Drafters can learn three things from courts screwing up analysis of ambiguity. First, you learn what ambiguous text looks like. Second, you learn that fights over ambiguous contract language are messy and expensive. And third, you learn that too many courts are incapable of analyzing ambiguous contract language in a way that makes sense; see this 2020 blog post for … Read More
The latest issue of World Commerce & Contracting’s Contracting Excellence Journal contains my article How Contract Managers Can Gain More Control Over Contracts (here). How do contract managers gain more control? By becoming informed consumers of contract language. And they should also consider using technology to help with review of draft contracts. (Yes, I have a horse in each of … Read More
Check out my latest video for LegalSifter, Ken’s Hot Take on Notices Provisions—all 8 minutes and 35 seconds of it. It’s available here. You can also get my latest and greatest notices provision and a list of related resources. Why notices provisions? Because I’ve been noodling with my notices provision over the past couple of years. Because I’ve revisited notices … Read More
The other day, Alex Hamilton dropped this on Twitter: Using "shall" in contracts, as suggested by @AdamsDrafting, has become a shibboleth. There are those who want to be modern, and those who've done their homework and are actually being modern. — Alex Hamilton (@AlexHamiltonRad) March 10, 2021 It’s been years since I’ve written anything about use of shall in contracts. … Read More
Today I noticed this post on LinkedIn, by Marty Finestone. Among other activities, he’s a legal designer. (Hi, Marty.) Because what I have to say would exceed LinkedIn’s character limit for comments, I permit myself a low-key comment by means of this post. Marty’s post features a photo with the slogan “Contracts shouldn’t be designed for lawyers.” I suggest it … Read More
Last week I asked this on Twitter: Is there a kind of term you really DON'T want to see in the other side's draft contract? Something that sets the alarm bells ringing? pic.twitter.com/8ICeW8OAQ4 — Ken Adams (@AdamsDrafting) March 11, 2021 And I posed the same question in a post on the LinkedIn group for A Manual of Style for Contract … Read More
Yesterday I saw a post on LinkedIn that mentioned Sullivan v. Abraham, a 2016 opinion of the Texas Supreme Court (PDF here). The LinkedIn post mentions that the opinion involved a serial comma, so of course I had to check it out. Unfortunately, this opinion offers another example of a court that’s inept at textual interpretation. As such, it’s worth … Read More
Last week I started three series of my online course Drafting Clearer Contracts: Masterclass for an Asian company with global operations. In the first session of Masterclass we discuss the front and back of the contract, just to get everyone used to comparing dysfunctional traditional contract language and the clearer alternative. I flashed on the screen a slide containing one … Read More
Last week I oversaw session 8—the final session—of the series of Drafting Clearer Contracts: Masterclass intended for the UK and Ireland. A couple of days later most of the group then gathered for a celebratory Zoom session—a nice idea. That’s when I took the screenshot above. No More Series Limited by Country I don’t think I’ll do another “UK & … Read More
Remember the 2002 movie Minority Report? Here’s how Wikipedia describes the premise: In April 2054 Washington, DC’s prototype “PreCrime” police department prevents murders, via three clairvoyant humans (“Precogs”) attached to a computer, who have an innate ability to “previsualize” crimes of extreme emotion and violence, before the offending suspect even begins the fatal deed. Well, you can participate in an … Read More
