My “Bamboozled by a Comma” Article Is Now in Print

Remember my article Bamboozled by a Comma: The Second Circuit’s Misdiagnosis of Ambiguity in American International Group, Inc. v. Bank of America Corp.? Well, it's now in print, in The Scribes Journal of Legal Writing. Go here for a PDF. The citation would be to 16 Scribes J. Legal Writing 45 (2014–15). The article seeks to debunk a variant of the principle of interpretation known as "the rule … [Read more...]

University College London 2 November 2015 “Drafting Clearer Contracts” Seminar: Registration Now Open

I've previously mentioned that on 2 November 2015 I'll be returning to University College London to do a public "Drafting Clearer Contracts" seminar with the UCL Faculty of Laws. Well, registration is now open: go here. Check out toward the bottom of the page testimonials from people who took part in last year's UCL seminar. And I just came back from doing an in-house seminar for an English law … [Read more...]

The Time for Taking Action “Upon” Something Happening

In addition to analyzing topics that are entirely new to me, part of what I do is fill small gaps in MSCD's coverage. So in that spirit, here's a neat little gap-filler, fed to me by a law student. The case is IPE Asset Management, LLC v. Fairview Block & Supply Corp., 123 A.D.3d 883, 999 N.Y.S.2d 465 (2014) (PDF here), a New York appellate opinion. The plaintiff, as purchaser, and one of … [Read more...]

Two Language-of-Performance Variants

Last night I saw the following tweet from @kemitchell: Ah, variants on a category of contract language, namely language of performance! Here's the relevant bit of MSCD 3.20: If you omit hereby from Doe hereby purchases the Shares, it would be clear from the context that the intended meaning isn't that Doe is in the habit of … [Read more...]

There’s More Than One Way to Sell a Company

Yesterday ContractsProf Blog published this guest post by Tina Stark. It serves as a reminder that drafters should distinguish sale of a company from a shareholder's selling shares. It also serves as a reminder that there are different ways to sell a company. Here's the gist of it, from Tina's post: In  Buckingham v. Buckingham, 14335 314297/11, NYLJ at *1 (App. Div., 1st, Decided March 19, … [Read more...]

Being Specific in Contracts Can Help Avoid Confusion When Circumstances Change

Recently Eric Goldman (otherwise know as @ericgoldman) alerted me to In re SuperMedia, Inc., an opinion by the Delaware U.S. Bankruptcy Court. (Go here for a PDF copy.) It has a lesson to offer regarding how to avoid confusion over whether contract terms apply to changed circumstances. Marketing company SuperMedia had a contract with Yellow Pages Photos, Inc., a provider of stock images. Here's … [Read more...]

Thoughts on Style Versus Substance

There's style, and there's substance, no? Well, not quite. Some drafting decisions don't affect meaning. That includes all decisions relating to the look of a document. It also includes some decisions regarding wording. Witless archaisms such as witnesseth don't affect meaning. And consider Acme may purchase the Shares and Acme is authorized to purchase the Shares. I recommend using the … [Read more...]

Bringing Outside Organizations into the Law School

In addition to bringing in outside lawyers to take part in my “intensive” Contract Drafting course at Notre Dame Law School (as described in this post), I wrapped up the course with a drafting project for an outside organization. More specifically, we prepared our version of a new template contract for Girl Scouts of the United States of America (GSUSA). For a number of years now, I’ve arranged … [Read more...]

The Challenges of Document Assembly and How to Overcome Them

Here are some thoughts I put together for the recent IACCM "ask the expert" call that I did with Tim Allen, Business Integrity's vice president–North America. I usually spend most of my time discussing what ails traditional contract drafting—dysfunctional language and the dysfunctional copy-and-paste process. But a lot of us are now all too familiar with the problems, so I’ve started spending … [Read more...]

My New Article on “Best Efforts” from the Canadian Perspective

The May 16 issue of the Canadian periodical The Lawyers Weekly contains my article With "Efforts" Provisions, Reasonable Is Better Than Best. Go here for a PDF. It's addresses the Canadian caselaw, but it should be of interest to anyone who has wondered about how to handle best efforts versus reasonable efforts or any other efforts variant. … [Read more...]

