The idea is that I’ll select one contract out of those submitted by June 15. In the fall 2008 semester my class will redraft all or part of it, and sometime in December we’ll have a conference call with company personnel to discuss our changes. I explain in detail in this March 2007 post how the process works and why I think it’s valuable for my students and, one hopes, the company involved. And in this December 2007 post I discuss how the fall 2007 redrafting project went.

Regarding who might be a suitable candidate, this is what my March 2007 posts says:

So I’m looking for a substantial company (located in the U.S. or elsewhere) that’s interested in having me and my class redraft a core contract that the company enters into dozens or hundreds of times a year. (We’d redraft all of a shortish contract or the first part of a longer contract.) I’d want the company to have been planning its own redraft: I’d prefer to have our work looked at closely rather than considered a curiosity. Ideally, senior members of the company’s contracts personnel would be involved and would participate in a conference call (or videoconference) with my students. And I wouldn’t want anyone to be offended if we were to come back with something that’s significantly different from what we had started with.

Last year we selected a contract submitted by a major financial institution.

This project does require a commitment by the company. I have in mind that we’ll be providing the company with not only a redraft, but also a copy of the original contract extensively annotated to describe its drafting shortcomings. It’s essential that before our conference call the company considers our annotations closely and consults any sections of MSCD referred to.

If you’re interested in discussing with me whether your company would be a suitable candidate for this redrafting exercise, please send me an email.

• Butt, Peter & Castle, Richard, Modern Legal Drafting: A Guide to Using Clearer Language (2d ed. 2006).
• Darmstadter, Howard, Hereof, Thereof, and Everywhereof (2d ed. 2008). 
• Haggard, Thomas R., and Kuney, George W., Legal Drafting in a Nutshell (3d ed. 2007).
• Kuney, George W., The Elements of Contract Drafting: With Questions and Clauses for Consideration (2006) (intended for students).
• Stark, Tina L., Drafting Contracts: How and Why Lawyers Do What They Do (2007) (intended for students).

A confession: I’m not a great reader of books on contract drafting. Other authors have a different analytical approach, and I’m too lazy to figure out how my scheme relates to theirs. As of yet, I’ve only skimmed these books.

An observation: In a review of a  book on drafting published a few years ago, the reviewer said that it was an excellent book that anyone who drafts or interprets contracts should keep at hand. I’m sure that at least some reviewers will say the same about at least some of the above books. So I see the bookshelf of the contract drafter starting to groan under the accumulating weight of worthy offerings. But the busy practitioner’s life is made easier if he or she can consult just one book for authoritative guidance on a given subject. When it comes to the language and structure of contracts, consulting a number of different works on a given subject is just going to eat up time and perpetuate the notion that contract drafting is best considered a craft rather than a commodity. So practitioners should aspire to having only one basic guide to contract drafting on their bookshelf. The marketplace will decide whether any book fits the bill.

• I wasn’t satisfied with the design of MSCD, so I was ready for a fight over the design of MSCD2. But I’ve just seen some sample pages, and they look great. I’m already looking forward to seeing the finished product.
• I’m currently working on the last item that I have yet to submit—the index. Compiling an index isn’t exactly fun, but I’m deriving a certain grim satisfaction from it. And I’ll derive even more satisfaction from completing it. On a related note, I recently came across a book review in which the author noted how the index in the book in question was woefully inadequate, but that inadequate indexes were “typical of the publisher.” For my part, I couldn’t imagine leaving to the publisher the task of doing the index.
• A copyeditor is currently reviewing the manuscript. According to the designer, who has worked with the copyeditor on innumerable titles over ten years, the copyeditor volunteered how she had “seldom, if ever” worked on a book as well-prepared as MSCD2. That’s in part due to the inherent anality of yours truly, but two other factors come into play. First, I wrote twice much of what’s new in MSCD2, once as a blog post, then again in the manuscript. That gave me an additional opportunity to weed out problems. And second, my squad of volunteer proofreaders spotted many mistakes that otherwise would have come the way of the copyeditor.

