I noticed that another legacy-media holdover, Scientific American, has devoted an article (here) to that recent study on lawyer attitudes to contracts legalese. In this recent post, I explain how that study is misleading. But that’s not what this post is about. Instead, in passing I noticed this in the Scientific American article: Jeremy Telman, a law professor at the … Read More
The most prevalent defense of traditional contract language is that it has been “tested” by the courts. Heck, I even encountered an ardent proponent of the notion on my recent trip to Saudi Arabia. So I wasn’t surprised to encounter this comment on LinkedIn that endorses the notion. But I was intrigued that the comment was by the general counsel … Read More
Today, thanks to a tweet by @360venturelaw, I stumbled upon a blog post entitled “Famous Last Words: ‘The Shorter the Better.’” It’s by Mike Stanczyk, a corporate attorney based in Syracuse, New York. It’s a sensible post, but Mike wraps it up with the following point: In closing I will say that when possible I prefer and do use “plain English” agreements. However, its … Read More
The biggest conceptual obstacle to clearer contract language is the notion of “tested” contract language—the idea that if a court offers its interpretation of confusing contract language, we’re forevermore committed to using that confusing contract language to convey that meaning. But recently I’ve heard people discussing a related concept—whether a provision is “market”. A provision is “market” if it’s so … Read More
For lawyers unwilling or unable to overhaul their traditional contract language, the excuse of choice is that traditional language has been “tested”—if you meddle with it, you’re exposing yourself to all sorts of risk. I discussed in this 2006 post how the notion of “tested” contract language is nonsense, and I revisited the issue in this 2012 post, as well … Read More
In the past ten days, I have twice had people mention to me, in the course of conversation, the notion of “tested” contract language. The idea is that while contract prose could certainly be improved, changing it would be risky—traditional contract language has been litigated, or “tested,” and so has a clearly established meaning (is “settled”). This argument has long … Read More
I noticed the most recent post by Chris Simkins on his Improving Contracts blog. Entitled L2L Contracts: Thinking beyond B2C and B2B, it explores the implications of, well, L2L contracts. What are L2L contracts, you ask? Here’s what Chris says: When I use L2L, I don’t mean a contract between two lawyers, or two law firms. I’m using it to … Read More
Today I received a tip from reader Brad Axelrod. He told me about the recent opinion of the Delaware Court of Chancery in Intrepid Investments (here). This case involves a fight over interpretation of a provision in which the parties agreed to exclusive jurisdiction of Delaware courts “[a]s to any dispute, claim, or litigation arising out of or relating in … Read More
In this March 2022 post, I examined an article by Eric Martinez, Frank Mollica, and Edward Gibson about their study showing that contracts are poorly written. I said that this article tells us nothing we don’t already know. The same authors are now back with another article, this one entitled Even Lawyers Do Not Like Legalese (here), published in the … Read More
These days I don’t write much about legaltech for contracts. There’s way too much of it. And I don’t do deals, so I’m not in much of a position to put such products through their paces. But I’m making an exception with this Q&A with Steven Gullion, of CrossCheck. CrossCheck looks for technical glitches that can afflict use of defined … Read More
