possible standard, “hold harmless” where they wish to minimise any risk of the indemnity being restricted, and a recital of consideration to raise an estoppel (although if there is doubt about consideration then a deed format should of course be used instead of simple contract – obviating the need for a recital consideration entirely although even then I will still recite consideration in a guarantee document under deed). There is tons of legal language like this and sure maybe most of it is redundant but lawyers are supposed to be conservative. So we write things like “unless and until” instead of just “until”, and “any one, or more, or all of”, and “represents and warrants”, and we still call a condition a “condition subsequent” if we want to steer a judge away from holding that a condition was a condition precedent even though we know that the distinction may be ephemeral.

By: Sol Irvine

Sol Irvine — Thu, 20 Dec 2007 19:45:26 +0000

I use the software code analogy to help technologists get comfortable reading contracts. I tell them that understanding the conventions of contracts is no different than adjusting to the conventions of Perl, Ruby, C, etc.

This has been extremely effective, in my experience. For instance, my clients used to draft initial services descriptions with all sorts of random capitalization. It was bizarre, almost as if they had seen capitalization in contracts and were emulating it without any proper rules.

Now I explain the defined terms convention as a parallel to defining variables in code. This simple up-front step solved that problem on most deals.

By: Jeff Wheeler

Jeff Wheeler — Wed, 12 Dec 2007 21:59:28 +0000

You’re not alone in this. While I don’t receive much push-back about my contract drafting, I am frequently charged with strangling the creative muses of those whose draft reports I’ve just reviewed and edited.

The analogy I employ when working with these folks is that of a hypodermic needle. The needle ‘s mission is to deliver beneficial contents to a recipient, and its design objectives are to make the transmission as brief, pain-free, and unlikely to transmit bad content (i.e., infection) as possible. As such, we value straight, narrow, sharp, clean needles. Curved or flared ones might be more interesting to look at, but they compromise the point of the thing (and yes, I intended the pun; sorry).

Likewise, obscure or archaic words, passive voice, and imprecise linkage of subject to object may be closer to a drafter’s comfort zone, but it doesn’t make them acceptable.

By: Martin Clausen

Martin Clausen — Wed, 12 Dec 2007 18:50:05 +0000

The analogy to computer code is interesting. I find a lot of inspiration in programming texts, tools and methodologies, but do not recall seeing any papers/texts on the subject, do you ?

Martin