As part of my LegalSifter work, I’ve been exploring carveouts to indemnification provisions and creating specs for sifters—bits of AI software—to spot them. Carveouts state that indemnification doesn’t apply to certain kinds of liabilities. The ones I’ve spotted cover liabilities arising out of the following: intentional misconduct bad faith fraud negligence breach of the contract I’m not sure why people … Read More
Updated 11 May 2019: This discussion continued across various platforms. Mark Anderson did this post; that prompted this post by Tim Cummins; I responded to Tim’s post with this LinkedIn comment; that prompted a back and forth between Sally Hughes and Mark Anderson. Mark joined me in concluding that further discussion would be a waste of time, but not before … Read More
Go here for my podcast with Casey Flaherty, director of legal project management at Baker McKenzie. As the blurb says: Ken and Casey have a freewheeling conversation about what’s involved in getting lawyers to do stuff differently. (Well, Casey does the freewheeling part, with his usual aplomb.) For some background reading, see this 2018 blog post in which Casey ruminates on the contract-drafting … Read More
Unless you’re unlucky enough to be riding the copy-and-paste train, contract drafting involves making choices. Lots of them. When I redo a company’s template, it can feel like I’m in a slow-motion version of a first-shooter video game, facing in not-so-quick succession an endless barrage of decisions. I addressed just one such decision in a recent tweet: Anyone want to … Read More
The image above is from a hotel agreement I examined as part of my LegalSifter duties. It caused me to wonder how people go about making final changes to the signature copy of a contract. What are the alternatives, apart from marking changes by hand? It’s been forever since I last did a deal, so I have no idea. Specifically, … Read More
I noticed this article published by IACCM. It’s entitled Why Are Agreements So Hard to Understand?, and it’s by Kristian Foss, a partner in a Norwegian law firm. It prompted the following thoughts: Contracts aren’t easy to understand? No surprise there. Sure, traditional contract drafting is dreadful, but the awkward fact is that transactions tend to be complicated. “Easy” is … Read More
Over the course of a year I did consulting work for U.S. Bank. The person who engineered that was Betsy Clarke, VP and corporate lawyer. Here’s what I had to say about Betsy on LinkedIn: I worked closely with Betsy on consulting projects. I found her unfailing positive and unflappable. She was determined to improve her organization’s contracts, understands commercial … Read More
If a satellite is put into orbit high enough and goes fast enough, it stays in orbit: it just keeps falling around the earth. I feel that’s what my blog is now doing. It’s not something I focus on at the moment; I have more pressing things occupying my mind. But I’m always rooting around contracts and exploring new ideas, … Read More
As someone should have said, The price of freedom from ambiguity is eternal vigilance. Today’s lesson comes to you thanks to the eternally vigilant Glenn D. West, the what-to-say yin to my how-to-say-it yang. He alerted me to the recent opinion of the Delaware Court of Chancery in Batty v. UCAR International, Inc. (PDF here). Here’s the relevant bit (footnotes … Read More
While I was rooting around in hotel agreements, the following provisions caught my eye. First Example This was in a contract between a hotel and some instrumentality of Tennessee state government: The HOTEL certifies, under penalty of perjury, that to the best of its knowledge and belief the HOTEL is not on the list created pursuant to Tenn. Code Ann. … Read More
