In an exchange of messages today with a contact, they signed off with this: … and thinking is not popular these days. That sounds pretty terrible. But it might play out in ways that aren’t too terrible, at least when it comes to contract drafting. We apply our thinking to what we enjoy. Or what we have to do. So … Read More
A reader sent me a link to this Times article on “weasel words.” I’ve already done battle with weasel words. See this 2012 post about likely and probable, which features two court opinions expressing differing notions on how likely relates to probable. And here’s some of what MSCD has to say: Even if you assume that it’s clear what likely … Read More
If you’ve read my recent posts, you might have noticed a consistent theme: does being an informed consumer of contract language matter? If it does matter, then presumably the more ways one has to become an informed consumer of contract language, the better. Hence Drafting Clearer Contracts: On Demand, in addition to Drafting Clearer Contracts: Masterclass and Drafting Clearer Contracts: … Read More
I think of my core mission as helping you become an informed consumer of contract language. By “an informed consumer of contract language,” I mean someone who knows how to say clearly and concisely in a contract whatever you want to say. As a practical matter, I suggest that means someone who’s familiar with my book A Manual of Style … Read More
The next piece in my Drafting Clearer Contracts, uh, empire is Drafting Clearer Contracts: On Demand. It’s now live: go here. Currently, it consists of 45 videos and four multiple-choice quizzes. On 1 May 2026 and on the beginning of each subsequent month, I’ll make available a further 25 or so videos and who knows how many quizzes. Once the … Read More
Thanks to tipster Glenn West, I learned of an opinion of the U.S. Court of Appeals for the Federal Circuit: Netflix, Inc. v. DivX, LLC, No. 2024-1541, 2026 WL 405791, at *1 (Fed. Cir. 13 Feb. 2026). It involves a patent dispute. Here’s the language at issue, from claim 1 of the patent: locating encryption information that identifies encrypted portions … Read More
From my perspective as someone trying to figure out how to make contract language clearer, a welcome development in Delaware caselaw was what the Delaware Court of Chancery had to say about the phrase in all material respects. The case is Akorn, Inc. v. Fresenius Kabi AG, No. CV 2018-0300-JTL, 2018 WL 4719347, at *85 (Del. Ch. 1 Oct. 2018), aff’d, … Read More
I noticed that MSCD doesn’t contain the word ampersand. With this post, I aim to set that right for the sixth edition! As Wikipedia tells us, “The ampersand, also known as the and sign, is the logogram &, representing the conjunction ‘and’. It originated as a ligature of the word et (Latin for ‘and’).” I suggest that the only ampersands … Read More
The image above consists of the introductory clause from a form of merger agreement I encountered online. It’s interesting in two respects. First, it doesn’t say “This Agreement and Plan of Merger is dated … and is between”. Instead, by saying “This is an Agreement and Plan of Merger”, it puts the verb up front. That’s unhelpful, because it has … Read More
Recently, I noticed that a contract made it a condition to delivering notice that it be sent by (among other options) “reliable overnight delivery service”. Let’s consider the implications of “reliable”. Imagine that the contract required Acme to notify Widgetco if any widgets exploded. A widget exploded, so Acme sent a notice by Reliable Courier, Inc., for delivery the next … Read More
