Recently I posted on LinkedIn two comments (here and here) regarding the distinction between simplifying a contract and making it clearer. In those comments I say that simplification relates to what you say in a contract whereas clarity relates to how you say it. What you say falls on a spectrum between simple and complex; […]
“Evolution”? “Revolution”? Whatever, Just Fix Contracts Already
Recently I noticed blog posts written by thoughtful people under the auspices of prominent names. One is The Evolution to Modern Legal, by Jason Barnwell; it’s on the Legal Evolution blog, which is edited by Bill Henderson. The other is is here; the other is We Need a Legal Revolution, Not Reformation, by Leigh Vickery; […]
In Contract Drafting, It’s Better to Be Right Than Experienced
On occasion, someone who doesn’t agree with me on a given issue will blurt out, “I’ve been doing this for 30 years, and ….” Or if they wish to be more low-key about it, they might simply observe that experienced drafters take a different approach. In some activities, being experienced is a suitable proxy for […]
Why Are Templates Bad?
Recently I noticed Mark Anderson’s post entitled Why Do We Tolerate Bad Templates? Spoiler alert: Mark says it’s because people like what they’re used to and because they assume that if they haven’t encountered problems yet they won’t in the future. Bad I’ll now explore the assumption underlying Mark’s post—that many, or most, templates are […]
Casey Flaherty on the Limits of Incremental Improvements and “Razzle Dazzle AI”
I noted with interest Casey Flaherty’s recent post entitled The Limits of Incremental Improvements. This sentence captures the gist of it: “[O]nce you cut something in half, there is nothing you can do, save eliminating it entirely, that will ever again deliver the same raw level of improvement.” This post is on LegalSifter’s blog. To […]
Marking Changes on the Signature Copy of a Contract
The image above is from a hotel agreement I examined as part of my LegalSifter duties. It caused me to wonder how people go about making final changes to the signature copy of a contract. What are the alternatives, apart from marking changes by hand? It’s been forever since I last did a deal, so […]
After a Certain Point, You Shouldn’t Make Contracts Any Less Complex
Above is my first graph in Word, and it sure looks like it. But rather than spend any more time fiddling with it, I’m going with it as is: it’s adequate to make my simple point. It’s not the case that contract value and contract complexity both start at zero and increase proportionately. Instead, contracts […]
Should You Include a Duck in Your Draft Contract?
Over dinner recently, a transactional lawyer told me he makes a point of including a duck in each draft he sends to the other side. But he didn’t actually use the word “duck.” That’s my word, thanks to the great Alex Hamilton, who pointed me to this post on the Coding Horror blog, which includes […]
The Market for Effective Business Contracts
Business contracts are different from consumer contracts. For one thing, business contracts exhibit greater variety than do consumer contracts. But in another respect, business contracts are broadly comparable, regardless of that variety. Allow me to explain. Consumer contracts are geared to the mundane transactions you and I engage in when opening bank accounts, taking out […]
Innovation and Contract Drafting: Thoughts Prompted by Ivy Grey’s Article
A couple of recent articles make the sensible point that it’s meaningless just to clamor for innovation in legal. There’s this article by Mark A. Cohen (@legalmosaic, but this post is about this article on Above the Law by Ivy Grey (@IvyBGrey). The title is Innovation Is A Red Herring Without Cultural Change, and in it […]