Add rightfully and rightful to the list of words that are best omitted from any contract. The word rightfully occurs in 661 contracts filed as “material contracts” on the SEC’s EDGAR system, which makes it a relatively commonplace feature of the contract landscape. Here are some examples: Confidential Information shall not include information that: … the Licensee rightfully obtains from a … Read More
If you want to be depressed, I recommend you consult this article on Lexology (free registration required) by Wragge & Co., the U.K.-headquartered international law firm. It’s entitled—long-winded-title alert—Before you take the plunge. Back to basics on contracts – part 4. Best, reasonable and all reasonable endeavours – how far are you agreeing to go and what are you committed to? (Thanks … Read More
National Magazine, the magazine of the Canadian Bar Association, contains Jordan Furlong‘s new article Here Come the Robo-Lawyers. I’ve long enjoyed reading Jordan’s stuff—he’s an astute observer of the legal scene. So I was pleased that Koncision was one of three technologies he featured in the article. Another technology mentioned is Neota Logic, which I wasn’t familiar with. Hmm—could it … Read More
Sports types invoke “100%” unusually often. (“Well, Dick, we’ve got to give it 100%!”) Mind you, if things are serious, 100% might not be enough! For some reason, 110% became an accepted figure, but even that’s sometimes eclipsed, as noted in this 2005 article from ESPN.com. Well, some contract drafters are also fond of “100%”, in that they use it … Read More
I noticed that the Rocket Lawyer confidentiality agreement that I wrote about in this post yesterday excludes liability for “direct, indirect, special, or consequential damages.” Language excluding damages is a nightmare, because hardly anyone understands what that jargon means. It’s something I wrote about in this February 2010 post and this March 2010 blog post, both on AdamsDrafting. Here’s the glossary … Read More
If a contract says that you may do something, no purpose is served by saying you may exercise that discretion “freely”—nothing suggests that the discretion granted would otherwise be somehow restricted. Nevertheless, may freely or its passive counterpart, may be freely, occur in 292 “material contracts” filed on the SEC’s EDGAR system in the past year. That doesn’t equal an … Read More
I’ve seen a lot of chatter about automated contract creation offered by Rocket Lawyer and LegalZoom. For the life of me, I don’t know why. Take Rocket Lawyer—please! Report Card I took advantage of Rocket Lawyer’s week-long free-trial period to create a confidentiality agreement. I chose their confidentiality agreement because I’m intimately familiar with the issues, thanks to my work … Read More
In this comment to a recent post on this blog, Mark Anderson—he of IP Draughts—makes the following recommendation: Ken, in my view best practice is to put definitions in two columns [using a two-column table], with the defined word in the first column and the definition in the second column. This makes it easier to find and read the definition. … Read More
The 2011 annual meeting of the Association of Corporate Counsel is taking place in Denver on October 23–26. I spoke at the previous two annual meetings, and I would have liked to have attended this one. But it’s parents’ weekend at my daughter’s new school, and on October 25 I’m giving a “Drafting Clearer Contracts” seminar in Washington, D.C. So no ACC … Read More
Joan Heminway, professor at the University of Tennessee College of Law, sent the following inquiry to me and one of her colleagues: In commenting on student work, I have noticed over the years a decrease in student use of quotation marks around defined terms, especially when defined in inside parentheses. I note that while investment bankers, e.g., do not typically … Read More
