The other day, Alex Hamilton dropped this on Twitter: Using "shall" in contracts, as suggested by @AdamsDrafting, has become a shibboleth. There are those who want to be modern, and those who've done their homework and are actually being modern. — Alex Hamilton (@AlexHamiltonRad) March 10, 2021 It’s been years since I’ve written anything about use of shall in contracts. … Read More
Today I noticed this post on LinkedIn, by Marty Finestone. Among other activities, he’s a legal designer. (Hi, Marty.) Because what I have to say would exceed LinkedIn’s character limit for comments, I permit myself a low-key comment by means of this post. Marty’s post features a photo with the slogan “Contracts shouldn’t be designed for lawyers.” I suggest it … Read More
Last week I asked this on Twitter: Is there a kind of term you really DON'T want to see in the other side's draft contract? Something that sets the alarm bells ringing? pic.twitter.com/8ICeW8OAQ4 — Ken Adams (@AdamsDrafting) March 11, 2021 And I posed the same question in a post on the LinkedIn group for A Manual of Style for Contract … Read More
Yesterday I saw a post on LinkedIn that mentioned Sullivan v. Abraham, a 2016 opinion of the Texas Supreme Court (PDF here). The LinkedIn post mentions that the opinion involved a serial comma, so of course I had to check it out. Unfortunately, this opinion offers another example of a court that’s inept at textual interpretation. As such, it’s worth … Read More
Last week I started three series of my online course Drafting Clearer Contracts: Masterclass for an Asian company with global operations. In the first session of Masterclass we discuss the front and back of the contract, just to get everyone used to comparing dysfunctional traditional contract language and the clearer alternative. I flashed on the screen a slide containing one … Read More
Last week I oversaw session 8—the final session—of the series of Drafting Clearer Contracts: Masterclass intended for the UK and Ireland. A couple of days later most of the group then gathered for a celebratory Zoom session—a nice idea. That’s when I took the screenshot above. No More Series Limited by Country I don’t think I’ll do another “UK & … Read More
Remember the 2002 movie Minority Report? Here’s how Wikipedia describes the premise: In April 2054 Washington, DC’s prototype “PreCrime” police department prevents murders, via three clairvoyant humans (“Precogs”) attached to a computer, who have an innate ability to “previsualize” crimes of extreme emotion and violence, before the offending suspect even begins the fatal deed. Well, you can participate in an … Read More
As I was driving in my car yesterday, the Bruce Springsteen song “Streets of Philadelphia” came on. The second line of the lyrics caught my attention: “I was unrecognizable to myself.” It wasn’t because of the imagery or anything hifalutin like that. Instead, I noted that use of the adjective unrecognizable was an interesting choice. For most utterances, you could … Read More
Revisiting this 2014 post on reading a contract reminded me of an aspect of reviewing contracts that perhaps doesn’t get the attention it deserves: factoring in the default rules. If your understanding of a transaction is limited to what’s in the contract, you might be putting yourself at a disadvantage—you might be unaware of default rules that would apply in … Read More
"Crap! We added 'pandemic' to our force majeure provisions, but no one told us to add 'Arctic outbreak' or whatever the freak you call this!" Drafters are always refighting the last FM war. Instead, play a long game and lose the parade of horribles. See https://t.co/lLkFG3UM0p https://t.co/z9T1THoHJ8 — Ken Adams (@AdamsDrafting) February 20, 2021 That’s it. That’s the post.
