Archives for June 2008

On July 17 I'll be in Seattle giving my West Legalworks seminar. Afterwards, starting at 5:00 p.m., I'll be meeting a few friends for drinks at the restaurant Sazerac, at 1101 Fourth Avenue, at the corner of Spring Street. It's a few blocks from the Grand Hyatt, where the seminar is being held. If you're in the area and have some time to kill, I invite you to join us—I'm always delighted to speak … [Read more...]

Maybe it's sunspots. Or something in the water. At any rate, another second edition of a book related to contract drafting has just been published. This time it's Charles Fox's Working with Contracts: What Law School Doesn't Teach You. (Click here to go to the Amazon page. Note that Amazon's a little confused, in that the cover image on display is that of the first edition.) As its title … [Read more...]

Normally I wouldn't dream of going public with thoughts on writing in general. A vast number of people have busied themselves with that topic, so there's no chance of my having anything novel to say. I regularly give thanks to the gods of writing that I've been given the near-virgin territory of contract drafting to explore. But I'll tell you how I spent my time yesterday morning. I've been … [Read more...]

Once in a long while I see a template contract that uses Word's line-numbering feature to include line numbering in the left margin of each page. The idea, obviously, it to allow anyone involved in drafting or negotiating a contract based on the template to pinpoint language at issue—Let's strike the word "material" on page 46, line 12. That's a laudable aim, but I'm inclined to think that … [Read more...]

I said in this blog post that I planned to do a post about Deal Proof. Well, here it is. Deal Proof is a Thomson West product; click here to go to the relevant page of the Thomson West website. It's a document-analysis and proofreading tool that many of the big firms subscribe to. It checks for inconsistent use of defined terms, creates lists of open items, and performs various other … [Read more...]

FYI, I'll be on the panel for a CLE session at the ABA 2008 annual meeting, which is being held in New York. The topic is "Getting the Business Deal into the Contract—Choosing the Right Words." It's being held at 2:30 p.m. on Friday, August 8. Also on the panel will be Tina Stark, professor at Emory Law School and the executive director of the school's new Center for Transactional Law and … [Read more...]

In this post I described how I had heard someone cite by name some companies and one law firm—a multi-office U.S. law firm—that had foresworn use of shall. Well, recently I had the privilege of giving a series of seminars at that law firm, and I was tickled to be able to ask two senior corporate partners whether their firm had in fact issued an edict against use of shall. They were mightily … [Read more...]

If you say that something has to be satisfactory to Acme, the standard might be an objective one, in that it would be met if a reasonable person in Acme’s position would be satisfied. Alternatively, it could mean that Acme actually has to be satisfied, subject only to the implied duty of good faith—the standard is a subjective one. The result is ambiguity. Courts prefer the former meaning; see 2-5 … [Read more...]

Law firms could take a number of steps to put their contract drafting on a more rational footing. They could adopt a contract-drafting “house style” that recommends usages to employ and usages to steer clear of. They could offer rigorous training. And they could implement a centralized template initiative, maybe even one that makes use of document-assembly technology. But in the course of … [Read more...]

West Legalworks would like me to do webinars for them. I'm open to the idea. I could do a series based on MSCD—maybe eight one-hour webinars. They'd be done live and then would be available on demand. Would doing MSCD webinars cause me to lose seminar business? I don't think so. If you come to my seminars or invite me to give an in-house seminar, the odds are it's because you want the immediacy … [Read more...]

I'm back after a three-week break from blogging. I'm not exactly refreshed, as I was traveling hither and yon doing seminars and, during down time, reviewing page proofs of the second edition of MSCD. I have a relatively tranquil summer ahead of me, so I'll be recharging my batteries, mainly by turning to man-about-the-house duties that I've cheerfully shirked for many months. I'll also be … [Read more...]

With age, birthdays become less important, so it shouldn't come as a surprise that on the second anniversary of this blog (give or take a few days) I'm less inclined to wax lyrical than I was after the first anniversary. But a few stray thoughts come to mind: I pay little attention to my blog's statistics. All I care about is whether I've been gaining readers. So far, I have been—last month I … [Read more...]

Such as is ambiguous—it might be unclear whether the clause it introduces serves to reduce the scope of the class represented by the preceding noun. This can result in contract disputes. Consider the following sentence: Richard collects books about painters such as Botticelli and Donatello. Given the general nature of the class in question (painters) and the narrowness of the items in the … [Read more...]

This past Friday and Saturday I was in Atlanta, at Emory Law School's conference on "Teaching Drafting and Transactional Skills: The Basics and Beyond." (Click here to go to the relevant page of Emory Law School's website.) The conference was organized by Tina Stark, an Emory professor and the executive director of the school's new Center for Transactional Law and Practice. Seeing as 175 people … [Read more...]

In MSCD 8.55 I recommend that you steer clear of and/or unless using it would spare you some verbiage. Well, consider the following basis for terminating an employee for cause: the Employee is charged with any crime that (1) is punishable by a custodial penalty, instead of or in addition to any fine or other non-custodial penalty, or (2) is related to the Employee’s employment Conceivably, an … [Read more...]

A couple of months ago, reader Kent asked me what I thought about using parentheses in contracts. Here, belatedly, is my answer: In regular prose, parentheses (namely round brackets, like those enclosing these words) are used to offset text that constitutes an explanation or aside. The limited and stylized prose of contracts is generally not the place for explanations and asides, so drafters … [Read more...]