Last week I noticed this item on the website of the Licensing Executives Society (U.S.A. and Canada). Entitled Clarifying Provisions Avoid Ambiguity in Patent License Agreement, it discusses contract provisions at issue in the opinion of the Delaware U.S. District Court in TQ Delta, LLC v. Adtran, Inc. (PDF here). (The court subsequently reconsidered its opinion, but not in a way that has a … Read More
I noticed that John Gillies’s review of the fourth edition of A Manual of Style for Contract Drafting (here) attracted a few comments, including this one by Angela Swan, counsel at the Toronto law firm Aird & Berlis and adjunct professor at Osgoode Hall Law School, York University: Adams is dead wrong in his views on the various “efforts” clauses one … Read More
Thanks to that one-man research department, Steven Sholk, I learned of this article on Law360, entitled 3 Contract Drafting Myths Debunked. It’s about TA Operating LLC v. Comdata Inc., C.A. No. 12954-CB (Del. Ch. 11 Sept. 2017) (PDF here). It serves as a reminder that if you regard two contracts as a package deal, with performance under one being conditioned on … Read More
It’s likely that to some degree your templates are constructed of traditional contract language, with all the confusion, wordiness, archaisms, and redundancy that entails. You want to improve your templates so they’re clearer, more concise, and better address your needs. Well, here’s how that might not happen. You assign one of your in-house lawyers to do the work. Pothole 1: … Read More
Last Friday I noticed this post on Above the Law. It’s by Stefan Savic, an associate at the law firm Balestriere Fariello. The title is Legalese: Won’t Do With It, Can’t Do Without It. According to Savic, traditional contract legalese is impenetrable. He says that although lawyers have been encouraged to use plain English, “the day-to-day legal universe has been slow to move … Read More
As their principal objection to tinkering with mainstream contract language, traditionalists offer the notion of “tested” contract language—mess with the standard formulations and you invite a world of risk into your lives. My objection to that objection has been that it’s mostly offered without any backup. Usually it’s a platitude that’s invoked as a matter of expediency, to rationalize maintaining the status … Read More
Keith Lee is the lawyer behind the blog Associate’s Mind. He’s also author of The Marble and the Sculptor, a book for law students, but that’s beside the point, because what’s on my mind is his most recent blog post. It’s entitled “Should Lawyers Ditch Legalese?” It mentions my recent Beyoncé-inspired post, but I stuck around to read his recommendations on … Read More
Here we go again. You might recall that syntactic ambiguity involves uncertainty over what part of a sentence a phrase modifies, or what part of a phrase a word modifies. If you want a whole bunch of examples of syntactic ambiguity, just search for “syntactic” on this blog. Well, the most recent Supreme Court opinion, Lockhart v. U.S. (opinion PDF … Read More
Yes, I can see that you’re vehemently opposed to a recommendation I’ve made on a topic of interest to you. And yes, I know that you’ve been doing deals for twenty years. The problem is, for twenty years you’ve been relying on conventional wisdom. For twenty years, you’ve been paying the price for the lack of anything resembling coherent commentary … Read More
Longtime readers will know that I have no time for the notion of “tested” contract language—instead of continuing to use confusing contract language because a court has had occasion to attribute meaning to it, I prefer to state meaning clearly. So instead of relying on caselaw to tell me how to draft contracts, I find caselaw mostly useful for the … Read More
