Does contract prose matter? Of course it does. Even if you assume that the parties have notionally agreed on the terms of the deal, how you express those terms in a contract can determine how that transaction fares. But many people who work with contracts don’t realize that. Some might be contract managers who regard contract prose as a lawyer … Read More
[Updated 1 January 2018: Revised to reflect that the photo included in Bryan Garner’s tweet features not exceptions (as I originally stated) but conditional clauses.] I noticed an exchange between D.C. Toedt and Bryan Garner. Because it allows me to address a moderately interesting issue, namely where in a sentence you should put a conditional clause, I permit myself to wade … Read More
Go here for a clip run on WABE 90.1 FM, the Atlanta public radio station, and the related article. They’re about lines 37 and 38 of Georgia’s HB 280, a bill that would allow guns on campus at Georgia’s public colleges and universities. You hear me for a big ten seconds. Here’s the language at issue: Not apply to faculty, staff, … Read More
In an opinion issued this week, O’Connor v. Oakhurst Dairy, No. 16-1901, 2017 WL 957195 (1st Cir. Mar. 13, 2017) (PDF here), the First Circuit considered the meaning of the following: The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: Did “packing for shipment or distribution” refer to two kinds of packing, or did it … Read More
In this 2014 post I described what seemed an oddity: putting the defined-term parenthetical at the beginning of the definition. Well, I think that with some tweaking it can be turned into a legitimate technique. Here’s how I’ve just described it in something I’m working on: If you put the defined-term parenthetical at the end of a list of items and … Read More
Remember my article Bamboozled by a Comma: The Second Circuit’s Misdiagnosis of Ambiguity in American International Group, Inc. v. Bank of America Corp.? Well, it’s now in print, in The Scribes Journal of Legal Writing. Go here for a PDF. The citation would be to 16 Scribes J. Legal Writing 45 (2014–15). The article seeks to debunk a variant of the principle of interpretation known as … Read More
What, you want another example of a court mishandling its analysis of potential ambiguity? My SuperGuide post (here) wasn’t enough for you? OK, if you insist … Reader Zach Courson alerted me to a recent opinion of the North Carolina Business Court, Medfusion, Inc. v. Allscripts Healthcare Solutions, Inc., No. 14 CVS 5192, 2015 WL 1455680 (N.C. Super. Mar. 31, 2015) (PDF copy here). … Read More
I noticed this post last week on ContractsProf Blog. It’s about an online contract-drafting exercise developed by Zev Eigen of Northwestern Law School. It appears that the software pairs students who then negotiate and draft contracts for an employment relationship, based on a term sheet they’re provided. ContractsProf Blog offers little detail, and Professor Eigen prefers it that way. Here’s the … Read More
Via this post by Ray Ward I learned of the recent opinion of the Second Circuit Court of Appeals in AIG v. Bank of America (PDF copy here). In the opinion, the court states that whether a modifying phrase following a list of nouns or phrases modifies each item on the entire list, or only the last item, depends on whether … Read More
A recent opinion by the Fifth Circuit Court of Appeals serves as yet another reminder that the job description of anyone drafting a contract includes guarding against overreaching by a court. The case in question is Flagship Credit Corp. v. Indian Harbor Ins. Co., 2012 WL 2299484 (5th Cir. June 15, 2012) (copy here). A finance company that was sued in a … Read More
