New 2009 Seminar Dates (Including Some Testimonials)

I'll soon be resuming my itinerant ways. In particular, my first public seminar of 2009 is on February 24, in Houston. And 2009 just got busier, as I've added some new "Contract Drafting—Language and Layout" public seminar dates, namely U.S. dates for the second half of 2009 and new Toronto and Vancouver dates. Click here for the details. Remember that members of the ABA Section of Business … [Read more...]

Adopting a House Style for Contract Drafting

To accomplish any given drafting goal, one usage will be more efficient than the others. Once you accept that notion, it follows that it would make sense for drafters to join other writers in using a manual of style. That's why I wrote A Manual of Style for Contract Drafting. Use of a manual of style in a given population might be at the discretion of the individual, or it might be adopted more … [Read more...]

Drafting by Committee? Not So Good

Today Rees Morrision posted this item on his blog. It makes the point that groups are good for sharing information but not so good for making decisions. It also quotes an academic as saying that "Groups are not helpful in getting people to make better decisions, but they’re helpful in getting people to feel more confident about the decisions they’ve made." That explains why all sorts of … [Read more...]

More on Prospects for Change: Getting Outside Counsel to Cooperate

This post earlier this month considered how to ensure that people on the other side of a deal don't balk at MSCD-compliant language. But what if it's your outside counsel that's not playing along? In this post from last weekend I said that company law departments are best positioned to drive change, in that they’re the ones who pay the bills for inefficient drafting, whether by their lawyers … [Read more...]

Follow this Blog on Twitter

In this post from earlier this month, I expressed incredulity at the idea of my being able to make good use of Twitter—what I do doesn't come in installments of no more than 140 characters. But following up on a suggestion by commenter Jonathan Handel, I've arranged matters so that every time I post on the blog a tweet gets automatically generated with a headline and link to the blog post. If … [Read more...]

Prospects for Change

A couple of recent posts (this one and this one) prompted some gnashing of teeth and rending of clothes by commenters frustrated at the pushback they encounter when they use clear, efficient, and modern contract language. So I thought it might be worthwhile for me to elaborate on something I offered in this comment. Here goes: I'm optimistic about the prospects for change. No doubt that's due … [Read more...]

The Different Ways of Signing Legal Documents Electronically

Thanks to Bryan Sims of The Connected Lawyer, I came across (1) this useful post by TechnoEsq on the different ways of signing legal documents electronically and (2) this post by Ernie Svenson, wearing his PDF for Lawyers hat, on one of those ways of signing, namely using digital signatures. By way of a reminder, digital signatures form part of Echosign and other signature-automation solutions. … [Read more...]

With Free Online Forms, You Get What You Pay For

Rees Morrison, prolific blogger on all things law-department-related, posted this item about free legal forms available online. Here's what it says: As the online world inexorably proves that information wants to be free, in-house counsel will increasingly have more forms of agreements available online, and at no cost. One example of the genre is YourFreeLegalForms.com. According to an … [Read more...]

Numbering or Lettering Schedules and Exhibits: A Proposal

Here's the approach that's reflected in MSCD: If you could accomplish any given drafting goal in a number of different ways, consistency and efficiency would be enhanced if you, and everyone else, were to choose, and stick with, just one of the ways. And if you look closely, more often than not one of the different ways will prove to be superior to the others—that's the one you should … [Read more...]

“As Well As”

In this October 2008 blog post I said that together with is usually a roundabout way of saying, depending on the circumstances, and or with or plus. Well, it just crossed my mind that a related usage is as well as—you should be able to use and instead. Often together with and as well as contribute to a long-winded recitation of the elements of a class: The Borrower hereby grants a … [Read more...]

Does One “Enter Into” or “Enter” a Contract?

The following is from reader Tom Hertz: Based on MSCD, I gather that you'd say that parties enter into an agreement, rather than simply enter it. (See, for example, MSCD 2.21 and 8.18.) The former usage is certainly common and, just as certainly, redundant. Why not use just enter? Prepositions have a way of glomming on to verbs, turning them into prepositional (or "two-word") verbs, even … [Read more...]

Language Requiring Deletion of Electronic Files

I received the following inquiry from Sarita Nair of the New Mexico law firm Sutin, Thayer & Browne: I am struggling to find a concise way to limit an obligation to delete electronic records. As you know, many contracts and letters of intent contain an obligation to destroy documents if a commercial relationship ends. In recent years, it has become common to add in a phrase like "and remove … [Read more...]

Mulling Over Feedback from a Law-Firm In-House Seminar

I used to be reticent about asking for feedback after giving an in-house seminar—heaven forbid that I should be a nuisance! But I now make a point of asking for such feedback. I'm acutely aware that my seminars are a mixture of bad news (Everything you know is wrong!) and good news (Here's how to fix it!), and so it's important for me to have a good sense of how my message is being … [Read more...]

When Cultures Clash in Contract Drafting

David Miller is general counsel of Rogers Communications, the Canadian communications company. I met him in 2007 when, shortly after helping them out in the Canadian comma dispute, I was invited to give a day-long seminar at Rogers. That seminar contributed to my love affair with Canada, as David attended the entire seminar. From start to finish. Unheard of! Rather than simply sending your … [Read more...]

The Forthright Negotiator Principle and Creative Ambiguity

In this December 2007 post I wrote about the Delaware Chancery Court opinion in the litigation between United Rentals Inc. and two Cerberus Partners acquisition vehicles. But I wasn't so much interested in the opinion as in what had caused the confusion and how it could have been avoided, so I didn't even mention the principle that the court invoked, "the forthright negotiator principle." Here's … [Read more...]

Using the ABA’s Deal Points Studies

One of the more useful perks of being a member of the American Bar Association is that you get access to the "Deal Points Studies" prepared by the Section of Business Law's Committee on Mergers and Acquisitions. There are various Deal Points Studies; I've recently consulted the 2008 Strategic Buyer/Public Target M&A Deal Points Study and the 2007 Private Target Deal Points Study. (Because the … [Read more...]

MSCD Second Edition Now Available on Amazon

The first few months after the ABA publishes a book, you can purchase it only through them. Thereafter, they start to distribute it through the usual online sellers. Consistent with that, the second edition of A Manual of Style for Contract Drafting is now available on Amazon; click here to go to the Amazon page for MSCD. Of course, given Amazon's predatory consumer-friendly pricing, they're … [Read more...]

What to Do When the Other Side Wants to Change Your MSCD-Compliant Language

Longtime reader Michael Fleming sent me the following cry of pain: Below is a little taste of a markup I received from the other side of a deal I'm working on: MASTER SERVICES AGREEMENT This Mmaster Sservices Aagreement ("Agreement") is dated ________, 20__ (the "Effective Date") and is between FLEMING'S CLIENT, INC., a Minnesota corporation ("Client"), and IDIOTIC LARGE COMPANY, INC., a … [Read more...]

Which Come First, Schedules or Exhibits?

When you assemble the components of a contract that refers to schedules and exhibits, which should come first after the main part of the contract? The schedules or the exhibits? Thanks to a reader inquiry, I've now considered that gripping question for the first time. I recommend you put the schedules first: Schedules consist of materials that could be in the main part of the contract but for … [Read more...]

I Won’t Be Using Twitter Any Time Soon (I Think)

[Update: You might want to read the comments.] You may have heard of Twitter. It's a free social-networking service that allows users to send updates and read other users' updates. Updates are text-based posts of up to 140 characters in length; they're commonly referred to as "tweets." Twitter describes itself as "a service for friends, family, and co–workers to communicate and stay connected … [Read more...]