In this September 2006 blog post I examined the phrase form and substance, as in “an opinion of counsel in form and substance satisfactory to the Buyer.” That phrase, along with the variant form and content, is found in language of obligation requiring the parties to enter into a given contract or requiring one or [...]
I’ve long been familiar with two big names in logic-driven document assembly, namely HotDocs, by LexisNexis, and DealBuilder, by Business Integrity. But over the past year I’ve increasingly heard another name mentioned, namely Exari. It’s the name of both a company and its product; the company is based in Australia. A few months ago I [...]
Eric Goldman—he of the Technology & Marketing Law Blog and Goldman’s Observations Blog—recently told me about an interesting case, EEOC v. Regal-Beloit Corporation, 2007 U.S. Dist. LEXIS 31818 (W.D. Wis. May 1, 2007). (Click here for a copy.) It relates to what can happen when you say to the other side in a transaction that [...]
One unfortunate aspect of my life as a drafting ronin is that my workload is so utterly varied and unpredictable that I’m not able to use most of the information-technology tools that promise to brighten the life of the contract drafter. I’ve remained outside the candy store, with my nose pressed against the window. In [...]
In my recent article on using wikis in the contract-drafting process, I suggested that a simpler way to capture the collarborative aspect of wikis without any of the anarchy would be to use an online-collaboration tool such as Google Docs. So today I noted with interest an article in Legal Technology entitled “Time for Lawyers [...]
I’ve recently been thumbing through Translating Law, by Deborah Cao, associate professor at the School of Language and Linguistics, Griffith University, Queensland, Australia. It appears to be a useful resource for those who find themselves translating legal documents. I would have thought that they need all the help they can get. In particular, I don’t [...]
Each law firm where I worked doubtless had a written records-retention policy, but I was blissfully unaware of it. Instead, I and at least some of my colleagues did whatever we thought appropriate. In that regard, the one question that seemed to crop up quite often was whether after a deal closes one should retain [...]
For this first post in an occasional series about contract lifecycle management (for more background, see this introductory post), Ashif Mawji, president of Upside Software Inc., was kind enough to take the time to speak with me. Q: Ashif, your contract lifecycle management (CLM) product is UpsideContract, which is now in Version 5. In a [...]
My interest in contract language is largely a function of my interest in process. In particular, readers of this blog will be familiar with my interest in document assembly. An industry has built up around helping companies manage all aspects of the contract process; the discipline is referred to as “contract lifecycle management,” or CLM. [...]
Last year the New York Law Journal published my article “Copyright and the Contract Drafter.” I’d now like to revisit who owns copyright in a contract, outside counsel or the client. To set the scene, here’s an extract of my article: A client asks its law firm to draft a form of agreement for a [...]
IACCM‘s email updates are a reliable source of interesting leads, and the April update was no exception, in that it mentioned EchoSign, a company that offers a “signature automation solution” of the same name. Here’s how EchoSign (the product) works: You email a contract for signature through EchoSign. EchoSign automatically adds a machine-readable fax cover [...]
A few days ago, in a comment to my post on justified text, reader j-lon had, in part, this to say: Actually, a lot of stuff in your book is [a tough sell to people sometimes]. Much of it makes sense to me, and I agree with it. But I also spent a number of [...]
Because so much litigation has its roots in deficient drafting, I keep half an eye on new case law, and I can be counted on to leap on anything that has a bearing one of my pet subjects. But I suspect that most cases that arise out of poorly drafted contracts don’t involve hot-button drafting [...]
One of the pleasures of contract drafting is that the parties are as a general matter left to their own devices. Of course you have to structure any given transaction in a way that takes into account legal, tax, regulatory, or other considerations, but as a rule how you do that is up to you. [...]
Today’s issue of the New York Law Journal contains, in the “GC New York” section, my second bi-monthly “Contract Drafting” column. Entitled “Sending Contracts Offshore,” this column explores the possible benefits to U.S. companies of having their contract-related work performed outside the U.S. It also discusses factors to bear in mind when deciding whether to [...]
In this post, Rees Morrision of the Law Department Management blog notes how some law firms are helping law departments implement document-assembly initiatives. I’m glad to see that document assembly is gaining ground. But given the questionable quality of mainstream contract drafting at even the biggest law firms, I suspect that such arrangements are susceptible [...]
On April 11–13, the American chapter of the International Association for Contract and Commercial Management (IACCM to its friends) will be holding in New Orleans its “5th Annual Forum on Commitment Management: Shaping Change and Driving Value Through Lean Contracting.” (Click here for more information.) IACCM is an organization geared to the needs of contract-management [...]
When you revise a draft contract, you want to be able to show the changes. You can do that using Word’s “Track Changes” feature, or you can use dedicated redlining software such as DeltaView or ChangePro. I haven’t yet looked at this area closely, so I’m happy to be able to steer you towards this [...]
A recent post on the Exari document assembly blog suggests that document assembly is increasingly being used to generate business contracts. (Thanks to Dennis Kennedy for the lead.) By the way, Exari is, in their words, “an enterprise document assembly system that sets the standard for contract authoring and complex document production.”
