Instead, I’ve moved my online base to www.koncision.com, the home of my new venture, Koncision Contract Automation. Part of that site is my new blog, The Koncise Drafter.

I go into greater detail in the inaugural post on the new blog. I won’t get maudlin, as I hope you’ll join me at The Koncise Drafter. See you there!

For one thing, anyone drafting a given contract should be concerned with not just reasonable readers, but also one particular group of potentially unreasonable readers, namely those associated with the other side in the transaction. If a contract party is dissatisfied with how a given deal has worked out and either the stakes are high enough or their feelings have been hurt somehow, they may react unreasonably. In particular, they may be willing to argue that a word is ambiguous, even though your average reader would be inclined to disagree.

So you should do your best to preclude the possibility that the other side might make a halfway plausible argument regarding the meaning of a given word—winning a dispute is a distant second to avoiding the dispute in the first place. That requires some imagination, in that you have to put yourself in the other guy’s shoes. But note that I said “halfway plausible”—you can’t be expected to take preemptive measures against arguments that are outright loopy.

Another shortcoming to having a narrow approach to avoiding lexical ambiguity is that even if reasonable readers wouldn’t regard a given word as ambiguous, the other side might come to feel that it’s the wrong word—that it doesn’t reflect the deal, or at least what the deal should have been. If that’s the case, they may be inclined to put up a fight and claim, however implausibly, that the word is ambiguous.

I thought of this in connection with a recent opinion of the Ninth Circuit Court of Appeals. (This case involved legislation, but for my purposes it applies equally to contracts.) The court found that the defendant hadn’t violated a federal environmental statute when he left bottles of water for illegal immigrants in an Arizona wildlife preserve. The court found that bottles of water didn’t meet the definition of waste under the statute, which prohibits the dumping of garbage in an area designated as a refuge for endangered species. (Click here for the WSJ Law Blog’s account, which contains a link to the opinion.)

I think it’s inconceivable that the bottles of water could be considered waste. But I also suspect that the drafters would have done well to prohibit not only dumping garbage but also depositing anything else, no matter what the intent. In prosecuting this defendant, the authorities may have been motivated by what the statute should have said as much as by what it actually says. The fact that a dissenting judge was willing to accept this argument shows that it wasn’t entirely futile.

So when it comes to word choice, making an extra effort to avoid ambiguity isn’t quite enough. You’d also want to make sure that the word fits, taking into account whatever contingencies you can think of, with a bit of imagination.

Of course, these days you have to continually assess the merits of doing live CLE sessions. But I think that the seminars offer something that you can’t get from the webcast version.

As for the series of webcasts, they offer convenience and a level of detail that goes beyond what I do in the live version. It all depends on what you’re looking for.

How do you feel about using “books and records” as in “Investor may inspect the Company’s books and records”? I think one or the other of the words can be deleted. It would be better to delete “books,” since “records” is broader. ”Records” includes physical and electronic records, whereas “books” sounds like hard copy materials. I think “books” is a term of art that refers to financial books, but I still think referring to “records” alone would pick up such financial books.

Essentially, I agree with Macy. Here’s why:

Let’s consider first the meaning of books. It could mean corporate books, which Black’s Law Dictionary defines as “Written records of a corporation’s activities and business transactions.” But that doesn’t pick up the financial aspect that Macy mentioned. In that regard, a better bet would be books of account, which Black’s considers to be a synonym of shop books, which it defines as “Records of original entry maintained in the usual course of business by a shopkeeper, trader, or other businessperson.”

So books is ambiguous, in that it has a broader meaning and a narrower, bookkeeping-related meaning.

Now let’s consider records. Black’s doesn’t offer a definition of records—it’s too general a word. But for our purposes, all that matters is that both definitions that Black’s offers for books lead with the word records. So whatever meaning you might ascribe to the word books, books constitute records. It follows that in the phrase books and records, the word books is redundant.

This doesn’t come as a surprise. In “material contracts” filed on the U.S. Securities and Exchange Commission’s EDGAR system, the phrase books and records occurs more than four times as often as the phrase records and books. When one way of ordering the words in a couplet predominates over the other way, that suggests that the phrase is used as much for purposes of incantation as for whatever meaning the individual words might convey.

If you want to convey just the bookkeeping-related meaning, I think you can do better than books. How about using instead a phrase beginning records relating to?

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 cross-references will be hyperlinked. That would add a measure of convenience to on-screen reading.

On the other hand, the text sure won’t be light reading, and it will roll in at about 80 to 90 pages. I’m willing to credit that as a general matter reading something lengthy on-screen is more tiring and slower than reading the same thing in paper form and is likely to result in a more superficial understanding.

But there’s on-screen reading and on-screen reading. Reading something on an iPad is presumably more like reading it on paper than is sitting at a desk gazing at a monitor a foot away from your face.

The literature on reading on-screen versus reading paper is vast. Click here for just one item, a recent article in PCWorld.

So if you were to purchase “The Structure of M&A Contracts,” would you read it on-screen or would you read a printout? Take the handy poll below. How people are likely to read it may influence design of the PDF, although some of the design suggestions offered by D.C. Toedt are probably a bit too assertive for our needs. And if you have any suggestions, I’d be pleased to hear them.

