Thanks to the Legal Writing Prof Blog, I learned of an article entitled “The Ethics of Contract Drafting.” It’s by Gregory M. Duhl, associate professor at William Mitchell College of Law. It will be appearing in the Lewis & Clark Law Review, but for those who can’t wait, it’s available on SSRN by clicking here. Here’s [...]
Longtime readers of this site will be familiar with the name Business Integrity, developer of ContractExpress (formerly DealBuilder) document-assembly software.
Fixing contract drafting involves fixing not only language but also process, and fixing the process means using document assembly. So I’ve long had a keen interest in document assembly. About three years ago I became acquainted [...]
Yesterday I spent the day at West’s headquarters in Eagan, Minnesota, with a dozen or so journalists and bloggers being introduced to WestlawNext, the next generation of Westlaw. More about that next week, when WestlawNext is launched.
But kicking the tires of WestlawNext caused me to consider how computer-assisted legal research is used in contract drafting. [...]
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, and-the-winner-is nature [...]
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 [...]
I’m occasionally asked about how one might go about creating a searchable digital archive of a medium-sized company’s hard-copy contracts. It’s nothing I’ve had any direct experience with. If you have any suggestions, I’d be interested to hear them, and I suspect other readers would too.
The history of law-firm template-contract initiatives is not a happy one. Various factors conspire against a law firm successfully implementing and maintaining rigorous templates:
Law firms are generally asked to draft a broad range of documents. Any one law firm may not be asked to handle a given kind of transaction often enough to warrant devoting [...]
While lurking at the Business Integrity booth at the ACC annual meeting, I’ve had a chance to discuss with many people their company’s contract-drafting requirements. Some of those I’ve spoken with have been in the procurement department; others have been in sales. I haven’t spotted any particular pattern.
That raised in my mind the question of [...]
In this post on his licensinghandbook.com blog, Jeffrey Gordon suggests that lawyers should consider the value that contract specialists can bring to the contract process. That got me to wondering whether any such contract specialist would have to be a lawyer. In other words, if a nonlawyer works on a contract, does that constitute the authorized practice [...]
I was recently reminded of this article on the role of contract managers, as well as this follow-up article prompted by the recession. Both were written by Tim Cummins of the International Association for Contract and Commercial Management (IACCM).
These articles caught my eye because my public seminars and my in-house seminars at companies are attended by [...]
I was pleased to receive the other day the following wry email:
You’ve inspired me since your presentation to our firm back in May. I used to be content with my drafting before I met you, but I now live in constant internal turmoil.
My correspondent’s state of mind comes as no surprise. To master contract language, [...]
Publication of Chris Anderson’s book Free: The Future of a Radical Price has prompted a lot of online discussion about the extent to which a thriving business can be built on giving stuff away for free.
At My Shingle, Carolyn Elefant has offered some thoughts on “Biglaw Free and the Solo.” Here’s the part that grabbed my [...]
I’ve recently been emphasizing, in print and in speaking engagements, that for any organization that wants to gain control of the drafting process, a necessary first step is to adopt a house style for contract drafting. (I know of three law firms that are currently working on adopting a house style.)
What should such a house style look [...]
The current issue of The Lawyers Weekly, the Canadian periodical, contains a nifty article on how to make contract drafting a commodity. Yours truly is featured prominently. Click here to go to a pdf copy.
Any observations?
I’ve recently seen and heard references to companies offshoring the task of drafting contracts. For example, this article in today’s London Times says that Rio Tinto has hired a team of Indian lawyers “to work for it on tasks such as reviewing documents and drafting contracts.”
If that means having your offshore lawyers handle hundreds of [...]
It seems as if every couple of months I find out about another company that’s somehow involved in the contract-automation business.
Yesterday I learned about Drawloop. It offers general document-automation services, including automation of routine sales contracts, presumably using mail-merge type functionality. That seems like a sensible niche, one that offers high volume without the complications that [...]
For the heck of it, every so often I search “contract drafting” on Twitter. A few times I’ve been pleasantly surprised to spot a mention of my book. Once someone who evidently was then in one of my seminars tweeted that the seminar wasn’t as much fun as her dinner with an old friend the [...]
Legal OnRamp, the online forum for in-house counsel and invited outside lawyers and vendors, has announced the “FMC Technologies 1° Law Litigation Value Challenge.” It’s a beauty contest for law firms interested in doing FMC’s litigation work.
I suppose what distinguishes it from the run-of-the-mill beauty contest is that Legal OnRamp represents a particulary public platform. [...]
