In the article on arbitration versus litigation that I mentioned in this post, a couple of the litigators interviewed noted wistfully that they’re almost never consulted about what dispute-resolution provisions to include in a given contract. That raises a general question: Do you ever consult litigators when drafting? Do you think it adds value to [...]
If you’re a fan of the litigation-versus-arbitration debate, you’ll find of interest this article on law.com. It’s from the Legal Intelligencer, and it’s by Gina Passarella. The title says it all: “Litigators Losing Love of Arbitration Argue for Trials.” But what caught my eye was the suggestions made by those interviewed for the article regarding how [...]
In recent days there’s been plenty of chatter about this post on Balkinization by Jason Mazzone, a professor at Brooklyn Law School. Here’s the meat of what he proposes: As far as I can tell, no law school in the United States co-exists in a university along with an academic law department. If a university has [...]
The word mandatory can come in handy in contracts, for example in the defined term Mandatory Conversion, as distinguished from Voluntary Conversion. But it can also be surplussage, in that if something is stated as an obligation, then necessarily it’s mandatory. That’s why I think mandatory can be omitted from the following examples: The parties [...]
You’ve presumably seen this blog post announcing Koncision Contract Automation. I could have waited until Koncision CA was ready for launch before announcing, but I have two reasons for announcing now. One, I want to have the benefit of input from potential users. And two, I want to recruit two editorial boards; that’s what I [...]
In the coming months we’ll be establishing the framework and policies of Koncision Contract Automation. The document-assembly engine that will power it, ContractExpress, operates as you’d expect: users answer a questionnaire, and based on the answers provided the system then compiles and adjusts the preloaded contract language. But beyond that, there’s plenty of room for [...]
I’m pleased to announce that I’m partnering with Business Integrity, developer of ContractExpress document-assembly software, to develop Koncision Contract Automation, an online subscription-based service that will make available to lawyers document-assembly templates for business contracts. We’ll be launching our first product, a line of confidentiality agreement templates, in the first quarter of 2011. This development [...]
There’s been quite a bit of blogosphere chatter recently about lawyers and plagiarism. The most recent salvo is this post by Peter Friedman, who teaches legal analysis and writing at Case Western Reserve University School of Law. In my cloistered way, I pay real attention only when the discussion touches on contract drafting. And here’s [...]
I recently received the following inquiry from longtime reader John “Fitz” Fitzpatrick: Pardon me if I missed a blog discussion on e-signature (have you had one?), but recently a bunch of companies have requested that we sign our contracts with them using e-signature through a company called EchoSign. Nice idea in principle, but I have [...]
I noted with interest this article on the website of the Association for Corporate Counsel. It’s entitled “Top Ten Innovations to Improve Enterprise-Wide Contract Management,” and it’s by Nancy Jessen and Bret Baccus of Huron Consulting Group. (Nancy was kind enough to be on the panel for the seventh in my series of “Drafting Clearer Contracts” [...]
Drafting mistakes are mainly of interest to me for the lessons I can deduce about how not to draft; I don’t particularly care how the mess is cleaned up. But sometimes I’ll pause to examine the wreckage. In that spirit, I recently read this article by Alison Frankel for the American Lawyer. It describes as follows [...]
Last week the New York Times ran two stories on legal outsourcing. The first (click here), by Heather Timmons, describes the growth of legal outsourcing in India. The second (click here) is a “City Room” blog item by John Eligon; in it, two BigLaw partners offer differing takes on outsourcing. I’ve written on this topic previously, but [...]
I happened upon this blog post by Susan Wilson of Alston+Bird regarding a recent Delaware Chancery Court opinion, Cambridge North Point LLC v. Boston and Maine Corporation. B&M argued that the court should hold the contract at issue unenforceable because B&M had signed the contact “without noticing” a new provision added to a draft by Cambridge. [...]
It’s commonplace for a contract to require a party to use efforts (reasonable efforts or some suboptimal variant) to accomplish something to the extent possible (using those words or words to that effect). The notion of to the extent possible is redundant, as it’s implicit in an efforts provision that the party under the obligation [...]
The ever-vigilant Steven Sholk told me about this post on Footnoted. It describes how in an exhibit to an employment agreement filed on the U.S. Securities and Exchange Commission’s EDGAR system, the company undertook that in addition to paying the executive’s moving expenses, “in consideration of other relocation expenses that Executive and his family will [...]
Some months ago a reader asked the following: At some point down the road, can you do a blog posting on Most Favored Nation clauses? My feeling is that within the last 2-3 decades, some professor in some business school somewhere wrote an article on how important these clauses are. Current CEOs, CFOs, and procurement leaders [...]
