Notes from the Road: Zurich

Last week I was in Zurich. I was there to do an in-house “Drafting Clearer Contracts” seminar on Tuesday for ABB, the global engineering company, followed by public …

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Posted in Notes from the Road | 1 Comment

Reaching a Point of Diminishing Returns in the Search for Simple Contract Language

Two recent exchanges have led me to consider that when it comes to seeking simplicity in the language of business contracts, one can reach a point …

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Posted in Selected Usages | 2 Comments

On Not Indulging in Different Ways to Say “Promptly”

Today I saw the following in a contract on EDGAR (emphasis added): Owner shall provide Contractor notice (which may be oral or by electronic means) …

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Posted in Vagueness | 5 Comments

“Voluntarily” and “Freely”

In this post I promised that I would write about voluntarily. Rejoice, friends—that time has come. As a bonus, I give you also freely. The …

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Posted in Selected Usages | 12 Comments

You Have to Learn to Walk Before You Can Learn to Run: Thoughts on a Tim Cummins Post

Yesterday Tim Cummins of the International Association for Contract & Commercial Management posted this item on his blog. It’s on the need for change in contracts, …

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Change: Fast or Slow?

It’s clear what’s required to improve the contract-creation side of a company’s contract process: adopt a style guide for contract language, most likely by means …

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Posted in Contract-Automation Clearinghouse, Document Assembly | 1 Comment

“Shall Without Undue Delay” (Including a German Angle)

Yesterday I unleashed on an unsuspecting world the following devastating insight: Instead of "shall without undue delay," I'd use "shall promptly". — Ken Adams (@KonciseD) …

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Posted in Selected Usages | 4 Comments

You Want to Measure Quality in Contracts? Without a Style Guide, You’re Nowhere

I noted with interest this post by Ken Grady on Seyfarth Shaw’s Seytlines blog, particularly as last year I did a Q&A with Ken on …

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Posted in Process | 5 Comments

Which Category of Contract Language?

It’s time for another installment of your favorite game, Which category of contract language? Here’s a cleaned-up version of something I just saw in a …

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Posted in Categories of Contract Language | 16 Comments

There’s More Than One Way to Sell a Company

Yesterday ContractsProf Blog published this guest post by Tina Stark. It serves as a reminder that drafters should distinguish sale of a company from a shareholder’s selling shares. …

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Posted in Uncategorized | 7 Comments

[It’s Back!] My Version of an “Irreparable Harm” Provision

[This post was originally published May 4, 2013. I’m republishing it because a client, of all people, mentioned it to me—I had completely forgotten about …

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Posted in Selected Provisions | 31 Comments

A New Provision Specifying a Drafting Convention Relating to Time

When you encounter confusion in contract language, the thing not to do is to stamp your feet and insist that your interpretation is the sensible …

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Posted in References to Time | 15 Comments

Two Issues Relating to Article Enumeration

It’s been a while since I’ve had occasion to write about layout. Here are two issues relating to enumeration in articles. Be still my beating …

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Posted in Layout | 11 Comments

Revisiting “Midnight”

Today I saw the following @matt_levine tweet: How lawyers say "midnight." http://t.co/2fZJUY9NBa pic.twitter.com/osjP0ItCd5 — Matt Levine (@matt_levine) March 16, 2015 The number of retweets confirms …

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Posted in References to Time | 6 Comments

What to Include in MSCD4

Although it won’t see the light of day for at least another year, my attention is turning to the fourth edition of A Manual of …

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Posted in MSCD | 12 Comments

Notes from the Road: China

I’m at the end of a whirlwind trip to China. Five seminars in eight days—Beijing, Shanghai, then Beijing again. The impetus for the trip was …

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Law Reviews and Prestige Whoring

Having written an article on represents and warrants, I had to find a home for it. That caused me to consider again the whole business …

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Posted in Odds and Ends, Teaching | 6 Comments

Dates for U.S. 2015 “Drafting Clearer Contracts” Seminars

The dates and cities for my 2015 public “Drafting Clearer Contracts” seminars in the U.S. for West LegalEdcenter have been on the “Public Seminars” page …

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Posted in Seminars | 4 Comments

Reminder: Zurich Seminars

My 15 April and 16 April “Drafting Clearer Contracts” seminars in Zurich are fast approaching. They will be my only seminars in Continental Europe this …

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Do We Care About Default Remedies?

