Hot on the heels of Venkat Balasubramani’s Twitter update reminding me of all those I have yet to convince came a message from one of the unconvinced. The individual in question had watched my first webcast and had some questions that we discussed by email. His second email to me ended with the following paragraph:
If […]
Twitter has become a low-key part of my public profile (my Twitter ID is @AdamsDrafting). Links to my new blog posts go out automatically on Twitter; I indulge in the occasional bit of flagrant self-promotion, these days mostly about my webcasts; and I sporadically offer up any halfway rational and maybe-interesting thought that otherwise doesn’t […]
Thanks to reader Steven Sholk, I learned that the U.S. Supreme Court recently considered the “ordinary meaning” of the words because of. Here’s how the CCH Workday blog described the issue:
Construing this critical preposition in the text of the Age Discrimination in Employment Act (ADEA), a five-Justice majority concluded the statute’s requirement that an adverse […]
You can find plenty of discussion online, at Above the Law and elsewhere, of the new “apprenticeship” model of first-year-associatedom at a handful of law firms.
I suggest that such firms have a choice: either they’re going to give their apprentices the same old training, just more of it, or they’re going to use their new […]
Methinks forthwith has as a fusty, moldy air about it. I wasn’t surprised to see it included, along with the likes of hither and mayhap, in this list of quaintly archaic words.
But lo and behold, forthwith was used in 502 contracts filed in the past month on the SEC’s EDGAR system, as compared with 1704 […]
Today the Law Shucks blog posted this item about a former IBM executive, David L. Johnson, who is claiming that his noncompetition agreement with IBM is unenforceable. One element of his defense is that he signed the contract in the space where IBM was supposed to sign. According to Bloomberg:
Johnson told Robinson he signed the agreement […]
In this comment to a previous post, reader Mark Anderson expressed a preference for saying that parties are obliged to do something, rather than obligated. He suggested that use of the verb obligate is the result of the noun obligation being pressed into service as a verb.
Here’s the opening paragraph of what A Dictionary of […]
In the course of considering, for purposes of today’s post on time is of the essence, how contracts are drafted in Quebec, I came across an oddity of the sort that I wouldn’t have expected to encounter in contract language—an instance of “false friends,” in other words pairs of words in two different languages that […]
At the 2008 ABA annual meeting I appeared on a panel with Kevin Kyte, partner at the Montreal office of Stikeman Elliott.
Kevin’s topic was things to bear in mind when drafting contracts governed by the law of a civil-law jurisdiction. It’s a topic I haven’t seen addressed in print, so I permit myself to bug […]
I received the following cry of despair from a Canadian reader:
I’m preparing a partnership agreement and have been given precedent to work with. Using MSCD, I have spent some time trying to rework the precedent’s archaic language to make it more readable. It says, several times, “Each of the Partners severally represents, warrants, covenants and […]
I’ve recently seen and heard references to companies offshoring the task of drafting contracts. For example, this article in today’s London Times says that Rio Tinto has hired a team of Indian lawyers “to work for it on tasks such as reviewing documents and drafting contracts.”
If that means having your offshore lawyers handle hundreds of […]
Recently I wanted to find out more about use of expert testimony to resolve contract ambiguity. (Remember, ambiguity arises when a contract provision is capable of expressing two or more inconsistent meanings.) So I consulted Walter R. Lancaster & Damian D. Capozzola, Expert Witnesses in Civil Trials. I learned that “it remains a basis for […]
It seems as if every couple of months I find out about another company that’s somehow involved in the contract-automation business.
Yesterday I learned about Drawloop. It offers general document-automation services, including automation of routine sales contracts, presumably using mail-merge type functionality. That seems like a sensible niche, one that offers high volume without the complications that […]
Yesterday saw the first broadcast, in a “live” session, of part 1 of my new webcast series “Drafting Clearer Contracts.” The topic was the front and back of the contract.
Because I had prerecorded the webcast, the broadcast was a zero-stress affair. Consistent with the live format, I was on hand afterwards to reply in writing […]
I’ve previously written about whether to use stockholder or shareholder; see MSDC 12.336 and this blog post. (I say it doesn’t matter which you use.)
Here’s a related issue that’s just as thrilling: should you say shareholders’ agreement, with an apostrophe, or shareholders agreement, without the apostrophe? (Obviously the same debate applies to stockholders’ agreement.) Note […]
In contracts, addresses occur in the notices provision. And if a contract doesn’t include a notices provision, usually I’ll include in the introductory clause the address of any individual that’s a party, so as to distinguish that individual from anyone else with the same name; see MSCD 1.49.
But some addresses are more dependable than others. […]
Can astute contract drafting can forestall all contract disputes? No, it cannot. Most contract disputes, sure. But not all.
For example, vagueness is an essential tool for the contract drafter, as often the future is too uncertain to allow you to be precise. But being vague leaves room for future dispute.