It’s commonplace for performance to begin before a contract has been signed, with the contract being signed once all necessary approvals have been secured. MSCD 1.32 recommends that in such contexts, you put in the introductory clause the date the contract is signed, rather than the date performance began. (That assumes you’re using a date [...]
At my Osgoode Professional Development workshop in Toronto last week, a participant helpfully mentioned a recent English case in which the court held that transferring the signature on an incomplete draft deed or contract to a final version wouldn’t be effective if the changes made were so significant that the final version was arguably a [...]
Regular readers of this blog will know that I’m a fervent booster of using document assembly to draft contracts. I keep banging on that drum for two reasons: First, document assembly represents the only way to put mainstream contract drafting on a rational footing in terms of economics and quality. And second, every so often [...]
I’ve long read the Strategic Legal Technology blog by Ron Friedmann. Ron has spent most of the last two decades in legal technology, but recently he has shifted his focus to legal outsourcing, becoming SVP Marketing for Integreon. In his blog, he writes about innovation, or the lack of it, in the legal profession generally. It [...]
I’ve just returned from my trip to Philadelphia to speak at the DELVACCA conference. It was great finally meeting my co-presenter, Karen Gray of Christie’s. She’s a great speaker, and I think we made an effective team. I styled myself “Mr. Theory” and Karen “Ms. Practice.”
Included in our handout was a table listing the products [...]
Through the contract-automation grapevine I heard about Kingsley Martin, president of KIIAC LLC, a company using proprietary software to help customers analyze contract models. Kingsley was kind enough to speak with me about KIIAC and show me how the software works. It’s sophisticated and intuitive, and I think it meets a real need, so I [...]
I’ve written before about contract-lifecycle-management (CLM) software. (Click here for some general thoughts on CLM; the ACC Docket article I co-authored also discusses CLM.) I’m pleased that this post allows me to revisit the topic.
During a trip to Switzerland a couple of years ago I met Chris Craddock, the marketing director of Symfact, an increasingly [...]
I recently leafed through Business Contracts: Turn Any Business Contract to Your Advantage (Entrepreneur Press 2007). The publisher was kind enough to send me a review copy. It’s by Laura Plimpton, a lawyer. As the title suggests, it aims to help businesspeople get to grips with contracts.
In just under 200 pages, Plimpton discusses a broad [...]
In MSCD 3.57, I use the term “frontloading” for the process of pulling select information out of the body of the contract and placing it at the top of the contract.
In MSCD 3.63 I acknowledge that instead of frontloading information, you could put it in a schedule. Some contracts—including one I’m reviewing at the moment—are [...]
Some people regard the contract process as an adversarial one. I encountered a great example of that recently: someone I’ve been corresponding with used the word “opponent” in referring to a lawyer representing the other side in a deal. When the other side is the enemy, you’re free to indulge in “creative ambiguity” and other [...]
Reader Melvin told me about this item on Lexology by Jeffrey P. Drummond of Jackson Walker LLP. It’s about how the Third Circuit Court of Appeals reversed the lower court in a qui tam action brought by a doctor against a hospital under the False Claims Act.
At issue was the relationship between the hospital and [...]
To accomplish any given drafting goal, one usage will be more efficient than the others. Once you accept that notion, it follows that it would make sense for drafters to join other writers in using a manual of style. That’s why I wrote A Manual of Style for Contract Drafting.
Use of a manual of style [...]
Today Rees Morrision posted this item on his blog. It makes the point that groups are good for sharing information but not so good for making decisions. It also quotes an academic as saying that “Groups are not helpful in getting people to make better decisions, but they’re helpful in getting people to feel more [...]
This post earlier this month considered how to ensure that people on the other side of a deal don’t balk at MSCD-compliant language. But what if it’s your outside counsel that’s not playing along?
In this post from last weekend I said that company law departments are best positioned to drive change, in that they’re the [...]
A couple of recent posts (this one and this one) prompted some gnashing of teeth and rending of clothes by commenters frustrated at the pushback they encounter when they use clear, efficient, and modern contract language. So I thought it might be worthwhile for me to elaborate on something I offered in this comment. Here [...]
Thanks to Bryan Sims of The Connected Lawyer, I came across (1) this useful post by TechnoEsq on the different ways of signing legal documents electronically and (2) this post by Ernie Svenson, wearing his PDF for Lawyers hat, on one of those ways of signing, namely using digital signatures.
By way of a reminder, digital [...]
