Ken Adams

My Materials on Contract Boilerplate

I thought it high time that I collect in one place my writings (and a couple of videos) on boilerplate. (By “boilerplate,” I mean the stuff relating to administration and dispute resolution that you see toward the back of most contracts.) The main headings are in alphabetical order; the items under each heading are in reverse chronological order. Boilerplate is … Read More

Counterparts: An Example of Categories-of-Contract-Language Dysfunction

Counterparts provisions are a mess. For one thing, it’s not clear what counterparts are. I and others have been under the impression that it refers to a copy of a contract signed by fewer than all parties, but Black’s Law Dictionary says counterpart means “duplicate.” See this Twitter thread for a bit about that. And whatever counterparts are, the issue … Read More

Why I Don’t Use a Table Format for the Definition Section

This is what my definition sections look like: But you could instead opt to present the definition section using a table format: Using a table format is, as far as I can tell, particularly popular in England and other Commonwealth jurisdictions. The two primary characteristics of using a table format are (1) a break between the defined term and the … Read More

Back to “Efforts,” Part 3: Other Outlets for Delexicalization Deniers

In my 2019 article, I explain that in the phrase best efforts, the word best has been “delexicalized”—instead of expressing its dictionary definition of “exceeding all others,” in this context it’s used as a rhetorical flourish. Other phrases that feature the delexicalized best are in the best interest(s) of Acme and to the best of Acme’s knowledge (and variants). I’ve suspected … Read More

Back to “Efforts,” Part 2: Relexicalizing “Best”

Warning: this post is for hard-core efforts fans only. As part of my frenzy of rooting around on EDGAR yesterday looking for efforts anomalies, I saw this: The phrase best efforts possible is an oddity. It and the variant best possible efforts occur only a handful of times on EDGAR, mostly in contracts drafted in countries where English isn’t the … Read More

Back to “Efforts,” Part 1: Dreaming Up Other Hierarchies

Let’s start with what we know: The notion of a hierarchy of efforts standards is nonsense. It’s inconsistent with English usage, semantics, and how contracts work. For more, see my 2019 law review article. (According to the Delaware Chancery Court, it’s “The most thorough analytical treatment of efforts clauses.”) But some drafters are so taken by the notion of a … Read More

The Weirdest Thing You’ll See Today: “Herein So Called”

Yesterday I saw this cry for help on Twitter from @thepixellawyer: @AdamsDrafting ever seen this? It's new to me. #strange — Chris Brown (@thepixellawyer) September 28, 2021 So I went on EDGAR. Westlaw offered me 1,196 contracts containing the phrase, so it’s a thing. On the other hand, it’s not commonplace—I’ve been hanging out in this neighborhood for 20 … Read More

I Share Two Characteristics with Steve Earle and Colin Hay. Really!

On 30 August, Joanne and I should have been in Nashville to see for the first time Steve Earle and his band in concert, but COVID put the kibosh on that. Instead, we saw Colin Hay at the City Winery in New York City. This year I’ve found myself listening more closely than previously to both Earle and Hay. And … Read More

Working with Me at LegalSifter: What’s in It for You?

You might have heard that LegalSifter is looking to hire someone to work with me in creating our algorithms (“Sifters”) and writing the advice we give users. For more information, go to Indeed or LinkedIn. On Saturday I published this stream-of-consciousness post on my blog about the position. Now I’d like to address more directly why this position might be … Read More

Random Drafter Shoots Self in Foot Randomly

From this post on D.C. Toedt’s blog I learned about Miller v. Honkamp Krueger Fin. Servs., Inc., No. 20-3061, 2021 WL 3729047 (8th Cir. Aug. 24, 2021) (PDF here). It’s of interest as an instance of a drafter making an odd mistake. In 2006 Miller entered into an employment agreement with HKFS. Among other things, it said that “for a … Read More