I just used in this post a phrase I coined half an hour ago: “negotiation theater.” It refers to the time that lawyers waste negotiating lawyers-only contract deal points that have no basis in reality. Some examples: Whether to neutralize “double materiality” (see this 2013 blog post). Whether to use reasonable efforts or best efforts. Or commercially reasonable efforts. Or reasonable … Read More
OK, so we’re all agreed that best efforts promises more than it can deliver—to avoid confusion and avoid wasting time in negotiation theater, use just reasonable efforts. You don’t agree? Oh, I think you’ve come to the wrong place; go here for the Flat Earth Society. Relax! I’m joking. To show you that I feel your pain, I’ll try once … Read More
Ah, what would life be without disputes over and and or! Here’s a fresh one (thanks to cousin Joshua Stein for alerting me) that arose in connection with a series of transactions that freed Caesars Entertainment from having to guarantee a portion of the $18 billion of debt of its subsidiary Caesars Entertainment Operating Co. As a result, investors lost something like $450 million on … Read More
Recently, I’d been feeling restless. Irritable. Prone to laughing jags and fits of tears. I knew that I needed the wisdom of one graced with insight. So I set off a quest, and in the Karakoram, on a ledge high on Gasherbrum IV, I found him, sitting cross-legged in a loin cloth, making origami out of glossy law-firm marketing brochures. … Read More
Last week I was involved in the following exchange on Twitter with @ClearLanguage and @mrsalzwedel regarding—of course—shall: @KonciseD @500wordlawyer @ClearLanguage: I read many contracts where the lawyer uses shall in 3-6 senses. Perhaps efficiency = just drop it? — Matthew Salzwedel (@mrsalzwedel) May 8, 2014 I replied to Matthew that I’d answer his question on my blog, so here we … Read More
A blog post by Tim Cummins of IACCM entitled “Contract Drafting, Communications & Risk” (here) met with quite a bit of approval on Twitter. So I looked at it, then looked at it again. Tim, I hope you’ll permit me some comments from the peanut gallery. Of course I agree entirely with the premise of Tim’s post: Contracts that fail to … Read More
The May 16 issue of the Canadian periodical The Lawyers Weekly contains my article With “Efforts” Provisions, Reasonable Is Better Than Best. Go here for a PDF. It’s addresses the Canadian caselaw, but it should be of interest to anyone who has wondered about how to handle best efforts versus reasonable efforts or any other efforts variant.
Because of the novelty, I tend to blog more about seminars I give overseas compared to ones I give in the U.S. and Canada. But apart from some peripheral local color, all seminars, wherever they’re held, feature the same dynamic. And they all get my full attention. Before I head to Europe later this month, I have public seminars in Chicago on … Read More
Here’s what MSCD 3.244–45 has to say about “passive-type policies”: Some policies are characterized by adjectives such as exercisable and payable and have a structure that’s analogous to the passive voice. This manual refers to such policies as “passive-type policies.” Passive-type policies have two shortcomings. First, as with passive verb phrases (see 3.11), the agent can be expressed by a by-agent, but in contracts … Read More
I’m giving you a crazy amount of advance notice, but on October 16 I’ll be giving for eCPD Webinars a webinar entitled “The Perils of Translating International Contracts.” For more information, go here. Because I’ve lived in various French-speaking countries, and because my sister Christine is a conference interpreter (check out her blog posts on the history of interpreting, here), I’ve … Read More