You might recall that one of the rationales for use of the phrase represents and warrants is that it allows you to specify what remedies are available, …

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Posted in Selected Provisions | 8 Comments

Some Shortcomings of Live CLE Webcasts

Recently I was on the panel for a live webcast—you know, with panelists joining in by telephone and everyone looking at PowerPoint slides on their …

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Posted in Webcasts | 4 Comments

“Knowingly”

At my recent “Drafting Clearer Contracts” seminar in San Francisco, a participant asked me what I thought of use of the phrase knowingly, voluntarily, and …

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Posted in Selected Usages | 6 Comments

Is There a Downside to Automated Contract Creation?

If you think of yourself as a committed member of the digerati, The Glass Cage: Automation and Us, by Nicholas Carr, might give you pause. Carr shows that …

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So You’re “Hosed” If You Use Older Lawyers for Your Contracts?

Here’s the opening of this Gigaom story, by Stacey Higginbotham: One of the biggest roadblock to adopting the public cloud for Rich Roseman, former CIO …

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Posted in Process | 7 Comments

“Shall Seek”

Welcome to shall seek, yet another unhelpful alternative to saying that a party has to use reasonable efforts to accomplish something. With shall seek, you’re …

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Posted in Categories of Contract Language | 3 Comments

“Promises That” and “Promises To”

For the sheer heck of it, let’s look at how the verb promises is used in contracts. Here are two examples from EDGAR of promises that: Executive …

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Posted in Categories of Contract Language | 4 Comments

Is Contract Creation an Important Part of Your Contract Automation? Then Don’t Do It Using CLM Software

The contract process divides neatly into two parts: stuff that happens before a contract is signed, and stuff that happens after. I never get involved …

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A Reminder About “Shall Cause”

Reed Smith has published an inaugural issue of Contract-Drafting Bulletin. One item was of particular interest to me. It’s about an October 2014 opinion from …

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Posted in Categories of Contract Language | 3 Comments

Stating Warranties Relating to “Future Facts”

I’d like to revisit something discussed in MSCD—how one states warranties relating to, for example, goods yet to be delivered. Consider the following: Acme warrants that …

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Posted in Categories of Contract Language, Selected Usages | 11 Comments

The Role of Narration in Contract Drafting

I’m in the habit of dividing the task of contract drafting into determining what to say and how to say it. But that’s not to …

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Posted in Process | 3 Comments

Being Specific in Contracts Can Help Avoid Confusion When Circumstances Change

Recently Eric Goldman (otherwise know as @ericgoldman) alerted me to In re SuperMedia, Inc., an opinion by the Delaware U.S. Bankruptcy Court. (Go here for a …

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Posted in Uncategorized | 4 Comments

Some “Efforts” Advice That I Wouldn’t Give

In the early days of my rummaging through the entrails of contract language, I logged a lot of time with the second edition of Bryan …

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Posted in Process, Selected Usages | 16 Comments

Using English-Language Contracts in China: My Q&A with China Law Blog

In March I’m going to Beijing and Shanghai to give public (here) and in-house “Drafting Clearer Contracts” seminars. I’ve never been to mainland China, so …

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Posted in International, Q&A | 9 Comments

What’s All the Chatter About Free Contracts?