From Eoin O’Dell’s roundup of comma-related mischief on Cearta.ie I learned of a dispute that surfaced at a Chrysler bankruptcy hearing earlier in July. In June 2009, Fiat and the new Chrysler Group LLC agreed to honor all the rights consumers had against the “Old Chrysler” under state “lemon laws.” The agreement was contained in a [...]
Yesterday I read this AmLaw Daily article by Steven J. Harper, a retired Kirkland & Ellis partner. It laments that the emphasis on short-term metrics at law firms means that increasingly, mentoring is falling by the wayside. Others, including the WSJ Law Blog and Above the Law, have waded in. I don’t doubt that the [...]
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 [...]
“Rhetorical emphasis” is the term I use to refer to a drafter’s not simply saying something, but saying it in a way that shows that they really, really, really mean it. The extra verbiage doesn’t affect meaning, and it’s best omitted. Contracts contain no shortage of examples of rhetorical emphasis; you can find my previous [...]
In an opinion published yesterday, the Ninth Circuit reversed much of the December 2008 ruling that gave Mattel the rights to MGA’s Bratz doll products. (Click here for the Bloomberg story; click here for the opinion.) This dispute holds little interest for me, but I did sniff out a contract-drafting side to the story. An important [...]
I just had occasion to consider for the first time, while working on my M&A manuscript, some issues that arise when more than one party makes a set of representations. I’d be happy to hear what you think of the following analysis: When a set of representations is being made by more than one party, [...]
I just added the following to the manuscript of my forthcoming booklet “The Structure of M&A Contracts,” in the preface: But change is hampered by inertia. Deviating from standard language, no matter how defective, might spark debate, and debate creates delay and increases transaction costs. But inertia by itself isn’t a valid reason to reject [...]
I have one fix and one possible enhancement to report: The fix is that now, finally, clicking on one of the categories links on the right-hand side of the page will take you to a comprehensive listing. Previously, a glitch meant that some posts were omitted. And at the request of a reader, at the [...]
This item at The Volokh Conspiracy noted that the “serial comma” has been appearing less and less frequently in the New York Times. At Legal Blog Watch, Eric Lipman pointed out that a Volokh commenter had suggested that the serial comma is important for clarity in contracts. Here’s the entire comment, posted by “Mark”: I think [...]
Following on my recent post on document-comparison etiquette, longtime reader Jim Brashear sent me the following: I’d be interested in reading others’ thoughts and comments on document filename conventions and etiquette. For example, one distributes a set of draft documents with filenames (descriptive or otherwise), and one receives back from various counterparties their edits in [...]
On Wednesday, July 14, the Law Department Management Committee of the Association of Corporate Counsel will be holding their monthly teleconference, and the featured speaker for the half-hour “Legal Quick Hit” portion is yours truly. It will be in the form of a Q&A with the esteemed David Munn, general counsel and director of customer [...]
I sporadically write about contract instances of lexical ambiguity, which arises when context is insufficient to allow one to determine the sense of a word that has more than one meaning. (See MSCD 6.5 and these three blog posts.) Well, here’s another one for you fans of lexical ambiguity: in this item over at Legal [...]
I recently received the following message from a longtime reader: When you eventually revise MCSD to its third edition, could you consider adding an appendix that talks about redlining protocol? Here’s what routinely happens to me: I send the other side a draft marked using Microsoft Word’s “track changes” feature. Using that feature, they accept [...]
In a phone call with a law-firm M&A partner today, I was reminded that sometimes M&A contracts reflect a deferred closing even though the parties actually do a simultanous signing and closing. If the signing and closing are simultaneous, the contract would usually contain deal provisions, representations, indemnification provisions (unless the target is public), and boilerplate, [...]
A reader asked me what books I could recommend. More specifically, he asked as follows: Say I wanted one book that would give a good treatment of comparative foreign law (French, UK, Belgian, etc), with key discussion on contract remedies available, what would you go with? I haven’t yet had occasion to consult such a [...]
A reader recently asked as follows: If someone is signing a contract on behalf of more than one party, and that person serves each party in the same capacity, would it be OK to use just one signature block, as in the following example? ACME HOLDINGS, LLC ACME ACQUISITIONS, LLC ACME INVESTMENTS, LLC By: ______________________ [...]
What happens if a contract says that someone is personally liable for an obligation, but that person signs the contract not in their individual capacity, but as an officer of a limited liability company? In this newsletter article, Doug Batey of Stoel Rives considers a recent Washington Court of Appeals opinion that addressed exactly that [...]
