Blog

Whistleblower Immunity: Supplementing in Accordance with the Defend Trade Secrets Act Contracts that Require Employees or Contractors to Keep Information Confidential

27 September 20163 September 2016 by Ken Adams

Because (@FlemingMF) posted on my blog way back in the early days, I’ve been in the habit of referring to him as “the ur-commenter.” But since I’m perhaps one of 227 people in this country familiar with use of ur– as a prefix, I’ve decided that “Commenter Zero” is a better moniker. Wear it with pride, Michael. In any event, for … Read More

Why I No Longer Use the Term “Contracts Professional”

1 September 20161 September 2016 by Ken Adams

I’ve been prone to using the phrase contracts professional as a way to refer collectively to (1) lawyers who work with contracts and (2) contract managers. But I’m not keen on the term. When used as a noun, the word professional is slippery. In its narrowest sense, it’s used to refer to those who work in fields that require some sort of certification—lawyers, … Read More

Coming to Indianapolis on 22 September

31 August 2016 by Ken Adams

As part of my constant travels over the next three months—dubbed by me Seminarpalooza—I’m going to Indianapolis, to do a public “Drafting Clearer Contracts” seminar on Thursday, 22 September. For more information, go here. For a sample agenda, go here. For some testimonials, go here. Why mention Indianapolis? Why not focus on … Helsinki! Singapore! Sydney! For one thing, going overseas … Read More

Applying Broken-Windows Theory to Contract Drafting

29 August 2016 by Ken Adams

Are you familiar with broken-windows theory? Here’s the gist of it from the 1982 article in The Atlantic that introduced the theory: Social psychologists and police officers tend to agree that if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken. This is as true in nice neighborhoods … Read More

“Directly”

28 August 201628 August 2016 by Ken Adams

The word directly comes in handy if you want to say in a contract that a party is allowed to do something, or is prohibited from doing something, directly or indirectly. Some examples from the Berkeley Pit that is EDGAR: Executive shall not directly or indirectly render any services of a business, commercial, or professional nature to any other person … … Read More

Notes from the Road: South Bend, Indiana

27 August 2016 by Ken Adams

So here I am in South Bend, Indiana, teaching for the third time an “intensive” course in contract drafting at Notre Dame Law School, the aim being to fit a semester-long course into three weeks. Why am I here? Well, because the law school asked me. And given my peripatetic ways, parachuting in to South Bend for a brief stay … Read More

A Reminder That Sometimes You Can Use Different Categories of Contract Language to Address an Issue

18 August 2016 by Ken Adams

I’m back at Notre Dame Law School, teaching an intensive course in contract drafting—one semester crammed into just under three weeks. As usual, the categories of contract language—my term for how verb structures determine function—is taking a lot of our time. To help my students become familiar with this topic, we looked at some problematic sentences and considered alternatives with more … Read More

An Example of a Confusing Way to State a Point in Time

16 August 2016 by Ken Adams

The blog post by Peter Mahler that I mention in this post about at its sole discretion offers an example of another, unrelated drafting problem. The contract at issue required the company to exercise its option within 60 days after the later to occur of the termination date and “the final resolution of any disputes relating to such termination.” Here’s what Peter … Read More

A Reminder of the Limitations of “At Its Sole Discretion”

17 August 201616 August 2016 by Ken Adams

At MSCD 3.168–.196 and in this article, I discuss why the phrase at its sole discretion and its variants are pernicious. That’s because the unfettered discretion that it seems to suggest can fall foul of the implied duty of good faith. Peter A. Mahler (@PeterMahlerEsq) of the law firm Farrell Fritz offers in this post on his New York Business Divorce blog … Read More

“Hereby Waives the Right To”

16 August 2016 by Ken Adams

Last week, something I saw in a contract I was reviewing prompted me to fire off the following tweet: "Acme hereby waives the right to" = "Acme shall not": use language of prohibition, not language of performance? — Ken Adams (@AdamsDrafting) August 6, 2016 As is often the case, it has to do with the categories of contract language. The … Read More

The voice that matters.