It’s commonplace for drafters to use the phrase action or proceeding. Consider the following extract from a jurisdiction provision: Any party bringing against another party any legal action or proceeding (including any tort claim) arising out of this agreement may bring that action or proceeding in the United States District Court for the Eastern District of Pennsylvania or in any … Read More
A new document-sharing site, docstoc, has just opened to the public. Its slogan is “Find and share professional documents.” Here’s one of the FAQs: What is docstoc? docstoc is a user generated community for sharing professional documents. Find a vast quantity of high quality legal, business, technology, educational, and creative documents for free. docstoc allows users to upload their documents … Read More
As I was packing up after a recent in-house seminar, one of the participants—I’ll call him Sam—came up to me to discuss a point I had made. I had said that the phrase indemnify and hold harmless is pernicious, in that it invites litigators and judges to find nuances of meaning where most likely none had been intended. (For more … Read More
Reader Thomas Gould asked me about use in drafting of the virgule, also known as the forward slash. Here’s what Garner’s Modern American Usage has to say: Some writers use [the virgule] to mean “per” (50 words/minute). Others use it to mean “or” (and/or) or “and” (every employee/independent contractor must complete form XJ42A). Still others use it to indicate a … Read More
In the case Premium Nafta Products Ltd & Others v Fili Shipping Company Ltd & Others [2007] UKHL 40, the House of Lords—the highest appellate court in the U.K.—has struck a blow for semantic sanity by holding that no valid purpose would be served by distinguishing between arising under and arising out of. I permit myself to quote a useful … Read More
The Times of London has published the first of six excerpts of Richard Susskind’s new book, “The End of Lawyers.” (Click here to go to the excerpt.) The book will be coming out in May 2008. Susskind is a well-known English commentator on law and technology. I’ve previously had occasion to mention him, namely in this post. To this casual … Read More
A cautious drafter would be advised to include in a comprehensive forum-selection provision elements that might seem redundant. Here’s why: An agreement could provide for either permissive (also know as non-exclusive) jurisdiction or mandatory (also know as exclusive) jurisdiction. The following language provides for permissive jurisdiction: Any party commencing against the other party any legal proceeding (including any tort claim) … Read More
I’ll be in Chicago October 28–31, attending the annual meeting of the ACC (the Association of Corporate Counsel). And I’ll be attending as part of the DealBuilder team. DealBuilder is the leading logic-based document-assembly software. It’s developed by Business Integrity, a company with an impressive roster of clients. I’ve long said that only by embracing document assembly will major organizations … Read More
Today’s issue of the New York Law Journal contains my article “Making Sense of ‘Shall.’” Click here to go to the PDF reprint. And click here to access it for free—at least for the time being—on the NYLJ’s website. My thanks to those who were kind enough to review drafts of this article. The topic of shall came up during … Read More
Last year I drafted the following introductory clause to a merger agreement: This merger agreement is dated March 23, 2006, and is between DARIUS TECHNOLOGIES, INC., a California corporation (“Parent”), SWORDFISH ACQUISITION, INC., a California corporation and a wholly-owned subsidiary of Parent (“Sub”), TROMBONE SOFTWARE, INC., a Delaware corporation (“Target”), and the stockholders of Target, namely XYLER XAVIER, an individual … Read More
