[Trigger warning: navel contemplation follows.] This morning I noticed the following two combative tweets, courtesy of @section_sign: https://twitter.com/section_sign/status/905408538738126848 Regular readers will know that I regularly invoke the marketplace of ideas. Well, is the marketplace of ideas in fact horseshit? I have nothing to say about that Tower of Babel, the broader … [Read more...]

What, you want to know more? Read this. … [Read more...]

[Updated 4 August 2017, 9:45 a.m. EDT] Yikes! This is my second update to this post. (I inserted the first update below, in the original post.) In the past 24 hours I've considered this issue for the first time, proposed something new, then had readers drag me in another direction. I now happily bow to the logic of those who said I should get rid of the salutation. Here's the current version of … [Read more...]

Thanks to this post on The Employer Handbook, @Eric_B_Meyer's blog, I learned about a severance agreement that provided for $2,747,400 in severance pay instead of the $80,805.97 that the parties had previously agreed on. The error arose because the company's HR person put in the contract the total amount of severance when they should have put in the amount per week. The result was that the … [Read more...]

ContractsProf Blog has this post by Brian N. Larson about a study by Stefania Passera and others that apparently shows that diagrams made a contract easier to understand. The study's findings don't come as a surprise. Plenty of contracts describe mechanisms with alternative outcomes, with those outcomes then prompting further outcomes. Tag-along and drag-along rights come to mind. Also … [Read more...]

Here's an email I received from a reader: I was interviewing for a new job 6 months ago and mentioned I am a big MSCD fan. The GC said “That is the most impressive thing you could have said.” Needless to say, I got the job. THANK YOU! I take two things from that. First, that MSCD is an established resource. (That's just as well, seeing as it has sold tens of thousands of copies.) And second, … [Read more...]

To coin a phrase, We hold these truths to be self-evident: It's preferable to draft contracts consistent with a set of guidelines for contract language, as opposed to relying on conventional wisdom, improvising, or simply copying. That's why I wrote MSCD. It's the only such set of guidelines, and with each new edition it becomes more entrenched. I'd be surprised if another set of guidelines were … [Read more...]

Go here for an article I posted on LinkedIn today, Be Afraid of Contract Interpretation. Every so often I post a particularly general piece on LinkedIn instead of on this blog, with the notion that something on LinkedIn might catch the attention of people who would never have heard of me otherwise. What I have to say on LinkedIn will generally come as no surprise to my regular readers. … [Read more...]

Here's what a reader said to me in an email: I'm frustrated. Even though I've been a lawyer for 21 years, my contract drafting skills are not what they should be for a lawyer with my experience. For example, I'm drafting a termination agreement for a consulting services agreement. A friend and I briefly discussed what should be in it. In essence, he said what I wrote won't work. The original … [Read more...]

I wrote about search-and-replace glitches in this 2015 post. Well, here's another one: You might have noticed that I've been in an efforts frenzy. As part of reassessing my position on efforts, I searched on EDGAR for a bunch of efforts variants, including the unlikeliest ones I could think of. One of them was commercially efforts. Yeah, sounds crazy, but I'd already found instances of … [Read more...]

In this post I indicate that I wasn't convinced by a treatise saying that it "sounds as if" reasonable best efforts imposes more of an obligation than does commercially reasonable efforts. Here's some background on that. I have a halfway decent ear for English usage, perhaps as a result of having grown up in a bookish family. It's an important weapon in my arsenal. It's what allows me to sniff … [Read more...]

Go here for episode 54 of The Civil Engineering Podcast, my 20-minute conversation with Christian Knutson on "How to Master the Language for Clearer Engineering Contracts." … [Read more...]

Indian law schools are partial to contract-drafting competitions. As I noted in this 2011 post, I think such competitions are a good idea. Recently someone from the boutique Indian law firm TRA told me about the competition his firm was helping to run with the National Law School of India University. He asked me whether I could think of any way I might get involved, so here’s what’s we’re … [Read more...]

You've heard of "punctuated equilibrium," right? That's the notion that the evolution of species consists of relative stability for long periods interspersed with much shorter periods during which many species become extinct and new species emerge. (Go to Wikipedia for more.) Well, bear with me. I first paid attention to severability language in this 2011 post. I revisited the subject in … [Read more...]

Here's my favorite law-conference anecdote: I'm on a panel. The topic of represents and warrants comes up, as it tends to. Another panel member is unimpressed by what I have to say. As his way of resolving the matter, he asks imperiously that a copy of Black's Law Dictionary be brought to him, and he proceeds to read aloud the definition of representation. He closes the book. Case closed, game … [Read more...]

This from a reader: For documents that I have drafted using your style manual, I do not get comments from clients or other lawyers saying, “Wow, this is so much clearer and easier to read!” So I don’t even have anecdotal evidence to support your approach. My own experience, however, is that it saves me time when I review a document drafted using your style manual. It also saves time when I … [Read more...]

Today a reader suggested to me that lawyers "use complexity as a comfort blanket." That got me to thinking about what makes contracts complicated. First, what does "complexity" mean? I suggest it can mean two things. First, that something is sufficiently technical that it requires special training to be able to understand it. And second, that something has sufficient moving parts that it's a … [Read more...]

So ends another year on the blog, a year during which 967,730 people have visited the site so far. That's a lot of visits. Here are the ten posts (from whatever year) people visited most in 2016, with the most-visited at the top: Using the Terms "Negligence" and "Gross Negligence" in a Contract "Effective Date" The Apostrophe in "Five Days' Notice" Excluding Consequential Damages … [Read more...]

Once or twice a month I send to my 3,000 subscribers a newsletter containing not only links to recent blog posts but also musings about whatever happens to have popped into my brain. I'm under no illusions that my newsletters make for gripping reading, but what the heck: in an end-of-the-year, end-of-civilization spirit, here, in reverse chronological order, are links to all my newsletters since … [Read more...]