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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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, [...]
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. [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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, [...]
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, [...]
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 [...]
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 [...]
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 [...]
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 [...]
A few months ago someone at a public company mentioned to me that her department was about to embark on a redraft of their templates. I was familiar with the subject matter, so I knew that the templates must be complex. I recently checked in with her to see how the process was going. In [...]
The December 10, 2007 issue of The New Yorker contains a fascinating article entitled “The Checklist.” It’s by Atul Gawande, a surgeon who’s also a staff writer at The New Yorker. The article discusses how using checklists—a process pioneered by a critical-care specialist named Peter Pronovost—significantly improves the consistency of the extremely complex care administered [...]
A reader brought to my attention a recent post on the blog of Mike Dillon, general counsel of Sun Microsystems. It describes how Mike had Sun’s form of contributor agreement revised after someone complained that it was too wordy and complicated. As Mike explains, contributor agreements are used by most open-source companies and communities to [...]
I’m back from another foray to Toronto, for a seminar at Osgoode Professional Development and another at a law firm. (Greetings, Toronto newcomers to this blog!) Although there’s always room for improvement, both seminars went well. But I’ve come to expect that occasionally amid the favorable evaluations will be one by a seriously unhappy participant. [...]
Each semester that I teach, I inflict a series of drafting assignments on students in my Penn Law contract drafting class. This semester, the final assignment—the grand climax!—consisted of redrafting the first five pages of a master services agreement submitted to me by a major financial-services company in response to this invitation I posted on [...]
The December 2007 issue of the ACC Docket, the magazine of the Association of Corporate Counsel, contains the article “Transitioning Your Contract Process from the Artistic to the Industrial,” by Brian Quinn and yours truly. It provides an overview of issues that companies face in controlling the contract process and discusses some useful tools that [...]
Earlier this week I received the following email from a reader: Could you please do a post about your thoughts on enforcing contracts that use faxes or pdf scans as the only proof of the other party’s acceptance? People seem very reluctant to send ink-on-paper originals these days. The Uniform Electronic Transactions Act (adopted in [...]
A new document-sharing site, docstoc, has just opened to the public. Its slogan is “Find and share professional documents.” Here’s one of the FAQs: What is docstoc? docstoc is a user generated community for sharing professional documents. Find a vast quantity of high quality legal, business, technology, educational, and creative documents for free. docstoc allows [...]
As I was packing up after a recent in-house seminar, one of the participants—I’ll call him Sam—came up to me to discuss a point I had made. I had said that the phrase indemnify and hold harmless is pernicious, in that it invites litigators and judges to find nuances of meaning where most likely none [...]
The Times of London has published the first of six excerpts of Richard Susskind’s new book, “The End of Lawyers.” (Click here to go to the excerpt.) The book will be coming out in May 2008. Susskind is a well-known English commentator on law and technology. I’ve previously had occasion to mention him, namely in [...]
I’ll be in Chicago October 28–31, attending the annual meeting of the ACC (the Association of Corporate Counsel). And I’ll be attending as part of the DealBuilder team. DealBuilder is the leading logic-based document-assembly software. It’s developed by Business Integrity, a company with an impressive roster of clients. I’ve long said that only by embracing [...]
I’ve occasionally worked on transactions involving parties who plan on engaging in discrete projects from time to time. Generally these transactions have been structured so that one contract governs unchanging aspects of the relationship—perhaps payment, delivery, dispute resolution, and plenty of other matters—and a separate contract governs each project and specifies what needs to be [...]
I recently spoke with a large company that was preparing to drastically reduce the number of template contracts that its lawyers and business people had to work with. The process was going to involve close review of its current templates, of which there were dozens. That seemed like a daunting prospect. Around the same time, [...]
Yesterday I encountered an article that discusses why Sarbanes-Oxley should be of concern to anyone who’s responsible for a public company’s contracts. There are doubtless other works on this subject, but I’m cheerfully unaware of them. Here’s the citation: Colin P.A. Jones, Sarbanes-Oxley and the Inch-Thick Contract, 5 Richmond Journal of Law and Business 1 [...]
I’ve intermittently pondered what to call the contracts one copies, in whole or in part, when drafting a new contract. Contracts Prepared for Use in Future Transactions First, consider those contracts that are prepared for use in future transactions and so contain blanks, placeholders, and perhaps suitable annotations. What should they be called? Did you [...]
I recently encountered this article about drafting a mediation settlement agreement. The fact that it was published by the Section of Litigation of the ABA reminded me that many litigators apparently dabble in contract drafting in order to draft settlement agreements. I find that a slightly scary notion, as the technical nature of contract drafting [...]
A reader alerted me to this post on Above the Law. It’s about a letter that a Big Law corporate associate sent to his firm explaining exactly why he was pleased to be leaving the profession. Here’s the pertinent bit: I do not enjoy the practice of law. At all. I find it extremely tedious [...]
In this December 2006 post I discussed ways of retrieving contracts that have been filed on the U.S. Securities and Exchange Commission’s EDGAR system. In a comment I mentioned an additional source, RealDealDocs, but noted that I hadn’t kicked their tires. Well, I still haven’t, because I’m happy doing my own searches (for free) on [...]
In this post I discussed language to use when incorporating into a contract terms stated in an ancillary document—including a web page—that isn’t attached to the contract. I subsequently invented the term “virtual attachment” to describe any such ancillary document. (If you can think of a better term, I’d be delighted to hear it.) One [...]
In the past few months I’ve been introduced to some impressive information-technology tools. (Click here, here, here, and here to see the related posts.) My introduction to Litera IDS has been particularly memorable, given its functionality, the need it aims to meet, the lack of any real competition, and the fact that I had no [...]
