Corporate & Securities Law
AdamsDrafting 
Focused on the language of contracts.
Post Frequency: 0.9/day Last Entry: November 20, 2009 at 22:08:39 Recent Entries: 297
By Ken Adams
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Why Bother Learning to Draft Contracts More Clearly?
Posted on November 20, 2009In my recent blog post about how BigLaw associates have thus far been immune to the charms of my West seminars (click here), I offered some reasons as to why that might be the case. But I omitted one possible reason?that learning how to draft contracts ranks low one’s list of priorities...
The Not-So-Mysterious Dearth of BigLaw Associates at My Public Seminars
Posted on November 13, 2009On November 17 I’ll be giving a West LegalEdcenter seminar in New York. I suspect that although I’ll be in the densest BigLaw cluster in the land, BigLaw associates will be underrepresented at the seminar, as compared to company counsel and contracts professionals...
More Syntactic Ambiguity
Posted on November 13, 2009The ever-alert Steven Sholk has informed me of another legal opinion discussing syntactic ambiguity. This one was issued by the Tenth Circuit Court of Appeals and addresses how much of a provision in an insurance policy was modified by a closing modifier...
Drafting Without Punctuation?
Posted on November 07, 2009A participant at my recent seminar in Ottawa reminded me of something I’d never paid much attention to?the idea that one should draft without punctuation. It’s a hoary old notion that still lingers in Commonwealth jurisdictions. Here’s what an Australian text has to say on the subject: Traditional legal drafting uses punctuation sparingly...
?Remit? and ?Remittance?
Posted on November 07, 2009The words remit and remittance occur relatively often in contracts. Black’s Law Dictionary gives as one definition of remit “To transmit (as money) (upon receiving the demand letter, she promptly remitted the amount due).” And here’s how it defines remittance: “1...
?Hereby Grants? or ?Hereby Grants To??
Posted on November 06, 2009Warning: grammar nerdiness ahead. In license agreements I see the following two alternative constructions: Acme hereby grants Widgetco a license to … Acme hereby grants to Widgetco a license to … The second alternative represents the inferior choice...
?To Not? or ?Not To??
Posted on November 05, 2009Sometimes one encounters in contract drafting issues that are of broader relevance. In MSCD, discussion of such issues is grouped in chapter 16, and on this blog they’re grouped in the category “Drafting as Writing.” I encountered one such issue yesterday, when I received the following email from a reader: I was wondering whether there is any [...
?Addendum?
Posted on November 02, 2009Someone recently asked me what I thought of using the word addendum in connection with contracts. I’m not crazy about it. Black’s Law Dictionary defines addendum as “Something to be added, esp. to a document; a supplement.” So an addendum adds something to a contract, but it’s not clear whether you’re amending or supplementing the contract...
Seeking Input on Creating a Searchable Digital Archive of Existing Contracts
Posted on October 30, 2009I’m occasionally asked about how one might go about creating a searchable digital archive of a medium-sized company’s hard-copy contracts. It’s nothing I’ve had any direct experience with. If you have any suggestions, I’d be interested to hear them, and I suspect other readers would too.
Some Webcast Feedback
Posted on October 28, 2009From the perspective of the presenter, one key way in which webcasts differ from live seminars is that feedback is hard to come by: since launching my series of webcasts with West LegalEdcenter, I’ve heard nary a peep from anyone who has watched them...
Wall Street Journal Article and Video on ?Throughout the Universe?
Posted on October 28, 2009The Wall Street Journal has published this article on use of the phrase throughout the universe in contracts. And below is the accompanying video. I’m featured fleetingly in both. Most of my interview ended up on the cutting-room floor, presumably because my take on this subject was dreadfully earnest: The phrase throughout the universe, which I [...
?Irrevocably?
Posted on October 28, 2009Recently the word irrevocably attracted my attention. It means “unalterably.” And more often than not it’s redundant. That’s because generally when a contract party takes an action, it follows that absent anything in the contract to the contrary, the action can’t be undone...
The Problem with Law-Firm Template Initiatives
Posted on October 26, 2009The history of law-firm template-contract initiatives is not a happy one. Various factors conspire against a law firm successfully implementing and maintaining rigorous templates: Law firms are generally asked to draft a broad range of documents. Any one law firm may not be asked to handle a given kind of transaction often enough to warrant devoting [...
Assigning Future Rights
Posted on October 25, 2009I find that the notion of categories of contract language (considered in detail in chapter 2 of MSCD) often provides a useful framework for analyzing substantive drafting issues. Take an issue I was asked about twice recently, once at the ACC annual meeting, once by one of my Penn Law students...
Wire-O Is Back!
Posted on October 25, 2009The ABA now has in inventory the third printing of MSCD. And we’ve reverted to the binding used in the first printing, namely Wire-O binding, or more specifically semi-concealed Wire-O binding, but we’ve also fixed the first printing’s binding problems...
?Formally? and ?Formal?
Posted on October 24, 2009The word formally occurs fairly often in contracts. It appears in 994 contracts filed as “material contracts” on the SEC’s EDGAR system in the past year. Here are some examples: Lender may conclusively rely on such certificate until formally advised by a like certificate of any changes therein...
New Email-Update System
Posted on October 21, 2009I’m now using a service to handle my email-update system. It’s a good deal more efficient than my previous setup. For one thing, I’m not involved when someone subscribes or unsubscribes. I’ve just sent out an email update. If you’ve subscribed but you don’t receive it in the next couple of days, you might want to [...
In Commercial Transactions, Which Side Gets to Draft?
Posted on October 20, 2009While lurking at the Business Integrity booth at the ACC annual meeting, I’ve had a chance to discuss with many people their company’s contract-drafting requirements. Some of those I’ve spoken with have been in the procurement department; others have been in sales...
?Arising Out Of or Relating To??Third Time?s a Charm
Posted on October 18, 2009One function of this blog is to give me a forum for screwing up without embarrassing myself too much. In this blog post from last month, I took a second crack at analyzing arising out of or relating to. Further reflection revealed that effort to be, well, lame, and I’ll be deleting it in the next [...
ACC Annual Meeting Session on Contract Automation
Posted on October 14, 2009I’m delighted that on Monday, October 19, from 9:00 a.m. to 10:30 a.m., I’ll be in Boston, taking part in a panel discussion at the annual meeting of the Association of Corporate Counsel. The session is entitled “Self-Service Contract Creation: Providing Better Service in a World of Frozen Budgets”?click here for more information...
?Draftsman?
Posted on October 02, 2009I recently encountered the word draftsman in a law review article. That prompted me to give some thought to use of the word. It’s certainly commonplace?a search of the TP-ALL database on Westlaw (”All Law Reviews, Texts & Bar Journals”) retrieved some 5,000 articles written in the last three years that use it...
It?s One Thing to Know the Rules, Another to Play the Game
Posted on October 01, 2009Yesterday I posted two items (this one on and and or, this one on the passive voice) that were rather more harum-scarum than my normal offerings, in that I ended up quickly making significant changes in response to reader comments. (Thank you, all.) Having previously limited myself to the building blocks of contract language, I’m now [...