Consider the following quotation: “We see partners who are doing the same work they did as associates,” he says. “If they’ve been promoted, why should they still be writing contracts?” It’s from this article in Corporate Counsel about how law departments are increasingly requiring outside counsel to implement technology. It was uttered by the director [...]
I just learned a new term—”sticky contracts.” It refers to the tendency of drafters to stick with a given form contract, even if it contains suboptimal provisions. Gordon Smith has a post on the subject at the Conglomerate blog. Gordon discusses some possible causes of stickiness. As I suggested in a comment to his post, [...]
Today’s issue of the New York Law Journal contains my first bi-monthly “Contract Drafting” column. It’s in the inaugural issue of a new monthly section, “GC New York.” (Click here to go to a copy of the column on the “GC New York” website; in the future, you may need to register. You may find [...]
Reader David Munn recently wrote this item regarding an interview in which Tim Cummins of the International Association for Contract and Commercial Management asked the heads of Legal and Audit at Scottish & Newcastle, one of the world’s largest brewers, about their contract simplification program, called Pathclear. Click here to go IACCM’s web page about [...]
If you want to know more about what’s involved in adding an electronic signature to a contract, I suggest that you look at this post by Dennis Kennedy. In addition to links to some useful background information, it includes a link to a post by Adobe’s Rick Bornstein on creating and using signature stamps in [...]
From Imke Ratschko’s useful New York Small Business Law blog I learned about an article in Legal Technology entitled Looking Outside the Firm for On-Point Work Product. It’s by Justin Hectus, Director of Information at Keesal, Young & Logan, a 75-lawyer California law firm. In this article, the author discusses the value of retrieving, and [...]
“Are You Wasting Time Drafting?” is the headline of an advertisement that the American Institute of Architects placed in the December 2006 issue of the ABA Journal. This ad touts the benefits of the AIA’s Contract Documents software, which was updated in November 2006. Contract Documents is a comprehensive Microsoft Word-based document-assembly program for preparing [...]
I recently noticed that MSCD is mentioned in a report on an ABA model agreement. More specifically, 61 Business Lawyer 1197, published in May 2006, contains a report on the model limited liability company membership interest redemption agreement prepared by the Limited Liability Company Subcommittee of the Committee on Partnerships and Unincorporated Business Organizations, Section [...]
In a press release issued today, Payne Consulting Group announced that it has supplemented its Numbering Assistant® software to incorporate the enumeration schemes recommended in A Manual of Style for Contract Drafting. (Go here for a copy of the press release.) I’ve finally updated the “Software” page of this site to reflect this arrangement. In [...]
Last week I held an all-day seminar for a group of lawyers from a big company. A good time was had by all—they asked plenty of questions and apparently came away thinking that my approach had real merit. Given that I recently posted an item suggesting how law-firm associates might navigate obstacles to change in [...]
The New York Law Journal recently published my article “Copyright and the Contract Drafter.” (Click here for the text of the article.) If the subject matter sounds familiar, that’s probably because this article consists of a mash-up of my two blog items on the subject. (Here and here.) This is the first time I’ve recycled [...]
Earlier this year, I published an article suggesting why law firms might want to think about bringing in an outside speaker—presumably moi!—to speak about contract drafting. (Go here for a copy of that article.) But when I speak at law firms, I make a point of discussing some potential obstacles to associates’ changing the way [...]
Dennis Kennedy recently mentioned on his web site a new article on document assembly. It’s by Darryl R. Mountain, it’s called Disrupting Conventional Law Firm Business Models Using Document Assembly, and it can be found in the International Journal of Law and Information Technology. (A pdf version is available here.) It’s a thoughtful article, but [...]
My previous post on the contract drafter as copyright violator sidestepped a very pertinent question—under U.S. law, who owns the copyright in a contract that a law firm drafts for its client? Law Firm or Lawyer? This question has two parts. First, as between a law firm and the lawyer who drafts the contract, who [...]
Earlier this year I redrafted a complex commercial agreement and sent it off to the client. I received in response a comment that I hadn’t expected at all—that the readability score for my draft was rather low. This caused me to scratch my head—I’d never given a moment’s though to readability tests. So I did [...]
In the past ten days, I have twice had people mention to me, in the course of conversation, the notion of “tested” contract language. The idea is that while contract prose could certainly be improved, changing it would be risky—traditional contract language has been litigated, or “tested,” and so has a clearly established meaning (is [...]
I’ve been filling some gaps in my knowledge of Microsoft Word, and while browsing Word’s online “Help” database recently I was reminded of one of my favorite microtopics—“curly” and “straight” quotation marks and the role they play when you review contracts drafted by the other side to a transaction. In a serif typeface such as [...]
A forthcoming Missouri Law Review article by Davida Isaacs—it was featured in a recent item on the Wall Street Journal’s Law Blog—discusses whether one could bring a claim for copyright infringement based on unauthorized copying of litigation documents. This article was also mentioned in an item by Gordon Smith on Conglomerate Blog regarding whether contracts [...]