• Seattle, Thursday, July 17
• Washington, D.C., Wednesday, September 24
• Minneapolis, Thursday, October 16
• Boston, Wednesday, October 29
• New York, Tuesday, November 18
• San Francisco, Tuesday, December 9

Click here to go to the relevant page of West Legalworks’ website.

Words denoting political divisions—from empire, republic, and state down to ward and precinct—are capitalized when they follow a name and are used as an accepted part of the name. When preceding the name, such terms are usually capitalized in names of countries but lowercased in entities below the national level.

CMOS gives as an example “Washington State; the state of Washington.”

In my experience, 99.6 drafters out of 100 would say the State of Washington. It’s generally best to follow standard English usage in such matters, so I’m inclined to join the 0.4 for purposes of contract references to, for example, a certificate of good standing from the secretary of state of the state of Delaware. Any thoughts?

Oh, the lowercase letters in secretary of state? See CMOS 8.21.

Well, I’ve thought of some more—therefore and related words such as thus, hence, and consequently. Here’s an example I just spotted:

The term of this agreement will end three years following the date on which notice of non-renewal or termination of this agreement is given by either the Company or the Executive to the other. Thus, this agreement shall be renewable automatically on a daily basis so that the outstanding Term is always three years following any effective notice of non-renewal or of termination given by the Company or the Executive.

In this example, thus is serving the same same function as that turkey for the avoidance of doubt.

Other than in the recitals, in a contract you don’t reason or explain. You just state rules.

By the way, don’t conclude from this that I don’t like examples. I do, but I also like them to be introduced efficiently.

[4:00PM EDT Update: Since longtime reader D.C. Toedt took issue with this post, let me add one caveat. Occasionally explanation is in order. For example, I suggested in this post on the phrase time is of the essence that if you want to ensure that a particular deadline is enforced strictly, you might want to explain what’s particularly important about that deadline.

But as a general matter, an important phrase in this post is “Other than in the recitals.” The recitals is the obvious place to explain what the parties have in mind.]

Waiver. No provision in this agreement may be waived, except by means of a writing signed by the party against whom the waiver is sought to be enforced.

I find such provisions very odd.

Let’s start by considering what a waiver is. There are two kinds of waiver:

First, a contract might specify that Widgetco has to satisfy a condition before Acme can be required to perform. Acme could elect to waive satisfaction of that condition and perform even though the condition hasn’t been satisfied.

Second, if Widgetco fails to perform an obligation, Acme could elect to renounce damages and proceed with the contract as if there had been no breach. That’s commonly understood to constitute a waiver.

What bearing does that have on the standard waiver provision? Well, the standard provision is phrased as a prohibition. Since Acme is the party that would be making the waiver, the prohibition in effect operates against Acme—it may not waive satisfaction of a condition or nonperformance of an obligation unless that waiver is in writing. That’s flat-out illogical.

Instead, the provision should say that a waiver won’t be effective unless it’s in writing. Here’s how:

Waiver. No waiver of satisfaction of a condition or nonperformance of an obligation under this agreement will be effective unless it is in writing and signed by the party granting the waiver.

The above provision also improves on the standard provision in three ways: It makes clear what a waiver is. It uses the adjectival phrase in writing instead of using the archaic noun writing. And it omits the clumsy “against whom the waiver is sought to be enforced.”

Note that I didn’t set out this afternoon to recast the standard waiver provision. But that sort of remedial work is inevitable, given the pervasive dysfunction in mainstream contract drafting. I hope at some point to undertake a comprehensive reworking of boilerplate.

But I’ve given this a half-hour of thought. I’m sure you won’t hesitate to point out any flaws in my logic.

For purposes of this agreement, the following terms have the following meanings:

You see this language, or some variation, in innumerable contracts. I’m not crazy about the way it groups the definitions, thereby leaving open the possibility that one defined term could have more than one meaning. It’s clear that that’s not the case, but I still find it distracting. Saying have the respective meanings given them below, or some such, isn’t much of an improvement.

So how about this:

For purposes of this agreement, the following definitions apply:

Comments, please!