The Passive Voice Has Its Uses
Posted on September 30, 2009MSCD 2.18 notes that the passive voice can be of use in contracts. Consider the following example: If any Person brings a proceeding to compel the Recipient to disclose any Confidential Information … In this context, the active voice is wordy. It’s obvious that a proceeding would have to be brought by someone...
?And? and ?Or? and Covering a Disparate Group
Posted on September 30, 2009One of my afflictions is paranoia regarding and and or. (You may recall my deconstruction of a Toronto restroom notice.) Consider the following: If a proceeding seeks to compel the Recipient or any of its Representatives to disclose any Confidential Information … I’m not keen on that formulation?it wouldn’t cover a proceeding to compel the Recipient and one [...
?Except As Otherwise Specified in this Agreement?
Posted on September 30, 2009As reported on ContractsProf Blog, the phrase except as otherwise specified in this agreement featured in newscaster Dan Rather’s contract with CBS. It also featured in a New York appellate court’s opinion in CBS’s appeal of the trial court’s refusal to dismiss Rather’s breach of contract claim against CBS...
On Declining to Post Comments
Posted on September 27, 2009To my recollection, until a couple of weeks ago I had outright rejected only a single comment, and that was on grounds of undue snarkiness. I had avoided posting perhaps a couple of dozen other comments, but in those cases I attempted to smooth things over by treating the comment as an email and sending [...
?Representations and Warranties??Glenn West Wades In
Posted on September 25, 2009Following on this September 18 post and this September 20 post, the saga continues: Glenn West, partner at Weil Gotshal and author of the two most useful articles on substantive contract law that I’ve come across in a long time, agrees with me on represents and warrants and representations and warranties...
?Representations and Warranties??A Handy 558-Word Analysis
Posted on September 20, 2009It’s clear from reader feedback that I need to do a better job of explaining myself. Here goes: It’s pointless and confusing to use in contracts the phrases represents and warrants and representations and warranties because … Because my informal inquiries indicate that most lawyers treat the elements of those phrases as synonyms, much as they do [...
Some Kinds of Backdating May Be Permissible, But that Doesn?t Make It a Good Idea
Posted on September 20, 2009On the website of the state bar of Wisconsin I came across an article entitled “Backdating Documents: Not Necessarily the Stuff of Scandal.” It contains the following passage: Drafting and executing a document after an event occurs, but in a manner that accurately reflects the date on which the event transpired, is a permissible form of [...
Revisiting ?To the Best of Its Knowledge? (Plus Thoughts on the Marketplace of Ideas)
Posted on September 20, 2009While reading Lorne & Bryan’s discussion of representations and warranties I encountered the following statement: Similarly, there should never be any objection to “representations” being made to the best of the knowledge of a party (as opposed to “to the knowledge” of a party, a phrase that is at best ambiguous and at worst contrary to [...
Who Gets to Draft Contracts?
Posted on September 20, 2009In this post on his licensinghandbook.com blog, Jeffrey Gordon suggests that lawyers should consider the value that contract specialists can bring to the contract process. That got me to wondering whether any such contract specialist would have to be a lawyer...
If You?re New to This Site
Posted on September 20, 2009If you’ve been lured to this site by my ABA Journal “Legal Rebels” profile and would like to learn more about what I do, you might want to check out the following: the page of this site dealing with my book A Manual of Style for Contract Drafting information about my public seminars with West LegalEdcenter (in [...
?Representations and Warranties??Once More, With Feeling
Posted on September 18, 2009I?ve previously explained why the phrases representations and warranties and represents and warrants are pointless and confusing. And that applies whatever the governing law. My most detailed take on the subject is in MSCD, but I also addressed it in this Business Law Today article and in these four blog posts...
New Article on Extra-Contractual Liability
Posted on September 18, 2009The August 2009 issue of The Business Lawyer contains a great article by Glenn D. West and W. Benton Lewis, Jr. of Weil Gotshal entitled “Contracting to Avoid Extra-Contractual Liability?Can Your Contractual Deal Ever Really Be the ‘Entire’ Deal?...
If You?re New to This Site
Posted on September 18, 2009If you’ve been lured to this site by my ABA Journal “Legal Rebels” profile and would like to learn more about what I do, you might want to check out the following: the page of this site dealing with my book A Manual of Style for Contract Drafting information about my public seminars with West LegalEdcenter (in [...
So I?m a Legal Rebel
Posted on September 18, 2009As part of their ambitious Legal Rebels project, the ABA Journal has named me one of their fifty “Legal Rebels.” They’ve been rolling out profiles of their Legal Rebels, and they’ve now posted mine; click here to go to it. Rebellion isn’t something that usually comes to mind when I think of the American Bar Association, but [...
The Limits of ?Relating To?
Posted on September 17, 2009For all my dwelling on relating to, I haven’t considered at what point something might be too remote to a given circumstance to be related to it. That, of course, is a fact-driven issue that isn’t susceptible to generalization. But it can be useful to consider examples, and Vickie Pynchon provides one in this post on [...
The Breast Cancer Research Foundation Taking Part in the Penn Law 2009 Redrafting Project
Posted on September 14, 2009In this April 2009 post I solicited submissions from any company interested in taking part in this semester’s Penn Law redrafting project. But then I had a change of heart?why not invite a not-for-profit organization to take part? So we’re going to be redrafting a trademark license agreement that The Breast Cancer Research Foundation enters into [...
Lawyer and Contract Manager: Compare and Contrast
Posted on September 14, 2009I was recently reminded of this article on the role of contract managers, as well as this follow-up article prompted by the recession. Both were written by Tim Cummins of the International Association for Contract and Commercial Management (IACCM). These articles caught my eye because my public seminars and my in-house seminars at companies are attended by [...
?In Other Words?
Posted on September 14, 2009The other day I encountered in other words in a contract. An Edgar search indicates that it occurs often enough to be worth mentioning. In effect, in other words allows the drafter to take a second crack at articulating something. As a general matter, say something once, why say it again?
?Is Advisable and in the Best Interests Of?
Posted on September 11, 2009It’s commonplace for resolutions in board consents to state that something is advisable and in the best interests of the company. I say omit is advisable and as being redundant. I thought that maybe this couplet occurs in some statute or other; I can understand why drafters would want to track the language of statutes...
Superfluous Recitals in Merger Agreements
Posted on September 11, 2009Methinks that the recitals in the average big-time-M&A merger agreement are bloated. By way of example, below are the recitals from the August 31, 2009, merger agreement for Disney’s acquisition of Marvel. I’ve noted some big-picture comments in bracketed italics; I’ll spare you my many micro-level objections...
?Confidentiality? or ?Nondisclosure??
Posted on September 10, 2009Here’s a gripping issue: What should one call a contract requiring that certain information be kept confidential?confidentiality agreement or nondisclosure agreement? What nondisclosure agreement has going for it is the convenient and universally recognized initialism NDA...
New Edition of ?Garner?s Modern American Usage?
Posted on September 10, 2009I noticed that a third edition of Garner’s Modern American Usage has been published. I’ll be purchasing a copy, as GMAU has been the first thing I turn to when looking for guidance on general English usage. Would GMAU be of any use to contract drafters? The language of contracts is limited and stylized?it’s analogous to computer [...
