My forthcoming work “The Structure of M&A Contracts” will be a PDF-only West publication. That raises an obvious question: will people be reading it on-screen, or will they read a printout? If I get my wish-list, the PDF will contain hyperlinks to cited authorities, the text will be hyperlinked to the endnotes and vice-versa, and all [...]
Judges and commentators have long fulminated against and/or. One particularly irate judge—perhaps spittle-flecked, with neck veins bulging—referred to it as “that befuddling, nameless thing, that Janus-faced monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he [...]
The recent Lawyers Weekly article that I linked to in a previous post contains the following: The phrase “sole and exclusive license,” for example, is common yet contradictory. “Sole,” on the one hand, means only one person has the legal right to use the product. “Exclusive,” however, actually means only one other person has that [...]
An M&A-lawyer boogeyman is “double materiality,” which ostensibly arises when a materiality qualification is included in the bringdown condition to one party’s obligation to close, as well as in one or more representations made by the other party. The concern is that double materiality could mean that even though a seller representation qualified by materiality [...]
In this May 2007 blog post I wrote about the litigation between Novell and SCO. (That post dealt with the implications of retaining drafts of a contract.) Well, last week brought further news in this saga, as a federal jury found that two key Unix copyrights belonged to Novell and not to SCO. (Click here for [...]
I’ll be in Calgary the week of April 26, in part for my “Drafting Clearer Contracts” public seminar for Osgoode Professional Development. (Click here for more information about that.) But what’s currently on my mind is that I’m free on Wednesday, April 28, until mid-afternoon. Hmm, time for a 3-hour or 4.5-hour seminar, methinks. If [...]
I generally explain the concept of ambiguity by saying that if reasonable people read a given contract provision and derive different meanings from it, that provision is ambiguous. But that doesn’t quite capture the problem that alternative meanings pose for the contract drafter. It’s not only the reasonable reader that you’re worried about. Instead, you’re [...]
Today’s issue of the New York Law Journal contains my article “The AAA Standard Arbitration Clause: Room for Improvement.” Click here to go to a pdf copy. (It’s also available here if you subscribe to the New York Law Journal.) It was fun to write, and here’s why: I got to revisit a topic, arising out [...]
Currently on my nighttable is Gods at War: Shotgun Takeovers, Government by Deal, and the Private Equity Implosion, by Steven Davidoff. Steven is a professor at the University of Connecticut Law School (click here for his faculty bio page) and is the New York Times’s “Deal Professor.” Before teaching, he practiced for ten years with [...]
On November 17 I’ll be giving a West LegalEdcenter seminar in New York. I suspect that although I’ll be in the densest BigLaw cluster in the land, BigLaw associates will be underrepresented at the seminar, as compared to company counsel and contracts professionals. And that’s been pretty much the case at all my U.S. seminars. [...]
Webcast 7 in my Drafting Clearer Contracts series of webcasts will be launched with a live session starting 1:00 p.m. EDT on Wednesday, July 22. (“Live” means that panel members will be on hand to reply, by email, to questions submitted in writing during the session.) Thereafter webcast 7 will be available on demand. Unlike [...]
Today the Law Shucks blog posted this item about a former IBM executive, David L. Johnson, who is claiming that his noncompetition agreement with IBM is unenforceable. One element of his defense is that he signed the contract in the space where IBM was supposed to sign. According to Bloomberg: Johnson told Robinson he signed the [...]
In this comment to a previous post, reader Mark Anderson expressed a preference for saying that parties are obliged to do something, rather than obligated. He suggested that use of the verb obligate is the result of the noun obligation being pressed into service as a verb. Here’s the opening paragraph of what A Dictionary [...]
In the course of considering, for purposes of today’s post on time is of the essence, how contracts are drafted in Quebec, I came across an oddity of the sort that I wouldn’t have expected to encounter in contract language—an instance of “false friends,” in other words pairs of words in two different languages that [...]
Recently I’ve enjoyed reading some thoughtful posts offering different takes on the working life in law—how to make it more meaningful, or at least how to survive. In particular, I’m thinking of Vickie Pynchon’s posts tracking how she picked herself up and dusted herself off after being laid off in 1992; click here for the [...]