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 did mean.”

And here’s David Mellinkoff:

The allure of brevity and the phony appearance of mathematical precision convince the lazy, the ignorant, and the harried that at one stroke and/or covers all the possibilities of both conjunctions.

But I can’t get too worked up about and/or. After all, it does have a specific meaning—X and/or Y means X or Y or both. But X or Y or both is clearer than X and/or Y, so in drafting I’d use and/or only in those very rare circumstances where, due to the nature of A and B, and/or represents the best of a bad job.

But drafters often use and/or when the meaning A or B or both doesn’t work, hence the tirades against it.

Consider an unpublished Minnesota Court of Appeals decision issued yesterday in the case of Carley Foundry, Inc. v. CBIZ BVKT, LLC, No. 62-CV-08-9791 (Minn. Ct. App., Apr. 6, 2010) [pdf]. (My thanks to the vigilant readers who brought it to my attention.) A side issue in the litigation was release language that covered claims Carley “may have in the future, and/or which were, should have or could have been brought in connection with the Litigation.” The court had the following to say:

The phrase “and/or” is semantically and logically contradictory. A thing or situation cannot be simultaneously conjunctive and disjunctive. Laypersons often use the phrase and, surprisingly, lawyers resort to it from time to time. It is an indolent way to express a series of items that might exist in the conjunctive, but might also exist in the disjunctive. It is a totally avoidable problem if the drafter would simply define the “and” and the “or” in the context of the subject matter. Or the drafter could express a series of items as, “A, B, C, and D together, or any combination together, or any one of them alone.” If used to refer to a material topic, as here, the expression “and/or” creates an instant ambiguity. Furthermore, as one legal-writing authority noted, a bad-faith reader of a document can pick whichever one suits him—the “and” or the “or.” Bryan A. Garner, Looking for Words to Kill? Start with These, Student Law., Sept. 2006, at 12-14. At the very least, this sloppy expression can lead to disputes; at the worst to expensive litigation.

Here’s my take on this sort of problem. I don’t think the culprit is and/or. Instead, the problem is the fiendish subtleties involving use of and and or. In using or in a given context, a drafter might have failed to spot an ambiguity created by that or. Or the drafter might have simply used or when and would have been the better choice. Similar issues dog use of and.

To my mind, rather than representing some isolated and particularly heinous solecism, misuse of and/or is just another manifestation of the confusion that can arise out of and and or.

Consistent with that, notice how the language at issue in the Minnesota case wasn’t susceptible to a simple X or Y or both fix. It needed more help than that.

(If you want more on and and or, chapter 10 of MSCD contains, I believe, the most comprehensive discussion of the topic you’ll find anywhere.)

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 right.

The phrase sole and exclusive license certainly occurs in granting language. Here’s a random example plucked from EDGAR:

LGLS hereby grants to GS and GS hereby accepts from LGLS a sole and exclusive license under the LGLS Patents, LGLS Know-How, GLAXO Patents, GLAXO Know-how to use, import, package, sell and offer for sale Products within the Field in the Territory, as well as the exclusive right to use the Trademarks in the Territory in conjunction with the use or sale of Products.

But sole and exclusive is also used with with right, owner, remedy, and doubtless other words. And a couple of IP books I looked at didn’t contain a discussion of sole versus exclusive.

So I’m uncertain about the analysis offered in the Lawyers Weekly article; I think that rather than containing contradiction and raising an issue over which word works best, sole and exclusive is just another example of plain old redundancy, the simplest solution for which is to lop off sole.

What do you licensing types think?

In MSCD 8.48–51 I explain why double materiality is a figment of practitioner imagination. But it’s sufficiently entrenched that simple appeals to reason wouldn’t be sufficient to dispell it. (The ABA Section of Business Law’s 2009 Private Target Deal Points Study noted that of the contracts in the sample study that contained a bringdown condition, most sought to address double materiality in the bringdown condition.)

So here’s a provision I just invented that would aim to convince a buyer that they shouldn’t go into contortions to fend off double materiality:

The parties acknowledge that the informal theoretical concept referred to as “double materiality” does not apply to this agreement, regardless of whether it is recognized for purposes of other agreements, so the level of representation inaccuracy permitted by the materiality qualification in section x.x [the bringdown condition] will not be expanded by the presence of a materiality qualification in a given representation.

I’m under no illusions that anyone will actually use this—it’s just a trial balloon.

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 the WSJ Law Blog’s account.)

A reader sent me a link to this item in the Y Combinator news feed. It starts by asking the very question I was asking myself—”How is it even remotely possible that sophisticated parties selling something so major as the UNIX-related rights can’t agree whether the copyrights were transferred in the deal?” It then considers the contract roots of the dispute.

I’m not inclined to search through the rubble myself. But it would seem that someone experienced a failure of imagination by not following through the implications of how the assets were divided up. In drafting any contract, you have to constantly ask yourself, “What if … ?”

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 you’d like to find out more, get in touch.