If You Don?t Feel Challenged, You?re Not Paying Attention
Posted on September 09, 2009I was pleased to receive the other day the following wry email: You?ve inspired me since your presentation to our firm back in May. I used to be content with my drafting before I met you, but I now live in constant internal turmoil. My correspondent’s state of mind comes as no surprise...
More on ?Relating To? (Wherein Adams Eats Some Crow)
Posted on September 08, 2009In my post on the AAA standard arbitration clause, I reiterated my doubts about the relating to part of arising out of or relating to. Here’s what MSCD 12.10 says on the subject: In arising out of [or] relating to, the phrase arising out of might express a narrower meaning that does relating to...
A Reference Set of Definitions?
Posted on September 08, 2009While at a social event in Saratoga recently, I had the pleasure of meeting Jerry Kaplan, senior counsel in McDermott Will & Emery’s Chicago office. Ever the imaginative conversationalist, I turned the topic to?what else??contract drafting. At some point in our conversation Jerry wondered whether contracts wouldn’t be more efficient if drafters were able to refer [...
My Version of the AAA Standard Arbitration Clause
Posted on August 30, 2009Here’s the standard arbitration clause recommended by the American Arbitration Association, as stated in the AAA commercial arbitration rules (free registration required): Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on [...
An Instance of Formula Ambiguity
Posted on August 30, 2009No one has ever mentioned to me MSCD chapter 13 (Numbers and Formulas) or asked me any questions about it, so evidently the subject isn’t high on anyone’s list of concerns. But I have a soft spot for that chapter anyway?it discusses the fiendishly subtle forms of ambiguity that can arise in expressing formulas in [...
Referring to FedEx and its Competitors
Posted on August 27, 2009A standard way of giving notice under a contract is by overnight delivery by FedEx or one of its competitors. To articulate this notion, many drafters use the word courier, with varying degrees of specificity. For example, the phrase nationally recognized overnight courier occurs in 204 contracts filed on Edgar last month as Exhibit 10 material [...
?Including With Limitation??
Posted on August 27, 2009Reader Jason recently posted the following comment to my April 2007 post on including without limitation: I just ran across an instance of including with limitation XXX. I couldn’t determine if with limitation meant: only; that XXX is included, but with limitations on what parts of XXX are included; or things that are limited, and XXX is one example of [...
When to Provide for Indemnification
Posted on August 27, 2009Now that my summer is officially over … I suspect that many drafters think that an indemnification section should appear in contracts as a matter of course, much like a governing-law provision. But before you include an indemnification section, consider the pros and cons...
Defining ?Government Body?
Posted on August 20, 2009I interrupt my August recess to consult you all on how I should define “Government Body”. Here’s what I’ve come up with: ?Government Body? means (1) the government of any nation or of any political subdivision of any nation, (2) any official or instrumentality of any such government (including any court), (3) any other person or [...
If You?ve Watched the Webcasts and Are Contemplating Attending a Seminar
Posted on July 24, 2009If you’ve watched my webcasts and are contemplating attending one of my live seminars, you might want to read the following: The seminars cover the same topics as the webcasts?that’s why the seminars and webcasts will, by 2010, share the same title, “Drafting Clearer Contracts...
Thinking of Adopting a House Style for Contract Drafting? Here?s How I?d Do It
Posted on July 24, 2009I’ve recently been emphasizing, in print and in speaking engagements, that for any organization that wants to gain control of the drafting process, a necessary first step is to adopt a house style for contract drafting. (I know of three law firms that are currently working on adopting a house style...
Webcast 7: It?s on Automating the Contract Process, and It?s Free
Posted on July 20, 2009Webcast 7 in my Drafting Clearer Contracts series of webcasts will be launched with a live session starting 1:00 p.m. EDT on Wednesday, July 22. (”Live” means that panel members will be on hand to reply, by email, to questions submitted in writing during the session...
?Contractual?
Posted on July 18, 2009I can’t recall ever having used the adjective contractual, meaning “of, pertaining to, or secured by a contract.” I find it an awkward mouthful. As a general matter, I’d rather simply use contract, as in contract terms and contract obligations rather than contractual terms and contractual obligations...
Lawyers Weekly Article About Adams and Commodification of Contract Drafting
Posted on July 14, 2009The current issue of The Lawyers Weekly, the Canadian periodical, contains a nifty article on how to make contract drafting a commodity. Yours truly is featured prominently. Click here for the first page of a pdf copy and click here for the second page...
Webcast 6: My Conversation with Bryn Vaaler
Posted on July 12, 2009Excuse me if I mention another upcoming webcast, the sixth in my Drafting Clearer Contracts series. It runs for the first time as a “live” webcast on Tuesday, July 14, starting at 1:00 p.m. EDT. Thereafter it will be available on demand. This webcast consists of my conversation with Bryn Vaaler, longtime partner at Dorsey & [...
Yet Another Instance of Semantic Ambiguity: ?Salary?
Posted on July 12, 2009The case of Citgo Petroleum Corp. v. Ranger Enters., 2009 U.S. Dist. LEXIS 58676 (Conn. Mar. 17, 2009), revolved around whether, as used in the context of a separation agreement, the word salary included bonuses. A careful drafter would want to avoid any confusion on that score...
Making a Release Automatic
Posted on July 12, 2009A court opinion doesn’t have to come from an exalted court in order for it to raise an issue of interest to drafters generally. A case in point is Managment Strategies v. Hous. Auth. of New Haven, 2009 Conn. Super. LEXIS 1550 (Conn. Super. Ct. June 2, 2009)...
Wal-Mart Case Raises Issue of Categories of Contract Language
Posted on July 11, 2009D.C. Toedt has posted on his On Technology Contracts blog this item about an opinion of the Ninth Circuit Court of Appeals dismissing a case against Wal-Mart. Here’s D.C.’s summary: Wal-Mart requires its suppliers to agree to a code of conduct...
Another Instance of Semantic Ambiguity: ?Buys?
Posted on July 11, 2009In Comtide Holdings, LLC v. Booth Creek Mgmt. Corp., 2009 U.S. App. LEXIS 15086 (6th Cir. July 2, 2009), the following provision was at issue: CLOSING. Broker shall receive reasonable notice of closing. The BROKER’s fee referred to in Paragraph 4 above is payable in full to the BROKER only upon closing of the escrow/settlement account [...
Contract Interpretation and Contract Drafting
Posted on July 09, 2009Oxford University Press was kind enough to send me a review copy of their new book Elements of Contract Interpretation, by Steven J. Burton, a professor at the University of Iowa College of Law. I’m now going to repay them for their generosity by observing that I’m having a hard time getting into it...
My Response to Someone Seeking Advice on Contract Drafting
Posted on July 09, 2009Today I came across a blog post entitled, straightforwardly enough, “Looking for Advice on Contract Drafting.” It was posted on the Marquette University Law School faculty blog and was written by a part-time student by the name of Tiffany...
Any Webcast Feedback?
Posted on July 08, 2009Today sees the launch of webcast 5 in my series Drafting Clearer Contracts, which is being offered by West LegalEdcenter and is sponsored by Business Integrity. Webcast 5 will run as a “live” webcast starting at 1:00 p.m. EDT, meaning that I’ll be on hand to respond in writing to any questions submitted...
