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 American Home’s long-running contract dispute … Read More
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 made up of a set … Read More
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, that’s not enough. For one … Read More
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 and promotional materials provided at … Read More
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. Schwab & Randall S. Thomas, … Read More
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 added or dropped. We’re currently … Read More
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 had been discussing integrated versus … Read More
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, it’s unlikely to be a … Read More
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 been limited. I’m a member … Read More
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 my West “Drafting Clearer Contracts” … Read More