Out Now: My Book-Review Essay “Dysfunction in Contract Drafting: The Causes and a Cure”

Transactions: The Tennessee Journal of Business Law has just published my book-review essay Dysfunction in Contract Drafting: The Causes and a Cure. (Go here for a PDF copy.) It's a critique of the book The Three and a Half Minute Transaction: Boilerplate and the Limits of Contract Design, by Mitu Gulati and Robert E. Scott. I know what you're thinking: "Law review article? Zzzzzzzzzzzzz." But … [Read more...]

Exploring “Joint and Several”

[Revised 1:50 p.m. EDT, April 26, 2012, to reflect comments by Vance, Mike, and Guest. In the original version, I didn't explore the procedural side. And further revised 6:00 a.m. EDT, April 30, 2012, to eliminate the words "joint" and "several" from my proposed language.] In this 2007 post on the AdamsDrafting blog I discuss the phrase joint and several. But it doesn't begin to adequately … [Read more...]

Is What I Do “Opinion”?

Recently on Twitter, Lawrence Hsieh (aka@ContractAdviser) compared me to longtime sports-radio provocateur Mike Francesa. And the next day a reader emailed me to say, among other things, “I like reading your comments but you are, I have to say it, opinionated!” So am I just spouting opinion? First, let’s get our terminology straight. On the one hand, there are facts—information that can … [Read more...]

ContractExpress QuickStart + Koncision's NDA Template = Turnkey Contract Automation

I'm in Chicago for the Inside Counsel 2012 SuperConference. I'll be on a panel later today; go here for the agenda. But that's not what this post is about. Instead, I wanted to mention that Business Integrity has launched ContractExpress QuickStart for NDAs. For a complete description, go here, but it's essentially a prepackaged and hosted configuration that would allow a company to set up in … [Read more...]

The U.S. Supreme Court Dabbles in Part-Versus-the-Whole Ambiguity

In an opinion issued this week (here) the U.S. Supreme Court considered the alternative possible meanings of "not an." Here's the relevant passage: Truth be told, the answer to the general question “What does ‘not an’ mean?” is “It depends”: The meaning of the phrase turns on its context. “Not an” sometimes means “not any,” in the way Novo claims. If your spouse tells you he is late because he … [Read more...]

Some Thoughts on the ACC’s “Contract Advisor”

Last week saw the launch of the ACC’s “Contract Advisor.” Lawrence Hsieh (aka @ContractAdviser—no relation!) craftily suggested on Twitter that he was looking forward to hearing my views on Contract Advisor. Now here I am, taking the bait. That’s because the only reaction I’ve seen thus far is Bob Ambrogi’s just-the-facts assessment (here) and some hyperventilating tweets. Someone should take a … [Read more...]

Certification in Contract Drafting?

I'd like to revisit a notion that I alluded to in this brief 2010 post on AdamsDrafting: offering certification in contract drafting. Here's how it would work: Contracts professionals could get a certificate of proficiency in drafting and review of contract language by (1) attending one of my "Drafting Clearer Contracts" seminars or watching my "Drafting Clearer Contracts" webcasts and (2) taking … [Read more...]

The New Engineering Contract and Using the Present Tense to State Obligations

I find it particularly interesting when an institution adopts a novel approach to stating obligations. Who can forget the Construction Specifications Institute's recommendation, stated in its Project Delivery Practice Guide (formerly Project Resource Manual), that in architectural specifications you use the imperative mood, not the indicative mood, to express obligations. (That's something I … [Read more...]

Reviving a Contract After Its Term Has Ended

Last week I received the following inquiry from reader Vance Koven: I am moved to put this issue to you, as it is in some ways related to your comments in MSCD and elsewhere on back-dating contracts, which I agree is a no-no, especially for public companies, or making contracts "retroactively effective" in similar ways. I have come across a number of instances in which companies have contracts … [Read more...]

Docracy's Contract-Drafting Contest—Starting Sunday, April 15

In conjunction with the Brooklyn Law Incubator & Policy Clinic's "Legal Hackathon," today Docracy is launching a "hacking contracts" contest. To enter, use Docracy to revise one of four contracts (described as easy, medium, or hard). You'll have two weeks to submit entries. The winner gets a Kindle Fire. And no, you don't have to go to Brooklyn to enter! For more information, go here. Docracy … [Read more...]