Contract Interpretation and Contract Drafting
Posted on July 08, 2009Oxford University Press was kind enough to send me a review copy of their new book Elements of Contract Interpretation, by Steven J. Burton, a professor at the University of Iowa College of Law. I’m now going to repay them for their generosity by observing that I’m having a hard time getting into it...
Response to a Young Traditionalist
Posted on July 01, 2009Hot 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...
Contract Drafting as a “Niche” Subject
Posted on July 01, 2009Twitter 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 [...
Contract Drafting as a ?Niche? Subject
Posted on July 01, 2009Twitter 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 [...
Training Your “Apprentices” in Contract Drafting
Posted on June 30, 2009You 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 [...
“Because” and Causation Issues in Contracts
Posted on June 30, 2009Thanks 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 [...
?Because? and Causation Issues in Contracts
Posted on June 30, 2009Thanks 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 [...
Training Your ?Apprentices? in Contract Drafting
Posted on June 29, 2009You 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 [...
“Forthwith”-A Quaint Archaism
Posted on June 28, 2009Methinks 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 [...
?Forthwith??A Quaint Archaism
Posted on June 28, 2009Methinks 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 [...
A Contract-Language French-English “False Friend”
Posted on June 24, 2009In 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 [...
Enforceability of “Time Is of the Essence” Provisions in Civil-Law Jurisdictions
Posted on June 24, 2009At 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 [...
“Obligate” v. “Oblige”
Posted on June 24, 2009In 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...
Questionable Defense of the Month: “I Signed the Contract in the Wrong Place”
Posted on June 24, 2009Today 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...
Questionable Defense of the Month: ?I Signed the Contract in the Wrong Place?
Posted on June 24, 2009Today 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...
?Obligate? v. ?Oblige?
Posted on June 24, 2009In 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...
A Contract-Language French-English ?False Friend?
Posted on June 23, 2009In 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 [...
Enforceability of ?Time Is of the Essence? Provisions in Civil-Law Jurisdictions
Posted on June 23, 2009At 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 [...
Having Your Contracts Drafted Offshore-Do You Really Want to Do That?
Posted on June 18, 2009I’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...
“Represents, Warrants, Covenants and Agrees”
Posted on June 18, 2009I 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...
Drawloop-Automation of Routine Sales Contracts
Posted on June 16, 2009It 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...
Expert Testimony and Ambiguity
Posted on June 16, 2009Recently 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...
Part 1 of the “Drafting Clearer Contracts” Webcast Series Launched
Posted on June 12, 2009Yesterday 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...
Apostrophe in “Shareholders Agreement”?
Posted on June 12, 2009I’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...
Addresses That Aren’t So Dependable
Posted on June 12, 2009In 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...
Is Uncertainty Over the Meaning of “Occurrence” Susceptible to a Drafting Solution?
Posted on June 11, 2009Can 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...
The Construction Specifications Institute and Use of the Imperative Mood in Architectural Specifications
Posted on June 10, 2009I’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...
Two PowerPoint-Related Technologies Behind My Webcasts
Posted on June 05, 2009Each 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...
A Recent English Commercial-Law Decision on Waiver Language
Posted on June 05, 2009This 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...
“Remediate” v. “Remedy”
Posted on June 03, 2009In 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. But 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...
“is there anything more boring than drafting a contract?”
Posted on June 02, 2009For 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 [...
A Texas Court’s Take on Syntactic Ambiguity
Posted on June 01, 2009Reader 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...
Lame Definitions-Inviting Reader Submissions!
Posted on June 01, 2009In 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...
Signing Up for My Webcasts
Posted on June 01, 2009After I announced my new “Drafting Clearer Contracts” series of webcasts with West LegalEdcenter, some of you told me you were unclear about some aspects of how you go about registering. I realized that I was, too. So here's the scoop: Individuals can register and pay the US$99 price using a credit card...
My “Drafting Clearer Contracts” Webcasts with West LegalEdcenter; Sponsorship by Business Integrity
Posted on May 27, 2009I’m pleased to announce that starting June 11, I’ll be offering through West LegalEdcenter a series of seven webcasts entitled “Drafting Clearer Contracts.” Go here for details about the first webcast, “The Front and Back of the Contract...
Playing Games With the Date Next to the Signature
Posted on May 22, 2009Having 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...
The Meaning of “Draft”
Posted on May 22, 2009How 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 [...
Perspectives: Chris Rowley of Vinson & Elkins
Posted on May 18, 2009The 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...
Keep This Stuff Out of Your Contracts
Posted on May 18, 2009Black-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 can cannot covenant of any kind hereinafter referred to as including but not limited to including without limitation in consideration of [...
Why No Contract-Process Value Challenge?
Posted on May 14, 2009Legal 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...
Vancouver Seminar on May 28
Posted on May 13, 2009On 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...
Using “States” Instead of “Represents and Warrants”
Posted on May 13, 2009In 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...
Revisiting “Indemnify and Hold Harmless”
Posted on May 11, 2009In 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...
Redundancy in Governing-Law Provisions
Posted on May 11, 2009A 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): This agreement is governed by, and is to be interpreted, construed and [...
When a Written Contract Is Preceded by Oral Agreement
Posted on May 07, 2009It’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...
Revising a Contract After It Has Been Signed
Posted on May 02, 2009At 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 [...
“Executed as a Deed”
Posted on May 02, 2009While 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...
“Deed”
Posted on May 02, 2009MSCD 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 [...
On Seeing an Ambiguous “Or” in a Toronto Handwashing Notice
Posted on May 02, 2009While 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 [...
The Conspicuousness Requirement of Texas’s “Express Negligence” Rule
Posted on April 28, 2009I 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...
Fall 2009 Penn Law Contract-Redrafting Project-Now Accepting Submissions!
Posted on April 28, 2009My 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 U.S. News Rankings of Legal Writing Programs: How They Relate to Teaching Contract Drafting
Posted on April 27, 2009What 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...
The WSGR Term Sheet Generator: The Inexorable Creep of Document Assembly
Posted on April 23, 2009Regular 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...
The Historical Roots of Redundant Synonyms
Posted on April 23, 2009On 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 [...
Having Two People Sign for One Party
Posted on April 23, 2009In 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 [...
“Signatory”
Posted on April 23, 2009The 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...
“I Have Authority to Bind the Corporation”
Posted on April 23, 2009Here’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...
Bringing Change to Contract Drafting: A Conversation Between Ken Adams and Ron Friedmann
Posted on April 23, 2009I’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...
Calling Out Around the World: Adams Rolls Out Custom Contract-Drafting Webinars
Posted on April 23, 2009Today 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...
Latinisms in Contracts
Posted on April 23, 2009In the current edition of New York magazine, someone agitating about Facebook’s new terms of service is quoted as saying “No Latin! I’m not sure what forum non conveniens means, and I shouldn’t have to [know].” As a general principle, No Latin! makes sense to me...
“In Each Case” and Disambiguation
Posted on April 23, 2009A chapter of MSCD is devoted to syntactic ambiguity, in other words uncertainty over which part of a sentence a given word or phrase modifies. One source of syntactic ambiguity is closing modifiers. MSCD discusses how to avoid ambiguity caused by closing modifiers, but it doesn’t discuss in each case (or the wordier in each [...
