This from a reader who is director of legal services at a global company: The problem with a full commitment to adopting MSCD is that it takes a lot of work to get good at it. I’ve spent a lot of time with it—I even outlined, law-school style, the chapter on categories of contract language, to use as a cheat … Read More
I suspect that I don’t read contracts like other folks. When I’m in let’s-analyze-contract-usages mode, I trawl through contracts looking at how drafters express a given meaning. When I’m working on templates, I mine the client’s current templates looking for what to adjust and what to replace. That’s different from reading a draft prepared by someone on your side of the transaction, … Read More
I wrote here about Shake, the app that allows you to “Create, sign and send legally binding agreements in seconds.” But this post isn’t about Shake. Instead, it’s about the following extract from this post about Shake for Android: Obviously, more templates would help. You could probably find quite a few recent law grads who are desperate for work who … Read More
This summer I had the following exchange on Twitter with @DevonMSmiley: Having a spot of contract drafting writer's block…anyone have tips for how to break through it? — Devon Smiley (@DevonMSmiley) July 10, 2014 @KonciseD For me, it's having concepts and key words, but nothing is gelling into real language. But I do love the challenge! — Devon Smiley (@DevonMSmiley) … Read More
In previous years, I’ve occasionally moaned on this blog about how I wasn’t getting as many drafting projects as I thought I should. Well, I’m doing more of everything these days, and that includes drafting projects. In case anyone’s interested, let me tell you about a representative project that I worked on this month. I was contacted by the general counsel … Read More
This week I received the following message from lawyer Tim Gilmore: I’ve been following you several years. You’re on the right track. But I’m frustrated. Ten years ago I was happier, in denial, comfortable with the conventional wisdom that legalese is court-tested and plain language is dangerous. Then largely thanks to you and a few others, I opened Pandora’s Box. Now I’m stuck … Read More
I periodically do my best to dump cold water on the notion that one can crowdsource quality contract language. I did so in this 2010 post, in this 2011 post, and in this post and this post in 2013. I now permit myself to do so again after reading this post on Open Law Lab, maintained by Margaret Hagan. It’s entitled “Githubbing Law: Open-Source Legal … Read More
Yesterday’s “Drafting Clearer Contracts” seminar for the Utah State Bar included something new and different—an hour on professionalism and ethics. Legal ethics can be a narrow topic, but with the addition of “professionalism,” I allowed myself to expand the discussion to address different ways one can create problems for oneself in the contract process by being sneaky and the bad things … Read More
I just used in this post a phrase I coined half an hour ago: “negotiation theater.” It refers to the time that lawyers waste negotiating lawyers-only contract deal points that have no basis in reality. Some examples: Whether to neutralize “double materiality” (see this 2013 blog post). Whether to use reasonable efforts or best efforts. Or commercially reasonable efforts. Or reasonable … Read More
A blog post by Tim Cummins of IACCM entitled “Contract Drafting, Communications & Risk” (here) met with quite a bit of approval on Twitter. So I looked at it, then looked at it again. Tim, I hope you’ll permit me some comments from the peanut gallery. Of course I agree entirely with the premise of Tim’s post: Contracts that fail to … Read More