And often parties rationally elect to […]
I’ve recently become acquainted with a specialized form of contract language—architectural specifications, which are attached to construction contracts and define the requirements for products, materials, and workmanship on which the contract is based and requirements for project administration and performance.
My entrée to this field was Andrew Wilson, whose business, AWC West, prepares custom-tailored architectural specifications […]
This Mace & Jones “Education Update” alerted me to the recent English case of KG Bominflot Bunkergesellschaft fur Mineralole MBH & Co KG v Petroplus Marketing AG (2009).
Here’s the gist of it: The buyers purchased from the sellers fuel oil that tested OK before shipping but was found to be unsatisfactory on arrival. The buyers […]
Each of my webcasts—or rather the first five, solo webcasts—consists of a narrated and annotated PowerPoint presentation.
That sounds simple enough, but it’s not the norm in the webcast world. Webcasts for the most part consist of phoned-in audio or talking-head video. If there’s a PowerPoint presentation, the audience is invited to view it on-screen or […]
In contracts and elsewhere, it’s standard to refer to remediation of environmental contamination. It’s also standard to use the verb remediate to refer to the act of remediation.
Garner’s Modern American Usage isn’t fond of remediate:
remediate, a back-formation from remediation, is either a needless variant of remedy or a piece of gobbledygook. E.g.:
“The evidence suggested that […]
For the heck of it, every so often I search “contract drafting” on Twitter. A few times I’ve been pleasantly surprised to spot a mention of my book. Once someone who evidently was then in one of my seminars tweeted that the seminar wasn’t as much fun as her dinner with an old friend the […]
Reader Patrick Grant told me about a ConstructionRisk.com newsletter describing a Texas case involving syntactic ambiguity. (Syntactic ambiguity derives from uncertainty over which part of a sentence a given word or phrase modifies.)
The case in question was Consolidated Reinforcement v. Carothers Executive Homes, 271 S.W.3d 887 (Tex. App. 2008), a case before the Texas Court […]
In an item posted today on the (new) legal writer, Ray Ward says the following:
Right now I’m reading a long list of definitions in a bankruptcy plan of reorganization, and I just came across this one: “‘SpiritBank’ means SpiritBank.”
As definitions go, that’s pretty lame. I’m sure you, dear reader, have seen other examples of definitions […]
[Updated June 4, 2009]
I’m pleased to announce that starting June 11, I’ll be offering through West LegalEdcenter a series of seven video webcasts entitled “Drafting Clearer Contracts.”
Each webcast will be an hour long. They’ll be rolled out one by one through the second half of July. Five of the webcasts will explore topics discussed in […]
How come one drafts a contact but writes a letter?
The verb draft has a number of possible meanings, but here’s what the Oxford English Dictionary—the bound version, not the online version—gives as the one definition relating to preparing documents: “To make a draft or rough copy of (a document); to draw up in preliminary form, which […]
Having parties to a contract date their signatures makes sense when there’s a lag time between when the first party signs and the last party signs. And some auditors are requiring that their clients use dated signatures in all their contracts.
But dating signatures can be a nuisance. As I noted in this November 2008 blog […]
The interviews I’ve done on this blog have been about technologies relevant to the contract process or have explored some narrow topic that I’m particularly interested in. What’s been missing is interviews in which people who work with contracts discuss issues relevant to them. Here’s the first such interview; I’ll be doing others every so […]
Black-and-white is simpler than shades of gray—the most straightforward MSCD recommendations are those urging you to scrap entirely a given word or phrase. Here’s a partial list of words and phrases that ideally would be absent from your contracts:
at no time
best efforts
covenant
for the avoidance of doubt
hereinafter referred to as
including but not limited to
including without limitation
in […]
Legal OnRamp, the online forum for in-house counsel and invited outside lawyers and vendors, has announced the “FMC Technologies 1° Law Litigation Value Challenge.” It’s a beauty contest for law firms interested in doing FMC’s litigation work.
I suppose what distinguishes it from the run-of-the-mill beauty contest is that Legal OnRamp represents a particulary public platform. […]
On Thursday, May 28, I’m giving my all-day “Contract Drafting—Language and Layout” seminar in Vancouver, BC, under the auspices of Osgoode Professional Development. Click here for more information.
I did my first public seminars with Osgoode Professional Development, and my Toronto seminars with them have been, in all respects, a resounding success. So I’m eager to […]
In MSCD 12.285–315 I explain why it’s pointless and confusing to say represents and warrants, not to mention representations and warranties. No one has made a serious attempt to refute my argument.