Providing for Notice by Email (Including Information About RPost)
Posted on April 23, 2009Not satisfied with having prompted my recent foray into fax terminology, reader David Baghdassarian posted to that item the following comment on providing for notice by email: As for email notices, the problem I have is that there is too much room for an email to inadvertently be deleted or overlooked, email server to crash, email [...
Adams Featured in Article in Financial Times
Posted on March 25, 2009Click here to go to it. (You may need to register, without charge.) This is the first time I’ve gotten any real coverage outside of legal periodicals. I hope it’s a sign of increasing interest in clearer contracts in general and my approach in particular...
Automating Template Creation and Document Benchmarking: Q&A with Kingsley Martin, CEO of KIIAC
Posted on March 24, 2009Through the contract-automation grapevine I heard about Kingsley Martin, president of KIIAC LLC, a company using proprietary software to help customers analyze contract models. Kingsley was kind enough to speak with me about KIIAC and show me how the software works...
Speaking at DELVACCA Conference
Posted on March 24, 2009On April 1 I’ll be in Philadelphia, speaking at the first conference for in-house counsel organized by DELVACCA, the Delaware Valley chapter of the Association for Corporate Counsel. Some three hundred in-house lawyers are expected to attend this all-day CLE event, but it’s almost sold out, so you’ll have to be quick if you want [...
Contract Lifecycle Management: A Q&A with Harry Angel of Symfact
Posted on March 23, 2009I’ve written before about contract-lifecycle-management (CLM) software. (Click here for some general thoughts on CLM; the ACC Docket article I co-authored also discusses CLM.) I’m pleased that this post allows me to revisit the topic. During a trip to Switzerland a couple of years ago I met Chris Craddock, the marketing director of Symfact, an increasingly [...
Lexical Ambiguity: What Does ?Offshore? Mean?
Posted on March 20, 2009Jones v. Francis Drilling Fluids, 2009 U.S. Dist. LEXIS 21388 (Mar. 17, 2008 S.D. Tex.), concerns a worker injured while working on a floating drill barge rig located in inland waters. He had been working for Francis Drilling, which had been working as a contractor for ADTI under a master services agreement (MSA)...
Using and Defining ?Subsidiary?
Posted on March 20, 2009I was prompted to consider the word subsidiary when I realized that it’s not necessarily clear what kind of entities can be a subsidiary. And I stuck around to consider how one might define subsidiary. What Kind of Entities? The main problem with subsidiary is that it can create confusion regarding what kind of entities can be [...
Use of ?Spouse? in Business Contracts
Posted on March 19, 2009Reader Jonathan Handel?he of the Digital Media Law Blog?sent me the following interesting inquiry: I’m wondering if you have any thoughts in regards to a gay rights issue related to drafting various corporate documents. This question may be on the edge as to whether it’s a drafting issue or a substantive one, but I figured I’d [...
Right and Wrong in Drafting Usages
Posted on March 17, 2009Someone who does a lot of presentations to law firms recommended to me that when I field comments from the audience, I should avoid suggesting that I’m right and the speaker is wrong. I understand his point; after all, the customer is, in a larger sense, always right...
Businesspeople as Drafters and Reviewers of Contracts
Posted on March 17, 2009I recently leafed through Business Contracts: Turn Any Business Contract to Your Advantage (Entrepreneur Press 2007). The publisher was kind enough to send me a review copy. It’s by Laura Plimpton, a lawyer. As the title suggests, it aims to help businesspeople get to grips with contracts...
?Latent Ambiguity? Is a Confusing Concept
Posted on March 16, 2009This post isn’t intended for drafters so much as judges and litigators. In a recent bankruptcy case, In re IdleAire Technologies Corp., 2009 Bankr. LEXIS 343 (Bankr. D. Del. Feb. 18, 2009), the court had the following to say about “latent ambiguity”: The plain language of an insurance policy, however, can also be ambiguous, even when there [...
Presenting Contract Text in Full and in Bullet Points
Posted on March 16, 2009Longtime reader D.C. Toedt pointed out to me this post on The Consumerist. It applauds the terms of use of a company called Aviary, in that it offers, in bullet points set out to the right of the full version of the terms of use, a plain-English summary of the provisions...
Some MSCD Testimonials
Posted on March 14, 2009I’ve belatedly updated the testimonials on the MSCD page of this site. To spare you having to click on the link, I’ve copied the testimonials below. I thank all those who were kind enough to provide testimonials. I have a particular soft spot for the one that potential MSCD readers are least likely to pay [...
Verb Use in the Introductory Clause
Posted on March 14, 2009Yesterday I got a call from a reader inquiring about verb use in my recommended form of introductory clause. I love that kind of inquiry. More specifically, he pointed to the introductory clause in MSCD sample 1. It begins as follows: This asset purchase agreement is dated May 3, 2008, and is between … He wondered [...
?Best Efforts? Under Canadian Law
Posted on March 09, 2009In connection with one of my Calgary seminars, someone suggest that my treatment of best efforts doesn’t apply in Canada. I thought I should address that, because if my analysis doesn’t work for Canada, it doesn’t work anywhere. Chapter 7 of MSCD contains my analysis of efforts provisions, and I’ve also done a good number of [...
How Not to State the Deadline for Submitting a Bid or Taking Any Other Contract Action
Posted on March 09, 2009A few weeks ago, while driving my daughter Sydney somewhere in Garden City, I laid the following observation on her: If you have to take some action at a specified time, you’re likely going to be early or late, to a lesser or greater extent. That’s because any given time of day isn’t a period [...
More on ?Time Is of the Essence?
Posted on March 09, 2009Drafters use the phrase time is of the essence to indicate that failure to meet a contract deadline constitutes grounds for termination. But as I explain in MSCD 12.394?403 and in this May 2006 blog post, saying Time is of the essence for purposes of this agreement is problematic, in that such provisions suggest that [...
Notes on a Week in Calgary
Posted on March 09, 2009I’m at the tail end of a productive week spent in Calgary. Last Thursday I gave a seminar for Petro-Canada and its outside counsel, Fraser Milner Casgrain. On Friday I gave a lunchtime presentation for the Canadian Bar Association Alberta. And today, I gave a seminar for the law department of Enbridge Pipelines...
Law, the Working Life, and Innovation
Posted on February 24, 2009Recently I’ve enjoyed reading some thoughtful posts offering different takes on the working life in law?how to make it more meaningful, or at least how to survive. In particular, I’m thinking of Vickie Pynchon’s posts tracking how she picked herself up and dusted herself off after being laid off in 1992; click here for the [...
The Coin Toss in Dealmaking
Posted on February 21, 2009I recently encountered a contract that had the parties making a decision by coin toss. That prompted me to scour the SEC’s EDGAR system looking for contracts that feature a coin toss, otherwise known as a coin flip. I found contracts that used a coin toss to accomplish the following: To determine who goes first when [...
A New Term Is Born??Backending?
Posted on February 20, 2009In MSCD 3.57, I use the term “frontloading” for the process of pulling select information out of the body of the contract and placing it at the top of the contract. In MSCD 3.63 I acknowledge that instead of frontloading information, you could put it in a schedule...
