In its recent opinion in Kevin M. Ehringer Enterprises, Inc. v. McData Services Corp. (go here for a PDF copy), the Fifth Circuit Court of Appeals reversed a jury award and granted a defendant’s motion for a judgment as a matter of law—the defendant’s “best efforts” promise wasn’t an enforceable promise and so couldn’t form the basis of a fraudulent-inducement … Read More
In its recent opinion in Mosser Construction, Inc. v. Travelers Indemnity Co. (go here for a PDF copy), the Sixth Circuit Court of Appeals devotes several pages to the meaning of “subcontractor” for purposes of an insurance policy. Why? Because “subcontractor” exhibits lexical ambiguity: Is any supplier to the contractor a subcontractor, or is something more required? I’ll leave you … Read More
Last week Thomson Reuters announced the launch of Westlaw Form Builder: Westlaw Form Builder has been launched—an online document assembly tool that helps attorneys find, assemble and review legal forms with greater speed and accuracy. Attorneys can access more than 20,000 forms anytime and anywhere they have an Internet connection. Forms are customizable, continually updated by Westlaw editors, and have … Read More
I’m revising the guidance to Koncision’s confidentiality-agreement template to note that being bound by a confidentiality agreement might not preclude an employee from acting as a whistleblower and disclosing information that might otherwise be covered by the confidentiality agreement. In that regard, consider section 21F-17(a) of the Securities Exchange Act of 1934, which implements the Dodd-Frank Act’s securities whistleblower provisions. … Read More
Paul Lippe, the driving force behind Legal OnRamp, writes a blog for the ABA Journal. The most recent post, available here, is entitled “What Aspects of Legal Services Are Most Likely to Get Standardized?” Here’s the bit that caught my eye: Standardization is not the same as “commoditization,” that great bugaboo of lawyers (I’m not sure what ‘commoditization” is, and … Read More
Here’s what MSCD ¶ 1.48 says regarding information to include in the introductory clause for any party that is an entity: To distinguish a legal-entity party from any other entity bearing the same name, the only information you’d need is its jurisdiction of organization. Consequently, stating the address of a legal-entity party in the introductory clause would serve only to clutter … Read More
[Updated 8:00 p.m. EDT, August 10, 2011: Well, that was a brief experiment: the Highlighter Wordpress plugin was interfering with other features of the site, so I uninstalled it. Seeing that no one used it in the two weeks it was available, I don’t expect howls of disappointment.] As an experiment, I’ve installed Highlighter on this site. Select any text … Read More
When I’m overcome with the urge to consider use of and/or in legal writing, I now know where to go: to this post on Slaw by Ted Tjaden, national director of knowledge management at the Canadian law firm McMillan. I knew right off that Ted had left no stone unturned in his research, as he starts off by citing my … Read More
I’d like to revisit an aspect of the traditional recital of consideration. I mentioned in a footnote in my first book, Legal Usage in Drafting Corporate Agreements, that in some jurisdictions a recital of consideration will establish a rebuttable presumption that the contract in question is supported by consideration. An inquiry from a reader served to remind me that MSCD … Read More
I soon have to start preparing for the fall semester, when I resume my teaching duties at the University of Pennsylvania Law School. I teach one semester a year, and I teach—guess what?—contract drafting. Since I started teaching at Penn Law, I’ve made a redrafting project part of every semester. The idea is to redraft a contract, or part of … Read More
