On occasion, someone who doesn’t agree with me on a given issue will blurt out, “I’ve been doing this for 30 years, and ….” Or if they wish to be more low-key about it, they might simply observe that experienced drafters take a different approach. In some activities, being experienced is a suitable proxy for being good. If I were … Read More
In notices provisions in contracts, you say what’s required to give valid notice. Among other things, that involves specifying what one or more methods have to be used. The standard alternatives are giving notice by hand, by some form of mail, by FedEx or some equivalent, or by email. Recently I’ve considered providing for email as the only means of … Read More
Sometimes inspiration comes from unlikely sources. Here’s an exchange I saw on Twitter: “Upon information and belief” is how a great deal of attorneys begin interrogatory answers or open paragraphs in complaints or motions…this suggests to me that a lawyer crafted this tweet, which is frightening in itself… — Liz Homsy (@Lizzidi) April 1, 2020 I agree that on information … Read More
Recently I noticed Mark Anderson’s post entitled Why Do We Tolerate Bad Templates? Spoiler alert: Mark says it’s because people like what they’re used to and because they assume that if they haven’t encountered problems yet they won’t in the future. Bad I’ll now explore the assumption underlying Mark’s post—that many, or most, templates are bad. Is that the case? … Read More
A force majeure provision in a contract expresses that if something sufficiently bad happens that isn’t under a party’s control, it would be appropriate to suspend performance. Given the coronavirus pandemic, a handful of readers suggested that I write something about force majeure provisions. Initially I demurred—I thought I’d already had my say in previous blog posts. Also, I wasn’t … Read More
I noted with interest Casey Flaherty’s recent post entitled The Limits of Incremental Improvements. This sentence captures the gist of it: “[O]nce you cut something in half, there is nothing you can do, save eliminating it entirely, that will ever again deliver the same raw level of improvement.” This post is on LegalSifter’s blog. To read the rest of it, … Read More
Wearing my LegalSifter-advisor hat, I’ve been looking at what people try to cover in limitation-of-liability provisions—in other words, what they won’t be responsible for. Here’s what I’ve come up with in half an hour of rooting around on EDGAR: Consequential damages Special damages Direct damages General damages Indirect damages Incidental damages Punitive damages Exemplary damages Loss of profits Collateral damages … Read More
I noted with interest this item by Howard Bashman about a program at the 2019 Appellate Judges Education Institute (AJEI) Summit entitled “Thinking Like a Linguist.” As Howard describes it, “the program offered an introduction to the field of linguistics and its past and potential future uses in resolving legal disputes.” But it was actually about a narrower topic—corpus linguistics, … Read More
Thanks to Kim Reid, general counsel at Signalta Resources Limited, a private Calgary energy company, I belatedly learned of a troubling 2019 decision by Justice Fairburn of the Ontario Court of Appeal, Andros v. Colliers Macaulay Nicolls Inc., 2019 ONCA 679, 2019 (Westlaw PDF here; the court’s PDF here). It involves interpretation of this termination provision in an employment agreement: … Read More
[Updated 1:40 a.m. 21 February 2020 to expand the analysis to address additional text in the screenshot Warren tweeted.] On 19 February, the Nation published this article by Ken Klippenstein about the Bloomberg campaign’s confidentiality agreement. The article contained this link to a copy of the confidentiality agreement. All I have to say about it is what I said on … Read More
