I’ve switched my blogging home from this blog to The Koncise Drafter. So if you subscribe to the RSS feed for this blog, you might want to unsubscribe and go here to subscribe to the RSS feed for The Koncise Drafter. Same pointy-headed contract stuff, different URL!
Dear readers, this is the last post on the AdamsDrafting blog. Although this site, and this blog, will remain up, I won’t be updating them. 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 [...]
After deciding, about ten years ago, that I wanted to be The Contract-Drafting Guy®, one of the first things I did was contact every law-firm “knowledge management” person I could track down, so that I could discuss with them how I might help their firm put its contract-drafting process on a rational footing. The response? [...]
A feature of my wary relationship with Twitter: When I’m on the road and should, in theory, be regaling the world with salvos of bracing tweets, it’s the last thing I’m inclined to do. I’d rather experience things a fully as I can rather than devote part of my attention to providing running commentary. (For [...]
My thanks to those who commented on my draft of the copyright notice for my book The Structure of M&A Contracts. Here’s my revised version: © 2010 Kenneth A. Adams You may copy and distribute without charge this publication’s table of contents, on condition that you include the above copyright notice in any copies. You [...]
The annual meeting of the Association of Corporate Counsel will soon be upon us, and I’m gearing up for my part in the panel discussion “Contract Drafting to Avoid Disputes and Inefficiency.” It’s on Tuesday, October 26, at 2:30 p.m. Because it has proved popular, ACC members will also be able to hear it by live [...]
Earlier this week I saw the following notice on the website of The Australian (emphasis added): GLOBAL firm Jones Day has poached Tony Wassaf from Allens Arthur Robinson and appointed him partner in the firm’s Sydney office. The energy and resources specialist has more than 25 years experience in the sector and said he was keen [...]
My book The Structure of M&A Contracts will be published in two or three weeks. I’m currently torturing West with comments on the page proofs. The final bit of text that I have to prepare is the copyright notice. Here’s what it would look like if I were to base it on West’s standard copyright [...]
I have yet to write a review of a book on contract drafting, and I don’t expect I ever will. Any such review would inevitably be less than a full-throated endorsement. If the author is a friend, they would be disappointed; if the author isn’t a friend, they would likely be more than disappointed; and readers [...]
Longtime reader Jim Brashear, now general counsel of Zix Corporation, shared with me a series of exchanges he engaged in regarding locking, and unlocking, Word draft of contracts; I’ve copied them below. This isn’t an issue I have any experience with, as I no longer do deals, but the idea of locking Word documents strikes me [...]
Recently in my contract-drafting course at Penn Law I drilled my students in the categories of contract language. (I suggest that understanding categories of contract language is essential to controlled drafting. The topic is analyzed exhaustively in MSCD chapter 2, and you can get a sense of it by looking at posts on this blog [...]
That one-man legal-news phenom Steven Sholk pointed me to this story on Law360.com. (Subscription required, or free trial.) It describes how in a petition filed on September 25, American Home Assurance Co. asked the U.S. Supreme Court to define the scope of the phrase arising out of in arbitration clauses. This represents another installment in [...]
Contract language differs from narrative, expository, and persuasive prose. When the writer needs to tell a story, explain, or convince, one block of text picks up where the previous one left off. The reader is taken on a trip—jumping on board with the first sentence, hopping off at the end. By contrast, a contract is [...]
Lexical ambiguity arises when the context is insufficient to allow readers to determine the sense of a word that has more than one meaning. You’d think that to avoid lexical ambiguity, all that a drafter has to do is ensure that reasonable readers couldn’t find alternative meanings in a given word. But for two reasons, [...]
In a contract he drafted for an assignment, one of my Penn Law students used the word aggressively. I immediately turned to EDGAR, where I found 106 “material contracts” filed in the past year that contain aggressive or aggressively. Here’s an example (emphasis added): Distributor shall aggressively distribute and encourage the utilization of merchandising aids [...]
In this post on his Contract Analysis and Contract Standards blog, Kingsley Martin notes that empirical analysis of contracts allows you to determine what they actually say as opposed to what you think they say. That makes sense, but it wasn’t what caught my eye. Instead, I noted this table, which is from Stewart J. [...]
In partnership with West LegalEdcenter, I do an all-day version of my “Drafting Clearer Contracts” seminar in cities throughout the U.S. Click here for the 2010 schedule. (I do seminars in Canada with a different partner, Osgoode Professional Development.) The roster of U.S. cities changes from year to year, with a city or two being [...]
I’m back teaching at Penn Law, working through the chaos that inevitably seems to accompany the first couple of weeks. A sign that we’re getting more focused is that two students each reported an MSCD typo. (Cue author gnashing teeth.) And more to the point, one student asked the first blogworthy question of the semester. We [...]
This American Lawyer article about the lawyers of the “Forbes 400″ reminded me that real-estate developer Sam Zell once said, regarding his first days as a lawyer, “I spent my first week drafting a contract. It was deadly.” (See this WSJ Law Blog item for complete details.) So, is contract drafting deadly? For junior lawyers, [...]
Readers of this blog will be aware that I’m partial to the notion of lobbing questions to a broad and interested readership and seeing what I get by way of a response. So it will come as no surprise that I think LinkedIn groups can be useful. Thus far my involvement in LinkedIn groups has [...]
I’ve previously (in this blog post and this blog post from November 2009) ruminated over the relative dearth of BigLaw associates at my public seminars in the U.S. (Canada is a different matter entirely.) So when some do materialize, it’s a little like a birdwatcher spotting a variegated flycatcher. Last week I held one of [...]
Via Above the Law, I learned of this article in the Los Angeles Times. Frank McCourt, owner of the L.A. Dodgers baseball team, is engaged in a scorched-earth divorce battle, and this article details how Larry Silverstein, a lawyer for McCourt, apparently took it upon himself to change one word in a signed contract between [...]
Reader Macy Shubak recently asked me the following question: 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, [...]
A crucial part of drafting any contract is making sure that you’ve worked through the “what ifs”—that you’ve addressed all conceivable scenarios and that nothing has fallen through the cracks. When you’re dealing with a complex transaction, accomplishing that requires specialized expertise and sufficient time and patience to wrestle with lengthy and and intricate documentation. [...]
When it comes to contract drafting, change is tough. For one thing, it’s precedent-driven. And it’s a team sport—instead of being able to draft in splendid isolation, you may well have to take into account the preferences of others on your side of the transaction, not to mention the preferences of those on the other [...]
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 [...]
