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
My wife Joanne recently became executive director of the Belmont Child Care Association. BCCA operates a preschool program for children of workers in New York’s thoroughbred racing industry. It’s a great organization that gets a lot of backing from the industry. I expect that with Joanne at the helm, BCCA has great things in store. On August 20, BCCA will hold its annual “Racing … 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
You know 10b-5 representations, right? (Because 10b-5 representation is a term of art, I’ll let slide use of the word representation.) Here’s one from an underwriting agreement, with the relevant language highlighted: The audiovisual presentation made available to the public by the Company at [URL] is a “bona fide electronic roadshow” for purposes of Rule 433(d)(8)(ii) of the 1933 Act, … Read More
May can mean might, but I don’t think that’s any reason for me to stop recommending that you use may as the workhorse for language of discretion. Here’s what MSCD 3.160–62 says about may meaning might: In addition to conveying discretion, may can also be used to express that something might come to pass. The result is ambiguity. Consider the … Read More
Updated August 9, 2014: Comments by Harley Meyer have prompted me to update this post. Harley makes a couple of points. He focuses on the notion that courts will allow for cure, regardless of what the contract says. I haven’t yet researched this extensively, but I’ve found enough to suggest that drafters shouldn’t assume that that’s the case. For example, Robert … Read More
Consider the verb tend. It means “regularly or frequently behave in a particular way or have a certain characteristic; be liable to possess or display (a particular characteristic).” Well, don’t use tend in contract drafting. In contracts, something is relevant if it happens, if it might happen, if it’s likely to happen, or if it doesn’t happen. You could also say … Read More
Recently I had a chat with the general counsel of a technology company. We discussed whether it would make sense for the company to overhaul its templates and automate them. I mentioned my showcase document-assembly template (here), and the GC said, with a note of consternation, that the template asked lots of questions. Since others doubtless have that reaction, I’ll … Read More
With the summer lull about to end, I’m planning my fall travels. I’ve listed below the trips I currently have planned. If a given trip is for a public seminar, I’ve provided a link. When I’m not on the road, I’ll be in the New York area. If you’d like to arrange an in-house presentation, discuss your organization’s templates or contract … Read More
It’s commonplace for contracts to provide that a party may terminate for “material breach” by the other party. I’m not keen on that standard: as longtime readers will know, material is not only vague, it’s also ambiguous—drafters use material to mean either “of dealbreaker-level importance” or just “significant” (in other words, “nontrivial”). (If I’m using defined terms, I’d use the defined term Significant … Read More
