Process

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 being good. If I were … Read More

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 bad. Is that the case? … Read More

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 I have no idea. Specifically, … Read More

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 want to default to a … Read More

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 following definition of duck: … Read More

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 insurance, signing up for online … Read More

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 she asks, “So how do … Read More

Two Items from Radiant Law (and a Shout-Out to MSCD)

Readers of this blog will be familiar with the ever-raffish Alex Hamilton, but I haven’t had occasion to mention his UK-based business, Radiant Law, which describes itself as “a law firm leading the way in optimising how large companies create, negotiate and manage their commercial contracts.” I’m doing so now because two items on their website caught my eye recently. … Read More

What Incremental Change Looks Like, Part 2

I keep my eye open for signs that MSCD-compliant language is seeping into contracts. For example, last week while rooting around on Edgar, I noticed a contract that uses my force majeure language. (Go here for my force majeure language.) But if I were looking for A Manual of Style for Contract Drafting to quickly result in sweeping change, I’d … Read More