My New Article About “Shall”

The current issue of The Australian Corporate Lawyer—the journal of the Australian Corporate Lawyers Association—contains my article Banishing Shall from Business Contracts: Throwing the Baby …

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Posted in My Articles | 2 Comments

My Categories-of-Contract-Language Analysis of a Cisco Template Contract

In this post I mentioned that I had asked my students at Notre Dame Law School to analyze the verb structures in the “SOW terms & …

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Posted in Bad Drafting | 9 Comments

Contract Drafting in Japan: My Q&A with Yusuke Sato

In November, I head to Asia—I’m giving seminars in Seoul, Tokyo, and Singapore. I’m particularly looking forward to my seminar in Tokyo. It will be …

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Posted in Q&A | 1 Comment

Doing That Bracket Thing in Your Signature Blocks

Yesterday I saw an English template contract that had in the signature blocks three brackets (or rather, closing parentheses) one on top of the other. …

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Posted in Uncategorized | 8 Comments

Bringing Outside Organizations into the Law School

In addition to bringing in outside lawyers to take part in my “intensive” Contract Drafting course at Notre Dame Law School (as described in this …

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Posted in Uncategorized | 1 Comment

What BigLaw Partners Mean When They Say They’re Not Interested in Automated Contract Creation

A good number of law firms are ContractExpress customers. Goodwin Procter. Latham & Watkins. Perkins Coie. Wilson Sonsini. And so on. But recently I’ve spoken …

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Posted in Contract-Automation Clearinghouse, Document Assembly | 2 Comments

Reminder: Affiliates as of When?

In this 2009 post, I discuss the importance of making it clear, in a contract providing for ongoing relations, whether a reference to affiliates or …

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Posted in References to Time | Leave a comment

Contract-Drafting Writer’s Block?

This summer I had the following exchange on Twitter with @DevonMSmiley: Having a spot of contract drafting writer's block…anyone have tips for how to break …

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Posted in Process | 1 Comment

Toronto Only, on December 4: “An Intensive Program in the Categories of Contract Language”

On December 3, I’m giving a public “Drafting Clearer Contracts” seminar in Toronto with my longtime partner, Osgoode Professional Development. For more information, go here. …

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Posted in Seminars | Leave a comment

Putting the Defined-Term Parenthetical at the Beginning of an Integrated Definition?

I spotted an oddity in section 1(a) of the contract providing for Jeff Bezos’s purchase of the Washington Post. Observe where the defined-term parenthetical is positioned …

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Posted in Defined Terms | 2 Comments

A Copy-and-Paste Train Wreck

A tidbit to come out this week’s panel discussion at Notre Dame Law School (see this post) was, courtesy of Glenn West, a citation to …

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

Bringing Outside Lawyers into the Law School

I made it a point to have outside lawyers play a part in my course at Notre Dame Law School. I don’t know from pedagogy, so …

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Posted in Teaching | 4 Comments

Contract Drafting: Art or Science? (I Thought of It First!)

This post by Mark Anderson last week used the title I had planned on using for a post of my own. Rather than launch a …

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Posted in Odds and Ends | 6 Comments

Pomposity in Drafting, Part Deux: “The Executive”

As one of their assignments, students taking my course at Notre Dame Law School drafted an employment agreement. Necessarily, I prepared one too. I based it on something …

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Posted in Defined Terms | 9 Comments

Pomposity in Drafting, Part One: “Attorneys’ Fees”

Don’t worry, this isn’t a discussion about where to put the apostrophe in attorneys’ fees. (But, yes, it goes after the s, to avoid getting …

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Posted in Selected Usages | 11 Comments

“Nor Shall”

As one of their assignments, last week my students at Notre Dame Law School analyzed the verb structures in the “SOW terms & conditions agreement” that goes …

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Posted in Categories of Contract Language | 9 Comments

“Business Efforts”?

