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In Contracts, Everything Looks Like a Need for Expertise

“Confirmation bias” is a term for the tendency to interpret new evidence as confirming your existing beliefs or theories. The notion is expressed in the old saw that if all you have is a hammer, everything looks like a nail. My hammer is that it’s important to get right what you say in a contract and how you say it, … Read More

“Masterclass” Isn’t for Everyone

Last year the head of a government department that handles procurement had a dozen people on his team take my online course Drafting Clearer Contracts: Masterclass. Yesterday I asked him how it had gone. Here’s the most relevant part of what he had to say: “What I heard from most attendees is that they didn’t find your course useful in … Read More

How Do You Learn How to Review a Contract?

Learning how to review a contract is the same as learning how to draft a contract: you have to know what to say and how to say it clearly and concisely. Of course, when you’re drafting, you’re in control, and you have a copy-and-paste starting point that you got from somewhere, so you can appear that you know what you’re … Read More

Misapplying Sale-of-Goods Concepts to Services

Selling services is very different from selling stuff, so contracts for one are different from contracts for the other. Yet drafters are prone to deploying in contacts for the sale of services concepts that make sense only for selling goods. One example of that is saying that services are being sold “as-is.” When you sell a car “as-is,” that means … Read More

What “Vague” Means in the Context of Interpreting Contracts

I’m in the habit of importuning people. (Importune means, according to one dictionary definition, “harass (someone) persistently for or to do something.”) I don’t importune just anyone though—I limit it to experts in subjects that have a bearing on contract language. And perhaps a better word is supplicate. Those whom I importune, or supplicate, don’t necessarily respond adversely. For example, … Read More

2022 Series of “Drafting Clearer Contracts: Masterclass”!

Better late than never, here are the first 2022 series of my online course Drafting Clearer Contracts: Masterclass: Masterclass (19), 11:00 am Fridays, 14 January to 4 March Masterclass (20), noon Thursdays, 10 February to 31 March Masterclass (21), 11:00 am Wednesdays, 2 March to 20 April Masterclass (22), noon Tuesdays, 5 April to 24 May This course is built around … Read More

The Contract Drafter as Architect

This post on LinkedIn by Michael Naughton serves as a reminder of the perils of the artisanal approach to contract drafting: if there are no rigorous standards, you’re free to constantly reinvent a defective wheel. So if it’s not artisanal, how should we characterize contract drafting? Here’s what I said in this 2104 post: “I suggest that it’s a craft—the … Read More

Wading Through Caselaw Probably Isn’t a Good Use of Your Time

Recently I did this post prompted by an exchange with a reader. That exchange started with my reader asking this question: How do you stay on top of contract dispute cases that deal with imprecision of language, as you discuss on your website? Are there certain search terms you use in Westlaw? I have tried to search for cases, but … Read More

Don’t Give Multiple Persons a Singular Collective Defined Term

Today I noticed this tweet: VCs: "don't you dare send an NDA before meeting with us or you're a joke. ideas are worthless." Also VCs: "welcome to our office please use this nice iPad to sign a one-way NDA. our ideas are worth everything." pic.twitter.com/U8kxkTNcRM — Jonathon Barkl (@jonathonbarkl) January 29, 2020 As a fan of found contract text, I … Read More

It’s Meaningless. Leave It In or Take It Out?

Today @solirvine tweeted this in my direction: Related: in your extensive corpus, have you ever addressed the dynamic of “it's meaningless/unimportant, so just leave it in” versus “it's meaningless/unimportant, so let's take it out”? That’s a conversation I have at least once per transaction. — Sol Irvine (@solirvine) January 22, 2020 Absent other considerations, you take out that which is … Read More