One of the participants at my recent Chicago seminar discussed with me what he described as the “optics” of contract drafting. What he was referring to was the value of not waving a red flag at the other side. He provided the following example of alternative section headings: Limitation of Customer Remedies. Customer Remedies. Aaron preferred the second heading—why have … Read More
Here’s an amusingly pointless usage: including o’clock when you state a time of day in a contract, as in before 4:00 o’clock p.m. on the Borrowing Date. Adding o’clock accomplishes nothing. It occurs in 109 “material contracts” filed on the SEC’s EDGAR system in the past year—not often enough to say that it’s a standard usage, but often enough to … Read More
More often than not, contract drafters use words and digits to express numbers, as in no later than thirty (30) days after the Closing. That’s a bad idea, for two reasons: First, it creates clutter that distracts the reader. And the more numbers a contract contains, the greater the distraction. And second, it violates a cardinal rule of drafting—Thou shalt … Read More
That one-man legal-research machine Steven Sholk informed me of the California Court of Appeal’s decision in Vespremi v. Tesla Motors, Inc. (go here for a PDF copy). The part that caught Steven’s eye was the court’s discussion of the following provision in the employment agreement of one of the plaintiffs (the employment agreement of the other plaintiff contained the same … Read More
In this April 2010 post on AdamsDrafting I explained why I thought the notion of an crowdsourced initiative to create contract templates wouldn’t be viable. But seeing as this idea has recently been discussed in this post on Bill Carlton’s Counselor@Law blog and in the comments to this post on Brian Rogers’s theContractsGuy blog, I thought there might be some … Read More
Last month I suggested in this post that trade groups might benefit from partnering with Koncision to produce document-assembly versions of their template contracts. In the same vein, here’s how a partnership with Koncision would benefit any law firm looking to develop document-assembly templates: The development process would take about a quarter of the time that it would otherwise. Koncision … Read More
[Updated 11:30 a.m. EDT, May 6: Getting rid of “definitive transaction” in the language I offered in the previous post caused me to get carried away, and Chris’s comment below has caused me to reverse course. A letter of intent that contains binding confidentiality provisions but is otherwise not binding could conceivably be described as “providing for” a transaction. I … Read More
Here are three early reactions to launch of Koncision’s first product: Sean Doherty checked out Koncision and wrote about it in an extensive Law Technology News article entitled “Koncision Answers ‘Where’s the Content?’ for ContractExpress.com” (go here). Sean summed things up as follows: If you generate a number of NDAs that require variation on a regular basis, then Koncision contract … Read More
Chris Lemens pointed out to me this item on Lexology. (Free registration required, I think.) It’s by Michael S. Melbinger of Winston & Strawn, and it describes a recent decision by the Eleventh Circuit Court of Appeals regarding a forum-selection provision in an employment agreement. Here’s the forum-selection provision: The parties agree that all claims or causes of action relating … Read More
Hot on the heels of rollout of my webcast with Steven Davidoff, I’m now offering an in-house seminar built around my book The Structure of M&A Contracts. Over the course of 2.5 hours, we’ll review the key topics, then consider a stripped-down contract cunningly edited to raise issues that the buyer or the seller would want to spot. In a … Read More