Greetings from South Bend, Indiana! I’m in the middle of teaching an “intensive” three-week course on contract drafting at Notre Dame Law School. Given that …

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Posted in Selected Usages | 10 Comments

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

Here’s a list of where and when in 2015 I’ll be doing public “Drafting Clearer Contracts” seminars in the U.S. for West LegalEdcenter: March 19, …

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Posted in Seminars | 2 Comments

How I Go About Creating Templates for Clients (Plus a Testimonial)

In previous years, I’ve occasionally moaned on this blog about how I wasn’t getting as many drafting projects as I thought I should. Well, I’m doing …

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Posted in Process | 1 Comment

Second Edition of “The Structure of M&A Contracts” Being Considered

Remember my ebook The Structure of M&A Contracts? Me neither, almost. It has been available only on the Thomson Reuters ProView app. Because of various problems—for …

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Posted in M&A | 2 Comments

LegalSifter: Another Service that Aims to Tell You What’s in Your Contracts

Via this post on Profit and Laws, I learned about LegalSifter. LegalSifter’s website offers very little information. More informative is this piece on TechCrunch: Using …

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Posted in Technology | 2 Comments

“Fair”

I’ve previously considered reasonableness and good faith. (See MSCD 13.557 and this 2011 post.) Now it’s time to think about fairness. Just to set the …

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Posted in Selected Usages | Leave a comment

A Tip For All You Cross-Reference Ninjas

This post explains how to edit a cross-reference to a contract article so that the a in article is lowercase. Chris Lemens, this one’s for …

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Posted in Layout, Technology | 11 Comments

Using Technology to Assess a Law-School Contract-Drafting Assignment

I noticed this post last week on ContractsProf Blog. It’s about an online contract-drafting exercise developed by Zev Eigen of Northwestern Law School. It appears …

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Posted in Teaching | Leave a comment

Some Information About Formatting Used in the Showcase Template

The showcase NDA template (here) uses the enumeration scheme recommended in my book A Manual of Style for Contract Drafting. But another feature of the …

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

What Happens When You Eat the Fruit of the Tree of Contract-Drafting Knowledge

This week I received the following message from lawyer Tim Gilmore: I’ve been following you several years. You’re on the right track. But I’m frustrated. Ten years ago …

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Posted in Process | 1 Comment

Silent-Auction Item: For a Teenager in Your Life, Five Hours of One-on-One Coaching in Clear Writing by Yours Truly

My wife Joanne recently became executive director of the Belmont Child Care Association. BCCA operates a preschool program for children of workers in New York’s thoroughbred …

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Posted in Odds and Ends | Leave a comment

Crowdsourced Mediocrity Is Still Mediocrity

I periodically do my best to dump cold water on the notion that one can crowdsource quality contract language. I did so in this 2010 post, in this …

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Posted in Process | 5 Comments

When the 10b-5 Representation Goes Walkabout

You know 10b-5 representations, right? (Because 10b-5 representation is a term of art, I’ll let slide use of the word representation.) Here’s one from an …

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Posted in Selected Provisions | 1 Comment

“May” Can Mean “Might,” But I Sleep Well at Night Anyway

May can mean might, but I don’t think that’s any reason for me to stop recommending that you use may as the workhorse for language …

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Posted in Categories of Contract Language | 6 Comments

The Problem with “Curing” Breach (Updated)

Updated August 9, 2014: Comments by Harley Meyer have prompted me to update this post. Harley makes a couple of points. He focuses on the …

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Posted in Selected Usages | 58 Comments

“Tend”

Consider the verb tend. It means “regularly or frequently behave in a particular way or have a certain characteristic; be liable to possess or display (a …

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Posted in Selected Usages | 2 Comments

Don’t Fear the Showcase Template

Recently I had a chat with the general counsel of a technology company. We discussed whether it would make sense for the company to overhaul …

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

Where’s Ken?, Fall 2014 Edition

With the summer lull about to end, I’m planning my fall travels. I’ve listed below the trips I currently have planned. If a given trip is …

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Posted in Seminars | 1 Comment

“Shall Not … Unless” Versus “May … Only If”

Last week I saw this tweet by @lisasolomon: @KonciseD Agreement also uses "shall not…unless" construction instead of "may…only if." Keep fighting the good fight, Ken! …

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Posted in Ambiguity, Categories of Contract Language | 20 Comments

Termination for Breach: What Standard to Use?