It’s generally a bad sign when, barely after it begins, a sentence shifts into a set of enumerated clauses: If (1) A, (2), B, or (3) C, then X. Acme shall (1) A, (2) B, and (3) C. In such sentences, the drafter is forcing the reader to make a connection between each enumerated clause [...]
MSCD 12.258–277 discusses the distinction—or not—between immediately and promptly. Here’s another aspect of immediately—it’s often misused in connection with stuff that happens automatically. Consider the following provision: This agreement will terminate immediately upon Acme’s giving Widgetco notice of termination. I’ve stricken the immediately because it suggests, inappropriately, that a moment of time, however short, passes [...]
The second edition of A Manual of Style for Contract Drafting has been out for less than two months, and we’ve already sold almost all of the first printing. So the response has been positive, to say the least. But I’d appreciate your input on MSCD‘s binding. The first printing used “Wire-O” binding, like that [...]
In this post on his Law Department Management blog, Rees Morrision—prolific consultant to law departments—quotes a survey in the July 2008 issue of Inside Counsel as saying “33.5% of in-house counsel reported that law firm services are a commodity.” Here’s Rees’s take on this: Loyalty rates of law departments to law firms suggest otherwise, and [...]
A few books on contract drafting have been published in the last couple of years: Butt, Peter & Castle, Richard, Modern Legal Drafting: A Guide to Using Clearer Language (2d ed. 2006). Darmstadter, Howard, Hereof, Thereof, and Everywhereof (2d ed. 2008). Haggard, Thomas R., and Kuney, George W., Legal Drafting in a Nutshell (3d ed. [...]
I’m going over one of my contract redrafts. Here’s how I introduced a set of autonomous definitions: For purposes of this agreement, the following terms have the following meanings: You see this language, or some variation, in innumerable contracts. I’m not crazy about the way it groups the definitions, thereby leaving open the possibility that [...]
What’s wrong with this picture: “Subsidiary” includes only any company in which the applicable entity, directly or indirectly, has a beneficial ownership interest of greater than 50 percent. Well, includes only equates to means— what includes gives, only takes away. So use instead means.
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, [...]
The opinion in Johnson & Johnson v. Guidant Corp. (the case I discuss in my post “‘Willful’—It’s Ambiguous”) contains the following statement: The relevant language in the no-solicitation clause defines the term “Representatives,” with some circularity, as “any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative.” This reflects a common misconception. [...]
Today the Canadian Radio-television and Telecommunications Commission released a decision in the famous “comma case.” Click here for a copy of the decision. (You may recall that I acted as expert for Rogers Communications Inc. in this dispute; click here for my most recent post on this dispute.) This time the Commission sided with Rogers. [...]
Today’s issue of the New York Law Journal contains my article “Wordsmithing.” Click here for a pdf reprint; it’s also available on the GC New York website (free registration required). Regular readers of this blog will recognize the recent cases I refer to. And the article contains “before” and “after” versions of a contract extract. [...]
I recommend that you give serious thought to never using it being understood. In the vast majority of instances, it being understood is equivalent to it is agreed. (Indeed, often enough the phrase used is it being understood and agreed.) When used in this sense, it being understood adds nothing, seeing as the contract lead-in [...]
At the ABA Section of Business Law annual meeting, which this year is being held in San Francisco, I’ll be on the panel for a program entitled “How to Write Better Business Documents.” It’s being sponsored by Business Law Today and will be held on Friday, August 10th, from 2:30PM to 4:30PM. I’ll be speaking [...]
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 [...]
The latest addition to the American Bar Association’s series of “ABA Book Briefs” podcasts is an interview with yours truly. In it, I talk for ten minutes about MSCD and some current issues in contract drafting. Click here to listen to it. Regular readers of this blog will find that the podcast doesn’t contain any [...]
My New York “Contract Drafting—Language and Layout” seminar took place yesterday. I haven’t yet reviewed the evaluations, but the participants appeared to have found it very useful. For my part, I enjoyed myself—giving a seminar is a good antidote to staring at the computer screen. And I remembered to mute the wireless microphone during the [...]