I recently received the following inquiry: I was wondering if you could clarify a point for me and my boss. It has been my understanding that when defining terms in an agreement, it is standard to use the word “together” when referring to two entities only, and to use the word “collectively” when referring to three [...]
Over the years I’ve written about materiality a number of times. The discussion in MSCD represents my most recent take, but I’m revisiting the subject for purposes of my forthcoming booklet on the structure of M&A contracts. While finalizing the booklet—a task that has taken me away from blogging—I’ve found myself considering an issue that I haven’t [...]
I don’t exchange drafts with people on the other side of a transaction, so generally I don’t have to worry about metadata. But if unlike me you actually do deals, you should be attuned to the risks of metadata and how to stay out of trouble. So you might want to read a new article [...]
Under the auspices of my Canada partner Osgoode Professional Development, I’ve done public seminars not only in Toronto but also Vancouver, Calgary, and Ottawa. Next up is Halifax on September 22, with another in Toronto on November 3; for more information, click here. And the plan is to go to Montreal for the first time [...]
I just received the following broadside from a reader: You choose to use your blog to tout your own book and for self-validation. I certainly hope you are not deceiving yourself that your purpose is to foster discussion or refine your own body of knowledge. That’s fine, each to his own, I just wonder why [...]
Recently I’ve been pondering whether I should put together an online multiple-choice test that would allow users to assess their command of MSCD-compliant contract language. It would be a simple enough matter to come up with fifty to 100 questions; each would offer an explanation that cites the relevant discussion in MSCD. Users would pay a [...]
I’ve written previously about ContractExpress, the document-assembly software developed by my partner and sponsor, Business Integrity. (See this February 2010 blog post for my Q&A with Andy Wishart, CTO of Business Integrity.) If you’d like to see what someone else has to say about the “cloud” version of ContractExpress, check out this Law Technology News [...]
A reader asked me what I think about therefor. Here’s my equivocal answer: In MSCD 12.99 I note that here- and there- words such as herein and thereunder are dreary legalese. That’s why I use in this agreement instead of herein. But sometimes, a there- word allows you to avoid long-winded repetition. Looking more closely [...]
If I were at the helm of a well-funded trade group called “The Association of Contract-Drafting Professionals” (yeah, right) and we were rolling out an advertising campaign, here’s what I might use as a slogan: Contract language is specialized. Leave it to specialists. Here’s the idea behind it: Contract language is akin to software code—it’s [...]
If you want to do business in the marketplace of ideas, you have to be prepared to repeat yourself, and you should be willing to engage in good-natured debate. So here goes: I noticed that a recent newsletter issued by the Canadian law firm Fraser Milner Casgrain contains an article on that favorite topic, the [...]
I thought it worthwhile to scoop from the comments to my recent post on deal risk an exchange I had with Vickie Pynchon of the Settle It Now Negotiation Blog regarding the connection between drafting a contract and negotiating it. Here’s the relevant part of Vickie’s comment: I’ve been devising a negotiation class for transactional lawyers [...]
[Revised July 24, 2010 to (1) revise the meaning of Closing so that it means the same thing as Effective Time, (2) eliminate the defined term Effective Time, and (3) create the defined term Filing Date.] In this February 2010 blog post I said that the word closing is ambiguous: Does closing mean the moment [...]
I’m familiar with the ethics-in-drafting implications of including in a contract a provision that’s invalid. This topic is explored in Gregory M. Duhl‘s article “The Ethics of Contract Drafting,” which I mentioned in this February 2010 blog post. A provision can be invalid because it’s illegal. Gregory’s article gives as an example of an invalid [...]
I’ve written previously about signature-automation tools. (For one, see this April 2008 blog post.) Thanks to this post at Lawyerist.com, I see that Adobe has joined the fray, with its eSignatures beta. I haven’t yet checked it out; I’d be interested to know what you make of it and, in particular, how you think it [...]
I concluded my recent post on “good enough” in contract drafting by distinguishing the quality trade-offs inherent in the notion of “good enough” from the question of how risk-averse you want to be in drafting and negotiating deal terms. But those issues are related, in that both require you to determine when you reach the point of [...]
You sometimes see quotation marks used to offset attachment enumeration, as in these two examples from EDGAR: “Excluded Property” shall mean those items of personal property either owned by Executive or to which Executive has exclusive rights and listed on Schedule “1,” entitled “Excluded Property,” which is attached hereto and made a part hereof. The [...]
It’s not often that the topic of drafting corporate resolutions comes up in my day-to-day activities. That’s why I was pleased to receive from one of the participants in my recent Chicago seminar an email that included the following: During lunch I mentioned to you that I had already put into practice the recommendations published [...]
