For Optimal Contract Language, Don’t Follow the Herd

In this post on his Contract Analysis and Contract Standards blog, Kingsley Martin notes that empirical analysis of contracts allows you to determine what they actually say as opposed to what you think they say. That makes sense, but it wasn't what caught my eye. Instead, I noted this table, which is from Stewart J. Schwab & Randall S. Thomas, An Empirical Analysis of CEO Contracts: What Do … [Read more...]

What U.S. Cities Should I Add to My 2011 “Drafting Clearer Contracts” Dates?

In partnership with West LegalEdcenter, I do an all-day version of my "Drafting Clearer Contracts" seminar in cities throughout the U.S. Click here for the 2010 schedule. (I do seminars in Canada with a different partner, Osgoode Professional Development.) The roster of U.S. cities changes from year to year, with a city or two being added or dropped. We're currently working on the 2011 schedule, … [Read more...]

Are Some Terms Too Obvious to Define?

I'm back teaching at Penn Law, working through the chaos that inevitably seems to accompany the first couple of weeks. A sign that we're getting more focused is that two students each reported an MSCD typo. (Cue author gnashing teeth.) And more to the point, one student asked the first blogworthy question of the semester. We had been discussing integrated versus autonomous definitions, and one … [Read more...]

Is Contract Drafting “Deadly”?

This American Lawyer article about the lawyers of the "Forbes 400" reminded me that real-estate developer Sam Zell once said, regarding his first days as a lawyer, "I spent my first week drafting a contract. It was deadly." (See this WSJ Law Blog item for complete details.) So, is contract drafting deadly? For junior lawyers, it's unlikely to be a walk in the park. Exactly how frustrated you … [Read more...]

LinkedIn Groups: The Wisdom of Crowds, the Tower of Babel

Readers of this blog will be aware that I'm partial to the notion of lobbing questions to a broad and interested readership and seeing what I get by way of a response. So it will come as no surprise that I think LinkedIn groups can be useful. Thus far my involvement in LinkedIn groups has been limited. I'm a member of the tiny and moribund Contract Drafters group; I'm not inclined to attempt to … [Read more...]

Some More BigLaw Seminar Feedback

I've previously (in this blog post and this blog post from November 2009) ruminated over the relative dearth of BigLaw associates at my public seminars in the U.S. (Canada is a different matter entirely.) So when some do materialize, it's a little like a birdwatcher spotting a variegated flycatcher. Last week I held one of my West "Drafting Clearer Contracts" seminars in Boston; a good time … [Read more...]

Unilaterally Fixing a Signed Contract Is a Bad Idea

Via Above the Law, I learned of this article in the Los Angeles Times. Frank McCourt, owner of the L.A. Dodgers baseball team, is engaged in a scorched-earth divorce battle, and this article details how Larry Silverstein, a lawyer for McCourt, apparently took it upon himself to change one word in a signed contract between McCourt and his wife Jamie: Frank McCourt's lawyers have said Silverstein … [Read more...]

“Books and Records”?

Reader Macy Shubak recently asked me the following question: How do you feel about using "books and records" as in "Investor may inspect the Company's books and records"? I think one or the other of the words can be deleted. It would be better to delete "books," since "records" is broader. "Records" includes physical and electronic records, whereas "books" sounds like hard copy materials. I think … [Read more...]

Working Through the “What Ifs”

A crucial part of drafting any contract is making sure that you've worked through the "what ifs"—that you've addressed all conceivable scenarios and that nothing has fallen through the cracks. When you're dealing with a complex transaction, accomplishing that requires specialized expertise and sufficient time and patience to wrestle with lengthy and and intricate documentation. It's easy to … [Read more...]

Real Change: Not from the Demand Side or the Supply Side, But from the Outside

When it comes to contract drafting, change is tough. For one thing, it's precedent-driven. And it's a team sport—instead of being able to draft in splendid isolation, you may well have to take into account the preferences of others on your side of the transaction, not to mention the preferences of those on the other side. And in the fast-paced transactional world, people aren't inclined to set … [Read more...]

Getting Litigator Input When Drafting Contracts

In the article on arbitration versus litigation that I mentioned in this post, a couple of the litigators interviewed noted wistfully that they're almost never consulted about what dispute-resolution provisions to include in a given contract. That raises a general question: Do you ever consult litigators when drafting? Do you think it adds value to do so? It would seem sensible to consult … [Read more...]

Tweaking Your Arbitration Clause

If you're a fan of the litigation-versus-arbitration debate, you'll find of interest this article on law.com. It's from the Legal Intelligencer, and it's by Gina Passarella. The title says it all: "Litigators Losing Love of Arbitration Argue for Trials." But what caught my eye was the suggestions made by those interviewed for the article regarding how you can attempt to limit any downside to … [Read more...]

Some Thoughts on Theory Versus Practice in Law Schools

In recent days there's been plenty of chatter about this post on Balkinization by Jason Mazzone, a professor at Brooklyn Law School. Here's the meat of what he proposes: As far as I can tell, no law school in the United States co-exists in a university along with an academic law department. If a university has a law school, every professor of law is in the law school. We should reconsider this … [Read more...]

“Mandatory”

The word mandatory can come in handy in contracts, for example in the defined term Mandatory Conversion, as distinguished from Voluntary Conversion. But it can also be surplussage, in that if something is stated as an obligation, then necessarily it's mandatory. That's why I think mandatory can be omitted from the following examples: The parties agree that all claims, disputes or controversies … [Read more...]