A couple of days ago I noticed a post on LinkedIn by Ian Heptinstall. In it, he quoted a bit of contracts advice from 1916 and asked readers what they thought of it. Here’s that advice: Our custom here is to draw up a contract before having seen the lawyer and then to ask him to put it in more … Read More
Go here for my first post on LegalSifter’s blog. It’s about the different perspective that’s required when you’re reviewing rather than drafting, and it focuses on a provision you see sometimes in confidentiality agreements.
I’ve been doing public and in-house “Drafting Clearer Contracts” seminars for, oh, 14 years now. That’s because people find them worthwhile and, shockingly enough, somewhat entertaining. Otherwise, I would have gotten the hook long ago. So the feedback is positive, but occasionally participants suggest I adjust my approach. For example, here’s what a participant at my recent New York seminar … Read More
I’m a contract-drafting guy, but I have to acknowledge that drafting contracts might not be the most annoying part of the day-to-day contracts process. Assume that Acme does ten deals with ten different companies in which it drafts the contracts using its templates. Then assume that it does those deals using the other guy’s drafts. Odds are that in the … Read More
MSCD guidelines mostly fly under the radar. Apart from a couple of notorious recommendations—I’m talking about you, this agreement with a small a and states instead of represents and warrants—the guidelines don’t attract attention to themselves. But sometimes traditionalists gonna traditional, so you might get a draft back with all sorts of unhelpful traditionalist comments. As I note in this … Read More
I routinely encounter the assumption that lawyers understand contracts better than others, and that the challenge is for lawyers to help everyone else by making contracts clearer. For me, that sets alarm bells ringing. Consider this in terms of my usual framework, which divides contract drafting into the tasks of determining what you say and determining how you say it. … Read More
I noticed that Tim Cummins, head of the International Association for Contract & Commercial Management (IACCM), mentioned in this post on his blog my recent post about GE Aviation’s template initiative (here). I’m pleased that Tim thought it worth his time to read it. Three thoughts: Some Stuff Is Complex Tim again lumps me with traditionalists, saying, in referring to … Read More
I find it convenient to divide the world of contract drafting into deciding what you want to say in a contract and deciding how you want to say it. They’re not distinct tasks, but rather two ends of a spectrum, with blurring in the middle, because how you say something can unexpectedly affect meaning. I focus on the how-to-say-it part, … Read More
In this post I critique Shawn Burton’s article in the Harvard Business Review in terms of the guidance it offers on making your contracts clearer. But it also offers a useful reminder of the benefits of overhauling your templates top to bottom. Usually when I work on a template for a consulting client, I start by redrafting their version of … Read More
The most prevalent defense of traditional contract language is that it has been “tested” by the courts. Heck, I even encountered an ardent proponent of the notion on my recent trip to Saudi Arabia. So I wasn’t surprised to encounter this comment on LinkedIn that endorses the notion. But I was intrigued that the comment was by the general counsel … Read More
