The Second Edition of MSCD, One Year Out

December is when the American Bar Association tells its authors how their books did during the year that ended the previous September 30. So a couple of weeks ago I heard how the second edition of MSCD fared during the year starting just four months after its publication in July 2008. Publishers and authors are notoriously cagey about sales information, so I can't say much. But word from the … [Read more...]

Glenn West Reopens the “Represents and Warrants” Can of Worms!

You may recall my September 2009 post regarding my correspondence with Glenn West on that deathless subject, the phrase representations and warranties. (If you're new to this subject, you may want to consult this handy 558-word summary of my analysis.) Well, Glenn couldn't leave well enough alone—today I received from him an email on the subject, which he sent to me and to Tina Stark, professor at … [Read more...]

“Ceteris Paribus”?

A reader recently asked me about use of the phrase ceteris paribus in contracts. I was unfamiliar with this phrase—no Latin scholar I—so the first thing I did was consult Black's Law Dictionary, which told me that ceteris paribus means "other things being equal." I then checked the SEC's EDGAR system, from which I learned that of the umpteen contracts filed on EDGAR as "material contracts" … [Read more...]

Affiliates or Subsidiaries as of When?

Reader Bob Bramson suggested to me that I have a look at GTE v. Cellexis, 341 F.3d 1 (1st Cir. 2003). So I did. At issue was whether GTE could enforce its settlement agreement with Cellexis so as to preclude Cellexis from suing Cellco, a GTE affiliate that hadn't been a GTE affiliate when GTE and Cellexis had entered into the settlement agreement. The settlement agreement contained the … [Read more...]

Go Easy on the Capitalization

A few readers let me know about a Minnesota bankruptcy court judge who issued a set of guidelines for lawyers submitting proposed orders to him. Included was a request that lawyers limit their use of capitalization. For more information, see this post on Lawyerist.com. My first instinct was to assign this to the wrong side of the litigation-transactional divide. But drafting is subject to … [Read more...]

Redacted Version of My Response to a Template-Redrafting RFP

Recently I've been having more discussions with companies regarding redrafting their templates. In particular, I recently responded to an RFP ("request for proposal") from an international company that wanted to redraft its commercial-contract templates. I lost on price, which is frustrating, but this exercise provided a useful introduction to the realities of the no-discussion, … [Read more...]

More Mischief with Commas

I learned from this post on Language Log that use of commas in a provision of the Bankruptcy Code has become an issue in the bankcruptcy case of the Philadelphia News. Being a veteran of comma-related strife myself, I have a soft spot for such matters. But prevailing in any comma dispute comes a distant second-best to avoiding such fights. If the meaning of a given contract provision changes … [Read more...]

Practitioners and Scholarship: Oil and Water?

I'm prone to suggesting that the dysfunction in mainstream contract language can largely be attributed to the precedent-driven nature of transactional work. But perhaps another factor plays a supporting role. (Caveat: what follows is semi-informed speculation.) I suspect that a large majority of analytical materials relating to transactional work are prepared by practitioners. And of those … [Read more...]

Other Header and Footer Information?

Two items I posted today considered the format of page numbers and use of logos in headers and footers. And comments to this October 2009 post alluded to putting file names in the footer. So I got to thinking about other things that can go in headers and footers. I've sometimes seen the notation "Confidential" in a footer, the aim presumably being to keep working drafts confidential. Less … [Read more...]

Adding Logos to Your Contracts

I've occasionally seen, or heard of, contracts with a company or law-firm logo in the header or footer. And contracts can be printed on letterhead. Do you include a logo in your contracts? If you do, I invite you to post a comment explaining how and why. … [Read more...]

“Page X of Y”

While leafing through a company's template contracts today, I noticed that they use the page-number format Page X of Y. This page-numbering format offers two benefits. First, it lets the reader know how long the document is. And second, it precludes anyone from surreptitiously tacking on additional pages post-signing. But I don't find those advantages particularly compelling. If readers want … [Read more...]

So I’m in the Blawg 100

This blog has been included in the ABA Journal's "Blawg 100"—their listing of "the best legal blogs as selected by the Journal’s editors." It's always gratifying to have one's efforts recognized. And although I haven't read all other 99 blogs, I visit a good number of them regularly and have heard good things of many of the rest. So it appears I'm in good company. It's a little odd that they've … [Read more...]

Penn Law Panel Discussion on Contract Drafting at Law Firms (Including Edited Transcript)

Last week’s class in my Penn Law course on contract drafting was devoted to a conference call on the topic of contract drafting at law firms. Longtime readers of this blog will recognize two of the participants: Michael Fleming, partner at Larkin & Hoffman in Minneapolis and well-known cyberspace guy, and Mike Wokasch, a savvy fourth-year associate at Quarles & Brady's Madison, Wisconsin … [Read more...]