Law, the Working Life, and Innovation

Recently I've enjoyed reading some thoughtful posts offering different takes on the working life in law—how to make it more meaningful, or at least how to survive. In particular, I'm thinking of Vickie Pynchon's posts tracking how she picked herself up and dusted herself off after being laid off in 1992; click here for the first in the series. And Scott Greenfield's post offering some new facts of … [Read more...]

A New Term Is Born—”Backending”

In MSCD 3.57, I use the term "frontloading" for the process of pulling select information out of the body of the contract and placing it at the top of the contract. In MSCD 3.63 I acknowledge that instead of frontloading information, you could put it in a schedule. Some contracts—including one I'm reviewing at the moment—are aggressive about that, in that the body of the contract consists of … [Read more...]

My NYLJ Article on Retooling Your Contract Process for the Downturn

The New York Law Journal has published, in its "GC New York" section, my article entitled "Retooling Your Contract Process for the Downturn." Click here to go to a nifty PDF reprint and click here to go to the online version (free registration required). I suspect you'll find that a hard copy of the reprint is easier to read than the online version. This article describes how law departments … [Read more...]

“Shall”—Once More Unto the Breach

I've learned that Twitter can serve as an early-warning system. Thanks to a Twitter update by Lance Goddard—he of the blog Are You Writing This Down—I learned that Jay Shepherd had posted on his blog The Client Revolution this item recommending that you run a mile from shall. I took the liberty of posting this comment on Jay's blog saying that for purposes of business contracts, I've concluded … [Read more...]

Free Time in Houston on Feb. 25

On Wednesday, February 25, I'll be in Houston, cooling my heels between seminars. If you're in the Houston area and you'd like to meet with me to discuss what I do and whether I might be able to assist your organization, don't hesitate to contact me. … [Read more...]

“In Accordance With” and “According To”

Reader Doug asked me about the difference, if any, between in accordance with and according to. Garner's Modern American Usage says that according to means (1) "depending on"; (2) "as explained or reported by (a person)"; or (3) "in accordance with." It's used relatively often in contracts to convey the last of these meanings, as in "Any dispute must be resolved by arbitration according to the … [Read more...]

The Lilly Ledbetter Fair Pay Act and Syntactic Ambiguity—A Cautionary Tale

Reader Kazu brought to my attention the following language from the recently enacted Lilly Ledbetter Fair Pay Act (emphasis added): For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a … [Read more...]

What Businesspeople Think of Contract Language

I'm at Tremblant, the Quebec ski resort, at the invitation of the Canadian Healthcare Licensing Association. I just finished giving a short version of my "Language and Layout" seminar to sixty business-development people from Canadian pharmaceuticals companies. The participants included some lawyers, but for the most part this was a group of businesspeople. And although about a third of those … [Read more...]

Contracts as a Relationship-Building Tool

Some people regard the contract process as an adversarial one. I encountered a great example of that recently: someone I've been corresponding with used the word "opponent" in referring to a lawyer representing the other side in a deal. When the other side is the enemy, you're free to indulge in "creative ambiguity" and other shenanigans. That's a long way from my … [Read more...]

Using “Any” to Tame “And”

Here's a case of modest interest to you fans of and and or: County of Du Page v. Ill. Labor Rels. Bd., No. 105395, 2008 Ill. LEXIS 1835 (Ill. Dec. 18, 2008). It involves statutory construction, but the principles at issue apply equally to contracts. The Illinois Labor Relations Board certified a chapter of the Metropolitan Alliance of Police (the "Union") as the exclusive bargaining … [Read more...]

Lexical Ambiguity: A New Case for Fans of Frigaliment

While at LegalTech on Tuesday, I picked up a free copy of the New York Law Journal, just for the sheer novelty of reading it in newsprint. One item that caught my eye was an account of WebMD LLC v. RDA International Inc., No. 102830/08, 2009 WL 175036 (N.Y. Sup. Ct. Jan. 6, 2009). (Click here to go to the online version of this article (subscription required); click here to go to the … [Read more...]

Revising Your Contracts to Reflect Changed Circumstances

Reader Melvin told me about this item on Lexology by Jeffrey P. Drummond of Jackson Walker LLP. It's about how the Third Circuit Court of Appeals reversed the lower court in a qui tam action brought by a doctor against a hospital under the False Claims Act. At issue was the relationship between the hospital and an anesthesiology group that under a 1992 contract provided services to the … [Read more...]

When the Parties Know That an Obligation Can’t Be Performed

Included in the extensive comments to my recent post "Language Requiring Deletion of Electronic Files" is a comment by Michael Fleming to the effect that it's appropriate to impose on a party receiving confidential information an obligation to destroy all electronic versions of that information, regardless of whether that's in fact possible to do. Michael suggested that whether the party is able … [Read more...]