My NYLJ Article on Retooling Your Contract Process for the Downturn
Posted on February 18, 2009The New York Law Journal has published, in its “GC New York” section, my article entitled “Retooling Your Contract Process for the Downturn.” Click here to go to the online version (free registration required). (By the end of the day Friday I’ll be adding a link to a PDF reprint...
?Shall??Once More Unto the Breach
Posted on February 17, 2009I’ve learned that Twitter can serve as an early-warning system. Thanks to a Twitter update by Lance Goddard?he of the blog Are You Writing This Down?I learned that Jay Shepherd had posted on his blog The Client Revolution this item recommending that one run a mile from shall...
Free Time in Houston on Feb. 25
Posted on February 16, 2009On Wednesday, February 25, I’ll be in Houston, cooling my heels between seminars. If you’re in the Houston area and you’d like to meet with me to discuss what I do and whether I might be able to assist your organization, don’t hesitate to contact me.
?In Accordance With? and ?According To?
Posted on February 14, 2009Reader Doug asked me about the difference, if any, between in accordance with and according to. Garner’s Modern American Usage says that according to means (1) “depending on”; (2) “as explained or reported by (a person)”; or (3) “in accordance with...
What Businesspeople Think of Contract Language
Posted on February 12, 2009I’m at Tremblant, the Quebec ski resort, at the invitation of the Canadian Healthcare Licensing Association. I just finished giving a short version of my “Language and Layout” seminar to sixty business-development people from Canadian pharmaceuticals companies...
The Lilly Ledbetter Fair Pay Act and Syntactic Ambiguity?A Cautionary Tale
Posted on February 12, 2009Reader Kazu brought to my attention the following language from the recently enacted Lilly Ledbetter Fair Pay Act (emphasis added): For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject [...
Contracts as a Relationship-Building Tool
Posted on February 09, 2009Some people regard the contract process as an adversarial one. I encountered a great example of that recently: someone I’ve been corresponding with used the word “opponent” in referring to a lawyer representing the other side in a deal...
Using ?Any? to Tame ?And?
Posted on February 06, 2009Here’s a case of modest interest to you fans of and and or: County of Du Page v. Ill. Labor Rels. Bd., No. 105395, 2008 Ill. LEXIS 1835 (Ill. Dec. 18, 2008). It involves statutory construction, but the principles at issue apply equally to contracts...
Lexical Ambiguity: A New Case for Fans of Frigaliment
Posted on February 05, 2009While at LegalTech on Tuesday, I picked up a free copy of the New York Law Journal, just for the sheer novelty of reading it in newsprint. One item that caught my eye was an account of WebMD LLC v. RDA International Inc., No. 102830/08, 2009 WL 175036 (N...
Revising Your Contracts to Reflect Changed Circumstances
Posted on February 04, 2009Reader Melvin told me about this item on Lexology by Jeffrey P. Drummond of Jackson Walker LLP. It’s about how the Third Circuit Court of Appeals reversed the lower court in a qui tam action brought by a doctor against a hospital under the False Claims Act...
When the Parties Know That an Obligation Can?t Be Performed
Posted on February 04, 2009Included in the extensive comments to my recent post “Language Requiring Deletion of Electronic Files” is a comment by Michael Fleming to the effect that it’s appropriate to impose on a party receiving confidential information an obligation to destroy all electronic versions of that information, regardless of whether that’s in fact possible to do...
New 2009 Seminar Dates (Including Some Testimonials)
Posted on January 31, 2009I’ll soon be resuming my itinerant ways. In particular, my first public seminar of 2009 is on February 24, in Houston. And 2009 just got busier, as I’ve added some new “Contract Drafting?Language and Layout” public seminar dates, namely U...
Adopting a House Style for Contract Drafting
Posted on January 29, 2009To accomplish any given drafting goal, one usage will be more efficient than the others. Once you accept that notion, it follows that it would make sense for drafters to join other writers in using a manual of style. That’s why I wrote A Manual of Style for Contract Drafting...
Drafting by Committee? Not So Good
Posted on January 28, 2009Today Rees Morrision posted this item on his blog. It makes the point that groups are good for sharing information but not so good for making decisions. It also quotes an academic as saying that “Groups are not helpful in getting people to make better decisions, but they?re helpful in getting people to feel more [...
More on Prospects for Change: Getting Outside Counsel to Cooperate
Posted on January 27, 2009This post earlier this month considered how to ensure that people on the other side of a deal don’t balk at MSCD-compliant language. But what if it’s your outside counsel that’s not playing along? In this post from last weekend I said that company law departments are best positioned to drive change, in that they?re the [...
Follow this Blog on Twitter
Posted on January 25, 2009In this post from earlier this month, I expressed incredulity at the idea of my being able to make good use of Twitter?what I do doesn’t come in installments of no more than 140 characters. But following up on a suggestion by commenter Jonathan Handel, I’ve arranged matters so that every time I post on the [...
Prospects for Change
Posted on January 24, 2009A couple of recent posts (this one and this one) prompted some gnashing of teeth and rending of clothes by commenters frustrated at the pushback they encounter when they use clear, efficient, and modern contract language. So I thought it might be worthwhile for me to elaborate on something I offered in this comment...
With Free Online Forms, You Get What You Pay For
Posted on January 21, 2009Rees Morrison, prolific blogger on all things law-department-related, posted this item about free legal forms available online. Here’s what it says: As the online world inexorably proves that information wants to be free, in-house counsel will increasingly have more forms of agreements available online, and at no cost...
Numbering or Lettering Schedules and Exhibits: A Proposal
Posted on January 21, 2009Here’s the approach that’s reflected in MSCD: If you could accomplish any given drafting goal in a number of different ways, consistency and efficiency would be enhanced if you, and everyone else, were to choose, and stick with, just one of the ways...
The Different Ways of Signing Legal Documents Electronically
Posted on January 21, 2009Thanks to Bryan Sims of The Connected Lawyer, I came across (1) this useful post by TechnoEsq on the different ways of signing legal documents electronically and (2) this post by Ernie Svenson, wearing his PDF for Lawyers hat, on one of those ways of signing, namely using digital signatures...
?As Well As?
Posted on January 20, 2009In this October 2008 blog post I said that together with is usually a roundabout way of saying, depending on the circumstances, and or with or plus. Well, it just crossed my mind that a related usage is as well as?you should be able to use and instead...
Does One ?Enter Into? or ?Enter? a Contract?
Posted on January 19, 2009The following is from reader Tom Hertz: Based on MSCD, I gather that you’d say that parties enter into an agreement, rather than simply enter it. (See, for example, MSCD 2.21 and 8.18.) The former usage is certainly common and, just as certainly, redundant...
Language Requiring Deletion of Electronic Files
Posted on January 16, 2009I received the following inquiry from Sarita Nair of the New Mexico law firm Sutin, Thayer & Browne: I am struggling to find a concise way to limit an obligation to delete electronic records. As you know, many contracts and letters of intent contain an obligation to destroy documents if a commercial relationship ends...
When Cultures Clash in Contract Drafting
Posted on January 14, 2009David Miller is general counsel of Rogers Communications, the Canadian communications company. I met him in 2007 when, shortly after helping them out in the Canadian comma dispute, I was invited to give a day-long seminar at Rogers. That seminar contributed to my love affair with Canada, as David attended the entire seminar...