Gee, did I miss the announcement that it was “Free Contracts Week” on the blawgosphere? First there was this article on Tech Crunch by @ddoktori. …

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Fun with Search-and-Replace Glitches

Recently I read a contract that contained scattered search-and-replace glitches. In attempting to remove identifying information, someone had searched for one of the party-name defined …

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Posted in Odds and Ends | 10 Comments

An Underwhelming “Efforts” Opinion by the Quebec Superior Court

A little birdie told me about the opinion of the Quebec Superior Court in Cemar Electro Inc. v. Grob Textile, A.G., 2014 QCCS 5814. (Go here …

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Posted in Selected Usages | 5 Comments

Don’t Use “Mean” in Autonomous Definitions Just Because the Defined Term Is Plural

Each of the following extracts from EDGAR exhibits the same problem: For purposes of this Agreement, “Eligible Plan Assets” mean total Plan Assets (including assets …

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Posted in Defined Terms | 1 Comment

“Nothing in this Agreement Gives X the Right”

Behold the following: Nothing in this agreement gives either party a license or other right to use the trademarks … If the idea is that …

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Posted in Categories of Contract Language | 12 Comments

How Smaller Law Firms Can Use Document Assembly

A lot of discussion about how smaller law firms can use document assembly—see for example this article—isn’t particularly exciting. You might be left with the impression that …

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Posted in Contract-Automation Clearinghouse, Document Assembly | 3 Comments

Seminar Update: San Francisco Seminar Rescheduled for February 20 (And the First Round’s on Me!)

My December 11, 2014, San Francisco “Drafting Clearer Contracts” seminar was cancelled because of a power outage caused by the epic storm that swept through the …

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Does Your Company Use Contract-Lifecycle-Management Software?

Years ago a wrote briefly about contract-lifecycle-management (CLM) software, which is software that allows an organization to keep track of its contracts and key contract information, …

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Posted in Process, Technology | 5 Comments

Why Contract Automation Isn’t Among Bob Ambrogi’s 10 Most Important Legal Technology Developments of 2014

In this post on his LawSites blog, Bob Ambrogi (@bobambrogi) lists what he considers the ten most important legal technology developments of 2014. It makes for …

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Seminar Update: No 2015 Australia Seminars

I’m sorry that I’ve been slow to post this, but I won’t be doing seminars in Australia in 2015, even though the author note in …

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Reports of Automated M&A Contract Creation Have Been Greatly Exaggerated

Over the weekend @bickmark sent the following tweet my way: .@KonciseD Does the quote regarding questionnaire-based automation ring true? Has BigLaw automated the M&A agreement? …

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Posted in Contract-Automation Clearinghouse, Document Assembly, M&A | Leave a comment

Plenty of Room for Improvement: My Critique of IBM’s New Two-Page Cloud-Services Contract (Updated with PDFs Containing the Comments)

Via a regular source of my Twitter leads, @ronfriedmann, I learned of this article in Corporate Counsel by Sue Reisinger about how a team at IBM …

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Posted in Bad Drafting | 14 Comments

The Sad Truth About Promiscuous Copying of Contract Language

I recently came across this blog post on Clio’s website. Clio is software that handles time and billing, calendaring, and collaboration, but this blog post …

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Litigation Over the Meaning of “Pro Rata”? Don’t Be That Drafter

Here’s a story told in this post on the BeLabor the Point blog: A contract between a company and a departing employee stated that the …

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Posted in Bad Drafting | 1 Comment

“Actual”

Does the word actual have a role to play in contracts? Sure, when it’s used to draw a contrast with some other attribute: any actual …

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Posted in Selected Usages | 2 Comments

Overhauling Your Contract Process? Don’t Skimp on Contract Creation

Via this post by Tim Cummins, I learned of this article in the National Law Journal by Mark Harris, chief executive officer of Axiom, “a provider of technology-enabled legal services” …

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New In-House Offering: Seminar on Advanced Categories of Contract Language

Recently I did in Toronto a day-long workshop entitled “An Intensive Program in the Categories of Contract Language.” “The categories of contract language” is my …

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