Rees Morrison, prolific blogger on all things law-department-related, posted this item about free legal forms available online. Here’s what it says:
As the online world inexorably proves that information wants to be free, in-house counsel will increasingly have more forms of agreements available online, and at no cost. One example of the genre is YourFreeLegalForms.com.
According [...]
David Miller is general counsel of Rogers Communications, the Canadian communications company. I met him in 2007 when, shortly after helping them out in the Canadian comma dispute, I was invited to give a day-long seminar at Rogers. That seminar contributed to my love affair with Canada, as David attended the entire seminar. From start [...]
Longtime reader Michael Fleming sent me the following cry of pain:
Below is a little taste of a markup I received from the other side of a deal I’m working on:
MASTER SERVICES AGREEMENT
This Mmaster Sservices Aagreement (“Agreement”) is dated ________, 20__ (the “Effective Date”) and is between FLEMING’S CLIENT, INC., a Minnesota corporation (“Client”), and IDIOTIC [...]
I recently received the following inquiry from reader Kathleen:
I was wondering, do you have a proofreading system or any tips? Especially for when there is quick turn-around and I don’t have time to let a document sit to come back with fresh eyes (and I don’t have access to someone who can proofread for me). [...]
As one of the assignments in my Penn Law contract-drafting course, this semester I once again asked my students to redraft part of a contract currently being used by a company.
This time, I selected a template master services agreement submitted by a Fortune 500 company in response to this May 2008 post. The process this time [...]
I’ve kicked the tires of a good number of information-technology tools aimed at making the contract process more efficient, but I hadn’t encountered a product that aimed to simplify the task of reviewing a contract drafted by the other side in a transaction.
That changed when I was contacted last week by Scott Soloway, founder and [...]
MSCD 3.38 invites readers to request a free 30-day trial of the Numbering Assistant, the paragraph-numbering tool developed by Payne Consulting Group that allows you to quickly and simply apply one of the two flavors of the MSCD enumeration scheme to any contract in Word.
Well, Payne Consulting Group is finally in a position to respond [...]
For most of us, using document-assembly to draft contracts remains an apparently distant prospect. But for some, it’s a fact of life.
For example, I’ve previously mentioned the AIA’s Contract Documents system. Well, document assembly is sufficiently accepted in the construction industry that it now has a competitor, ConsensusDOCS.
But a particularly interesting example of document assembly’s [...]
Through this post by Michael Fleming on the Cyberspace Lawyer’s Blogger, I learned that the Cyberspace Law Committee of the ABA Section of Business Law is proposing to draft new model contracts. This project sounds interesting:
The Liberty Alliance Project is, in its own words, working to “enable a networked world based on open standards where consumers, citizens, [...]
I have a soft spot for nondisclosure agreements, or NDAs (also known as confidentiality agreements): They’re relatively short and straightforward, yet they’re subtle enough that drafters routinely screw them up. And they’re commonplace; in fact, they’re something of a nuisance—the cockroach of the contract-drafting world. These characteristics mean that they’re the obvious guinea pig for [...]
Once in a long while I see a template contract that uses Word’s line-numbering feature to include line numbering in the left margin of each page.
The idea, obviously, it to allow anyone involved in drafting or negotiating a contract based on the template to pinpoint language at issue—Let’s strike the word “material” on page 46, line [...]
I said in this blog post that I planned to do a post about Deal Proof. Well, here it is.
Deal Proof is a Thomson West product; click here to go to the relevant page of the Thomson West website. It’s a document-analysis and proofreading tool that many of the big firms subscribe to. It checks [...]
Law firms could take a number of steps to put their contract drafting on a more rational footing. They could adopt a contract-drafting “house style” that recommends usages to employ and usages to steer clear of. They could offer rigorous training. And they could implement a centralized template initiative, maybe even one that makes use [...]
In this May 2007 post I wrote about the signature-automation tool EchoSign. And my ACC Docket article with Brian Quinn mentions DocuSign.
Well, there are other fish in that particular sea. I noticed that The Connected Lawyer—always a source of interesting information—recently posted about one of them, ConXPoint.
Another is Sertifi. I’ve corresponded with John Stojka, a [...]
One frustrating aspect of my self-appointed role as freewheeling contract-drafting guy is that I’m not involved, day in and day out, in drafting contracts. As a result, I don’t have occasion to gain hands-on experience with the nifty information-technology tools that are now available to help the drafter.
I wrote about a bunch of them in [...]
Most of what I do addresses how to express clearly and efficiently whatever you want to express in a contract. But that only goes so far, because no amount of clarity will help you if you simply mishandle an important substantive issue.
This story in the ABA provides a reminder of that. A Texas law firm [...]