Mulling Over Feedback from a Law-Firm In-House Seminar
Posted on January 14, 2009I used to be reticent about asking for feedback after giving an in-house seminar?heaven forbid that I should be a nuisance! But I now make a point of asking for such feedback. I’m acutely aware that my seminars are a mixture of bad news (Everything you know is wrong!) and good news (Here’s how to [...
MSCD Second Edition Now Available on Amazon
Posted on January 13, 2009The first few months after the ABA publishes a book, you can purchase it only through them. Thereafter, they start to distribute it through the usual online sellers. Consistent with that, the second edition of A Manual of Style for Contract Drafting is now available on Amazon; click here to go to the Amazon page [...
The Forthright Negotiator Principle and Creative Ambiguity
Posted on January 13, 2009In this December 2007 post I wrote about the Delaware Chancery Court opinion in the litigation between United Rentals Inc. and two Cerberus Partners acquisition vehicles. But I wasn’t so much interested in the opinion as in what had caused the confusion and how it could have been avoided, so I didn’t even mention the [...
Using the ABA?s Deal Points Studies
Posted on January 13, 2009One of the more useful perks of being a member of the American Bar Association is that you get access to the “Deal Points Studies” prepared by the Section of Business Law’s Committee on Mergers and Acquisitions. There are various Deal Points Studies; I’ve recently consulted the 2008 Strategic Buyer/Public Target M&A Deal Points Study and [...
What to Do When the Other Side Wants to Change Your MSCD-Compliant Language
Posted on January 06, 2009Longtime reader Michael Fleming sent me the following cry of pain: Below is a little taste of a markup I received from the other side of a deal I’m working on: MASTER SERVICES AGREEMENT This Mmaster Sservices Aagreement (”Agreement”) is dated ________, 20__ (the “Effective Date”) and is between FLEMING’S CLIENT, INC...
Which Come First, Schedules or Exhibits?
Posted on January 06, 2009When you assemble the components of a contract that refers to schedules and exhibits, which should come first after the main part of the contract? The schedules or the exhibits? Thanks to a reader inquiry, I’ve now considered that gripping question for the first time...
I Won?t Be Using Twitter Any Time Soon
Posted on January 06, 2009You may have heard of Twitter. It’s a free social-networking service that allows users to send updates and read other users’ updates. Updates are text-based posts of up to 140 characters in length; they’re commonly referred to as “tweets...
Proofreading Tips?
Posted on January 06, 2009I recently received the following inquiry from reader Kathleen: I was wondering, do you have a proofreading system or any tips? Especially for when there is quick turn-around and I don’t have time to let a document sit to come back with fresh eyes (and I don’t have access to someone who can proofread for me)...
Using Parentheses Instead of ?Respectively?
Posted on January 06, 2009In MSCD 12.328, I say that respectively serves to indicate that each item in a list earlier in a sentence is to be paired with its counterpart in a list that follows and contains an equal number of items, as in The first and second prizes went to Marie and Frank, respectively...
Seminar Discount for Members of the ABA Section of Business Law
Posted on December 10, 2008If you’ve come here through the link in this month’s Section of Business Law eSource, welcome! While you’re here, let me tell you about a discount that I’ve arranged for section members. I give with West Legalworks a public version of my “Contract Drafting?Language and Layout” seminar; click here for information about the seminars scheduled for the [...
In San Francisco on Wednesday, December 10, With Some Free Time
Posted on December 06, 2008On Tuesday, December 9, I’ll be in San Francisco to give my “Language and Layout” seminar for West Legalworks. I’ll be taking the red-eye home on Wednesday, and I’ll have some time free during the day. So if your company or law firm is based in the bay area and you’d like to shoot the [...
?The Vendor? or ?Vendor??A Practical Consideration
Posted on December 06, 2008During our conference call about the 2008 Penn Law redrafting project (see this blog post), the company lawyers noted that I had elected to refer to the other party as the Vendor rather than simply as Vendor. I explained that I prefer using the definite article, as it results in prose that’s slightly less stilted (see [...
Magic Words
Posted on December 06, 2008If often find myself alluding to the “magic words” approach to drafting. Here’s what I mean: You’re using magic words when you don’t clearly articulate in a contract a given concept but instead use legalese to grope at the intended meaning, in the hope that custom, or the courts, will fill in any gaps...
?Indemnitor? and ?Indemnitee?
Posted on December 04, 2008In an exchange of emails this evening, my correspondent inadvertently used “indemnitor” when he meant “indemnitee.” It’s in order to avoid just such confusion that I recommend in MSCD 1.72 that you not use as defined terms for party names any paired defined terms that differ only in their final syllable, such as Mortgagor and Mortgagee...
Report on the 2008 Penn Law Redrafting Project
Posted on December 04, 2008As one of the assignments in my Penn Law contract-drafting course, this semester I once again asked my students to redraft part of a contract currently being used by a company. This time, I selected a template master services agreement submitted by a Fortune 500 company in response to this May 2008 post...
Enumerated Clauses?When the Trunk Is Too Short for the Branch
Posted on November 30, 2008It’s generally a bad sign when, barely after it begins, a sentence shifts into a set of enumerated clauses: If (1) A, (2), B, or (3) C, then X. Acme shall (1) A, (2) B, and (3) C. In such sentences, the drafter is forcing the reader to make a connection between each enumerated clause and the stub [...
Don?t Use ?Immediately? for Things that Happen Automatically
Posted on November 30, 2008MSCD 12.258?277 discusses the distinction?or not?between immediately and promptly. Here’s another aspect of immediately?it’s often misused in connection with stuff that happens automatically. Consider the following provision: This agreement will terminate immediately upon Acme?s giving Widgetco notice of termination...
In-House Seminars in London, January 2009?
Posted on November 28, 2008After a long absence, I’ll be in London over the holidays, visiting family and giving my daughter a brief introduction to the land where I spent fifteen years before sloping off to law school in the U.S. I had planned on returning to the U.S. early in January, but I find myself discussing with clients the [...
Ambiguity in Specifying the Time of Day
Posted on November 26, 2008Reader Matthew pointed out to me an ambiguity I hadn’t thought of. Here’s the language at issue: If the Escrow Agent receives from the Seller a Counter Notice before 2:00 p.m. on the date that is 20 Business Days after the Escrow Agent received the corresponding Claim Notice, the Claim must be resolved in accordance with section [...
Details of 2009 Seminar Dates Now Online
Posted on November 25, 2008I’ve updated the public seminars page with information about the U.S. “Language and Layout” seminars I’ll be giving with West Legalworks in the first half of 2009. In the next few days I’ll update the West Legalworks banner links with the same information.
Defined Terms for the Components of a Transaction
Posted on November 23, 2008I’ve been urging my Penn Law students to curb their tendency to create more defined terms than a given contract requires. That led to one of my students sending me the following message regarding our final assignment, the Penn Law redrafting project: Dear Professor Adams, I just took a look at your version of assignment 5...
More on Using Words and Numerals to Express Numbers
Posted on November 23, 2008Most drafters use words and numerals to express numbers?as in no later than thirty (30) days after Acme delivers a Termination Notice. Numerals are easier to read than words but are more prone to typographic errors, so using both affords the immediacy of numerals while providing insurance against a transposed decimal point or an extra or [...
