As I noted in this 2013 post, I’ve long thought that it would be valuable to do a study of what proportion of contract disputes are caused by problematic contract drafting. Well, this notion has advanced from the hypothetical to the possible. So here are some thoughts as to how this might be done: I assume that it would make senses … Read More
Like many a teenager in olden times, I had my Beat Generation phase. As far as I can see, it had no demonstrable effect on my life. No Neal Cassady I! But one fragment has somehow stuck in my mind. Here’s what William Burroughs says in the introduction to Naked Lunch: The title means exactly what the words say: naked lunch, … Read More
For a while now I’ve been harping on about how courts should admit expert testimony on ambiguity. (For my most recent statement on the subject, see the bottom of this post.) But from private conversations, I’ve gotten the sense that even if admitting expert testimony on ambiguity makes sense, judges aren’t keen to do anything that would add to paperwork … Read More
I saw this tweet a couple of days ago: Tonight's legal drafting music is Daenerys Targaryen's theme music. Haunting stuff, melancholy contract drafting. https://t.co/yIANVTHEUV — Jas Purewal (@gamerlaw) April 20, 2015 It prompted the following thoughts: Do you listen to music while drafting? If so, what do you listen to? I don’t, at least not while engaged in the task. … Read More
Having written an article on represents and warrants, I had to find a home for it. That caused me to consider again the whole business of submitting articles to journals run by law-school students. It also caused me to consider the significance attributed to publishing in law reviews. A Prestige-Driven System Academics have long groused about law reviews. As far … Read More
Recently I read a contract that contained scattered search-and-replace glitches. In attempting to remove identifying information, someone had searched for one of the party-name defined terms and replaced it with something generic, with unintended consequences. I can’t tell you the exact change they made, but it’s as if they had replaced Signa with Vendor and had created as a byproduct scattered … Read More
Here’s what it takes to be a great contract drafter: Know the deal mechanics. As a drafter, it’s your job to express the transaction in a way that advances your client’s interests most effectively. You can’t do that unless you’re aware of the full range of options for structuring the deal. I don’t mean to suggest that you yourself have to possess … Read More
I was recently reminded of the following, from a work on contract drafting: Effective writing consists of clear communication of the subject matter to its intended audience. The audience for commercial contracts is sophisticated business people and their lawyers. The notion that complex commercial contracts should be written in plain English, so as to be understood by people who would never be expected to read … Read More
The other day I had a chat with a BigLaw senior associate. He operates at a very high clock rate: he rattled off various doctrinal propositions that were foreign to me, and he suggested analogies to this, that, and the other. It was all rather over my head. But I’m fine with that, because I’ve long recognized that people’s minds can … Read More
I see plenty of signs of increasing interest in rational contract language. For one thing, people keep buying MSCD in healthy numbers, and I find appreciative readers in all sorts of place. But how about objective evidence that people are choosing to follow MSCD‘s recommendations? Well, here’s a little test I ran. I searched that great manure lagoon, the SEC’s EDGAR … Read More
