Blog

The Lilly Ledbetter Fair Pay Act and Syntactic Ambiguity—A Cautionary Tale

Reader Kazu brought to my attention the following language from the recently enacted Lilly Ledbetter Fair Pay Act (emphasis added): For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation … Read More

What Businesspeople Think of Contract Language

I’m at Tremblant, the Quebec ski resort, at the invitation of the Canadian Healthcare Licensing Association. I just finished giving a short version of my “Language and Layout” seminar to sixty business-development people from Canadian pharmaceuticals companies. The participants included some lawyers, but for the most part this was a group of businesspeople. And although about a third of those … Read More

Contracts as a Relationship-Building Tool

Some people regard the contract process as an adversarial one. I encountered a great example of that recently: someone I’ve been corresponding with used the word “opponent” in referring to a lawyer representing the other side in a deal. When the other side is the enemy, you’re free to indulge in “creative ambiguity” and other shenanigans. That’s a long way … Read More

Using “Any” to Tame “And”

Here’s a case of modest interest to you fans of and and or: County of Du Page v. Ill. Labor Rels. Bd., No. 105395, 2008 Ill. LEXIS 1835 (Ill. Dec. 18, 2008). It involves statutory construction, but the principles at issue apply equally to contracts. The Illinois Labor Relations Board certified a chapter of the Metropolitan Alliance of Police (the … Read More

Lexical Ambiguity: A New Case for Fans of Frigaliment

While at LegalTech on Tuesday, I picked up a free copy of the New York Law Journal, just for the sheer novelty of reading it in newsprint. One item that caught my eye was an account of WebMD LLC v. RDA International Inc., No. 102830/08, 2009 WL 175036 (N.Y. Sup. Ct. Jan. 6, 2009). (Click here to go to the … Read More

Revising Your Contracts to Reflect Changed Circumstances

Reader Melvin told me about this item on Lexology by Jeffrey P. Drummond of Jackson Walker LLP. It’s about how the Third Circuit Court of Appeals reversed the lower court in a qui tam action brought by a doctor against a hospital under the False Claims Act. At issue was the relationship between the hospital and an anesthesiology group that … Read More

When the Parties Know That an Obligation Can’t Be Performed

Included in the extensive comments to my recent post “Language Requiring Deletion of Electronic Files” is a comment by Michael Fleming to the effect that it’s appropriate to impose on a party receiving confidential information an obligation to destroy all electronic versions of that information, regardless of whether that’s in fact possible to do. Michael suggested that whether the party … Read More

New 2009 Seminar Dates (Including Some Testimonials)

I’ll soon be resuming my itinerant ways. In particular, my first public seminar of 2009 is on February 24, in Houston. And 2009 just got busier, as I’ve added some new “Contract Drafting—Language and Layout” public seminar dates, namely U.S. dates for the second half of 2009 and new Toronto and Vancouver dates. Click here for the details. Remember that … Read More

Adopting a House Style for Contract Drafting

To accomplish any given drafting goal, one usage will be more efficient than the others. Once you accept that notion, it follows that it would make sense for drafters to join other writers in using a manual of style. That’s why I wrote A Manual of Style for Contract Drafting. Use of a manual of style in a given population … Read More

Drafting by Committee? Not So Good

Today Rees Morrision posted this item on his blog. It makes the point that groups are good for sharing information but not so good for making decisions. It also quotes an academic as saying that “Groups are not helpful in getting people to make better decisions, but they’re helpful in getting people to feel more confident about the decisions they’ve … Read More