It’s commonplace for contracts to provide that a party may terminate for “material breach” by the other party. I’m not keen on that standard: as longtime readers …

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Posted in Materiality | 4 Comments

Language of Concurrence?

There’s this: On signing this agreement, the Sponsor is paying Acme $500,000 by check toward the cost of developing the Program. I do believe that what …

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Posted in Categories of Contract Language | 18 Comments

“Inure”

Do I really have to say it? OK, here goes: inure (meaning “to take effect; to come into use”) is lame. You might know inure from “successors …

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Posted in Selected Usages | 6 Comments

Making Liquidated Damages Optional?

Because he happened to cite one of my posts on the subject, I came across this post on liquidated damages by Virginia litigator Lee Berlik. It …

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Posted in Selected Usages | Leave a comment

An Update on Retrieving Contracts from the SEC’s EDGAR System

For data nerds, recent years have seen relentless progress. More! Better! Cheaper! But that’s not the case for one subgroup—contract nerds. Many moons ago (2006), I wrote …

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Posted in Odds and Ends | 4 Comments

A Possible Exception to the Rule that You Put Autonomous Definitions in Alphabetical Order

Warning: The following is for serious defined-term geeks only. MSCD 6.18 says, “Put any set of autonomous definitions in alphabetical order.” I’d like now to …

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Posted in Defined Terms | 1 Comment

Getting Right the Temporal Aspect of Adjective Clauses

Consider the following, which relates to the consequences of Acme’s cancelling a purchase of equipment: Acme shall reimburse the Vendor for reasonable expenses that the …

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Posted in Drafting as Writing | 4 Comments

The Drafter’s Fear of the Missing Provision: Malaysia Airlines’ Insurance Coverage

Although the way I’ve chosen to earn my living has its challenges (like any other), there’s one aspect of law-firm life that I don’t miss: …

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

When People Fight Over Clear Language

Reader Vance Koven prodded me to look at this post by Marianna Brown Bettman on her blog Legally Speaking Ohio (via this post on ContractsProf …

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Posted in Odds and Ends | 5 Comments

Now Available for Free: My Webcast on Drafting and Reviewing Confidentiality Agreements

It’s West LegalEdcenter’s sensible policy to pull webcasts after a couple of years. It follows that they’re no longer offering the “Drafting and Reviewing Confidentiality Agreements” webcast that …

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Posted in Webcasts | 5 Comments

“Wherefore”

So, how long have I been doing this? About fourteen years? Well then, how come it has taken me this long to write about wherefore? Excuse …

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Posted in Back of the Contract, Front of the Contract | 5 Comments

Contract Automation: Charting a Course Between Fabulists and Traditionalists

A couple of weeks ago I saw this article in City Journal, a U.S. quarterly, by John O. McGinnis, a professor in constitutional law at …

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

An Instance of Undue Generality in the NFL’s Collective Bargaining Agreement

I was vaguely aware of news accounts of the contract travails of Jimmy Graham, a player for the American football team the New Orleans Saints. …

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Posted in Ambiguity, Bad Drafting | Leave a comment

English Contract Drafters Should Consider Using “Efforts” Instead of “Endeavours”

Generally, English contracts refer to endeavours rather than efforts. I’ve long waged a guerilla campaign against the conventional wisdom that different endeavours standards convey different …

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Posted in Selected Provisions | 5 Comments

Malpractice Claim Against Cadwalader: Defining What You Mean, Not What You Don’t Mean

A New York appellate court recently unanimously affirmed a judgment of $17.2 million against the law firm Cadwalader, Wickersham & Taft in a legal malpractice action …

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Posted in Defined Terms | 3 Comments