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
[This post was originally published May 4, 2013. I’m republishing it because a client, of all people, mentioned it to me—I had completely forgotten about it. On revisiting the original post, I decided that it was worth upgrading my new language from thought piece to something I use in my contracts. So I revisited Vinny Martorana’s analysis from two years … Read More
The act of creation is associated with the act of naming. That which is nameless doesn’t fully exist. I haven’t given a name to my approach to contract language, other than to refer to the result by, for example, brandishing the phrase “Drafting Clearer Contracts.” Similarly, I haven’t given a name to the current regime. Instead, I’ve limited myself to identifying its … Read More
This week I received the following message from lawyer Tim Gilmore: I’ve been following you several years. You’re on the right track. But I’m frustrated. Ten years ago I was happier, in denial, comfortable with the conventional wisdom that legalese is court-tested and plain language is dangerous. Then largely thanks to you and a few others, I opened Pandora’s Box. Now I’m stuck … Read More
Yesterday I attended the biennial conference of the Legal Writing Institute, where I received the 2014 Golden Pen Award. My thanks to LWI members in general, and president-elect Linda Berger in particular, for their generous hospitality. (That’s Linda and me to the right.) If you’d like to know why I received this award, go here. And below is the text … Read More
Ah, what would life be without disputes over and and or! Here’s a fresh one (thanks to cousin Joshua Stein for alerting me) that arose in connection with a series of transactions that freed Caesars Entertainment from having to guarantee a portion of the $18 billion of debt of its subsidiary Caesars Entertainment Operating Co. As a result, investors lost something like $450 million on … Read More
The Michigan Bar Journal’s “Plain Language” column recently celebrated its thirtieth year. Joe Kimble, its longtime editor, wrote this piece marking the event. Congratulations to Joe and to the Journal. They’ve provided a valuable service. My contribution to the “Plain Language” column was a two-part article published in 2002. It was the second article I ever wrote. It’s long been … Read More
The word actively can join the long list of useless—or at least mostly useless—words used on contracts. In particular, it often seems that actively is in effect used just to mean the opposite of passively. That’s redundant, given that actively is always used with a verb that connotes action. Consider the following examples from EDGAR: Liens for taxes not yet delinquent … Read More
The implications of using either or both of the phrases arising out of and relating to is a topic of perennial interest. (For example, see this post, this post, and this post.) So today an article in Corporate Counsel entitled 3 Pitfalls in Contractual Choice-of-Law Provisions (here) caught my eye. It’s by two partners and an associate at McDermott Will & … Read More
I’m gearing up for my November seminars in Seoul, Singapore, and Kuala Lumpur (more information here), and in Abu Dhabi (more information here). I’m particularly looking forward to my visit to Seoul, as it will be my first visit. I thought it appropriate to get a sense beforehand of what the contract-drafting life is like for Korean lawyers. So I … Read More