But recently I received an interesting report from the front lines. Knowing that I have a thing about represents and warrants, Trevor Grant of […]
A Canadian law firm recently shared with me its draft “boilerplate” template. On reading it, I saw that the law firm recommends that its lawyers use the following language in any governing-law provisions (I’ve omitted the bit excluding conflicts-of-law principles, as that’s a separate issue that I won’t be addressing in this post):
This agreement is governed […]
In MSCD 12.134 and in these blog posts, I recommend that you rid your contracts of the phrase indemnify and hold harmless. Most lawyers unthinkingly use indemnify and hold harmless as synonyms. And I’ve found that lawyers who instead think those concepts can be distinguished don’t agree on what they actually mean. So using both […]
It’s commonplace for performance to begin before a contract has been signed, with the contract being signed once all necessary approvals have been secured. MSCD 1.32 recommends that in such contexts, you put in the introductory clause the date the contract is signed, rather than the date performance began. (That assumes you’re using a date […]
Here’s what I understand of the practice of having those signing a contract also initial each page of the contract:
It’s commonplace in wills, apparently as a check against substitution of pages.
It’s required by statute in the case of some contracts. For example, under Ohio Revised Code 1349.55, each page of a contract providing for a […]
While in Toronto last week I couldn’t help but admire, from the standpoint of graphic design and engaged municipal government, the timely yellow-and-white notice about handwashing that was posted in all restrooms.
But those who attend my seminars will be aware that the one subject that has had me in a cold sweat more than any other is […]
At my Osgoode Professional Development workshop in Toronto last week, a participant helpfully mentioned a recent English case in which the court held that transferring the signature on an incomplete draft deed or contract to a final version wouldn’t be effective if the changes made were so significant that the final version was arguably a […]
While researching the implications of the word deed (see today’s blog post on deed), I encountered a contract with the following concluding clause:
THIS AGREEMENT has been duly executed as a Deed on the date stated at the beginning of this Agreement.
The phrase executed as a deed also occurs in signature blocks. A variant is signed […]
MSCD 12.148 and this May 2007 blog post consider the word indenture. Well, here’s another word for a particular kind of contract: deed.
Black’s Law Dictionary defines deed as “A written instrument by which land is conveyed” and “At common law, any written instrument that is signed, sealed, and delivered and that conveys some interest in […]
My thoughts are turning to my fall 2009 contract-drafting course at the University of Pennsylvania Law School. It’s time for me to start looking again for a company interested in taking part in a contract-redrafting project with my class.
As previously, I’ll select one contract out of those submitted. The deadline for submitting is June 15. […]
I spent this morning in Toronto conducting a seminar at Rogers Communications, the Canadian communications company. David Miller, the general counsel of Rogers Communications, mentioned a requirement under Texas law that certain indemnification language be conspicuous. I’ve long been vaguely aware of that, so after the seminar I chased down further information.
The gist of it […]
What I do bears little relation to traditional law-school legal-writing programs, which teach writing for litigation—research memos, appellate briefs, and the like. Nevertheless, I had a look at the recent U.S. News rankings of legal-writing programs. (In addition to ranking U.S. law schools overall, U.S. News also ranks them for purposes of ten specialties, including […]
Regular readers of this blog will know that I’m a fervent booster of using document assembly to draft contracts. I keep banging on that drum for two reasons: First, document assembly represents the only way to put mainstream contract drafting on a rational footing in terms of economics and quality. And second, every so often […]
On a flight home from London on Sunday, I started reading The Stories of English, by David Crystal. Published in 2004, it’s a well-received, and well-rounded, study of the history of the English language. Perhaps not an obvious choice for airplane reading, but perfect for me, since it marries, in the opening chapters, my interests […]
In any given contract, the signature block for a legal entity will routinely contain two signature lines rather than just one. Why have two people sign for one party?
I suspect that in most or all contexts it’s because the organizational documents for that entity require that two officers sign all contracts, or contracts worth more […]
The word signatory is ambiguous. Black’s Law Dictionary defines signatory as “A party that signs a document, personally or through an agent, and thereby becomes a party to an agreement.” But it’s also used to mean someone who physically signs a contract, whether as a party or on behalf of party. For example, after “Title” […]
Here’s a usage I haven’t written about before: placing under the contract signature block of an corporation, below the signature line, the notation I have authority to bind the corporation.
Some wrinkles: When a signature block provides for two signatures, the notation is in the plural: We have authority to bind the corporation. Sometimes corporation is given […]
I’ve long read the Strategic Legal Technology blog by Ron Friedmann. Ron has spent most of the last two decades in legal technology, but recently he has shifted his focus to legal outsourcing, becoming SVP Marketing for Integreon. In his blog, he writes about innovation, or the lack of it, in the legal profession generally. It […]
Today I heard from a client with an interesting proposition. They had wanted me to do my day-long “Contract Drafting—Language and Layout” seminar as part of a week-long program for their global contracts personnel, but due to the economic downturn they’ve had to postpone the program. Would I be willing instead to do my presentation […]
Houston Club
City Club of Buckhead
Union Club
Union League Club
Union League Club
Harbor Club
LA Athletic Club
AMA Arlington
Marquette Hotel
Downtown Harvard Club
Cornell Club
University Club