Choosing Among Alternative Categories of Contract Language
Posted on November 19, 2008When in my “Language & Layout” seminars we discuss categories of contract language, I emphasize that in addressing a given issue one sometimes has a choice as to which category of contract language to use, but that one will work better than any other...
?Shall? Versus ?Will? in Business Contracts?An Exchange of Emails
Posted on November 18, 2008I’ve previously written in this blog about why I recommend that one use shall in a disciplined manner rather than throw it under a bus. Discussion of this topic features prominently in chapter 2 of MSCD, as well as in my October 2007 NYLJ article...
Thoughts on PLI?s Drafting Program
Posted on November 11, 2008In a recent email exchange, a corporate partner at one of the big law firms told me that he wasn?t sure how my “Language and Layout” seminar differs from the Practicing Law Institute’s day-long program on contract drafting. So when last week a flyer for that program?”Drafting Corporate Agreements 2009“?arrived in the mail, I made [...
Nicknames for Contract Provisions
Posted on November 11, 2008Thinking about materiality-scrape provisions had me pondering idly what other contract provisions are known by nicknames. Only three came to mind?ipso facto clauses, anti-sandbagging provisions, and “garden leave” clauses. A lame effort by yours truly...
The Structure of M&A Contracts?Materiality-Scrape Provisions
Posted on November 11, 2008Wearing my “structure of M&A contracts” hat, this week I revisited a relatively recent addition to indemnification provisions in acquisition agreements?the “materiality scrape” provision. (What a charming moniker?it brings to mind scraping muck off the sole of one’s shoe...
Adams ABA-Panel Doubleheader
Posted on November 11, 2008Later this month I’ll be on two ABA panels on consecutive days. First, I’ll be on the panel for a November 20 ABA-CLE webcast entitled “Getting the Business Deal into the Contract.” It’s an encore performance of a panel discussion held at the ABA’s 2008 annual meeting...
Drafting Guru, Anyone?
Posted on November 07, 2008With publication of the second edition of A Manual of Style for Contract Drafting, I’ve been taking stock. I roam the land giving public and in-house seminars. I teach at a great law school. And I get to explore and write pioneering stuff about a vital yet problematic activity?contract drafting...
?Asserts??Revisiting ?Represents and Warrants? Once More
Posted on November 03, 2008Longtime readers of this blog will be aware of my hostility towards the phrase represents and warrants (and representations and warranties). Over the weekend I was reminded that I don?t include in the MSCD discussion (starting at 12.285) a point I make in my seminars...
?I Don?t Always Agree With You ??
Posted on November 03, 2008Every so often someone says to me, in connection with MSCD, “I don?t always agree with you.” My ears prick up when I hear that. It suggests to me three possibilities: The speaker has spotted flaws in my analysis. The speaker misguidedly regards contract drafting as a craft, with the drafter being free to select at will [...
?Can? and ?Cannot?
Posted on November 03, 2008If you’ve perused chapter 2 of MSCD (Categories of Contract Language), you’re aware that I have a mania for disciplined use of verbs in contracts. But I haven’t previously had occasion to discuss use of can and cannot; I’ll do so now...
What Does One Do If a Signature Date Is Omitted?
Posted on November 01, 2008One topic we discuss at my “Language and Layout” seminars is when it’s appropriate to have signatories date their signatures, as opposed to relying on the date stated in the introductory clause. (This is discussed in MSCD at 1.16?21 and 4...
Seeking MSCD Testimonials
Posted on October 26, 2008Recently the public radio stations I listen to concluded their fall fund drives. I thought I’d attempt something analogous and repeat a previous request: The ABA is in the process of collecting testimonials (otherwise known as “blurbs”) for the second edition of A Manual of Style for Contract Drafting...
?Together With?
Posted on October 24, 2008Contract drafting is facilitated if you find the simplest way to articulate a given meaning and then stick with it. That applies to the small stuff, too. Take, for example, together with. Often you’re better off trading two longer words for one shorter one?and: “Hotel” means the Site together with [read and] the Buildings...
?Cohabitation??It?s Ambiguous
Posted on October 23, 2008Who knows what ambiguity lurks in the heart of contracts? Well, reader Steven Sholk has an inkling, because he’s the one who told me about Graev v. Graev, 2008 N.Y. LEXIS 3252 (N.Y. Oct. 21, 2008), a case that involves the meaning of the word cohabitation...
The Structure of M&A Contracts?When Are Representations Made?
Posted on October 21, 2008Over the course of the past few years I’ve been working sporadically on a shortish (16,000 words) manuscript entitled “The Structure of M&A Contracts.” It discusses the function of the different categories of provisions in an M&A contract (representations, pre-closing obligations, conditions, indemnification, and termination provisions), the interplay between those categories of provisions, and the [...
Recession?A Good Time or Bad Time for Overhauling Your Contract Process?
Posted on October 17, 2008In my writings and during my speaking engagements, I talk up the benefits of overhauling your contract process, templates and all. In the past few weeks, I’ve been wondering if given the current travails?whether you call it a recession or something else?I should adjust my recommendations...
Some MAC Thoughts on Hexion v. Huntsman
Posted on October 17, 2008Last June, Hexion Specialty Chemicals announced that it was walking from its $10.6 billion acquisition of Huntsman Corp. on the grounds that the capital structure for the combined entity was no longer viable and would render it insolvent. Hexion filed suit in Delaware, and on September 29, 2008, Vice Chancellor Lamb issued his opinion...
Law-Firm CLE as Client Development
Posted on October 16, 2008Yesterday I was at Dorsey & Whitney’s Minneapolis office. I gave my “Language and Layout” seminar there last year, but yesterday’s event was different. It was billed as “A Conversation with Ken Adams.” Bryn Vaaler?Dorsey’s professional-development partner?and I parked ourselves on the stage in Dorsey’s conference center and chatted for an hour about the world [...
Including ?And? or ?Or? in a Tabulated List
Posted on October 13, 2008For diehard fans of and and or?you know who you are!?the case of Harrity v. Target Corporation, Civ. No. 07-3958 (D. Minn. Oct. 6, 2008), might be of modest interest. The plaintiff was seeking reimbursement under Target’s medical insurance plan, but the court granted summary judgment...
?Default or Event of Default?
Posted on October 12, 2008A few months ago a reader asked me what I thought of the phrase default or event of default. Here, belatedly, is my answer, along with my thoughts on a related phrase, has occurred and is continuing: “Default or Event of Default” The phrase default or event of default is a fixture of loan agreements...
?Thereby? in Language of Performance?
Posted on October 02, 2008Another day, another unexpected contract usage. Today, I saw the following: Upon issuance of an oral or written work, service, or purchase order, Company thereby hires Contractor to promptly provide the products, materials, and supplies and perform the services set forth in the Order...
I?m Featured in the September 2008 YourABA
Posted on September 30, 2008The lead item in the September 2008 YourABA, the ABA’s e-newsletter for members, is a Q&A with yours truly. Click here to go to it. Regular readers of this blog will not be astonished at what I have to say.
?For Example?
Posted on September 30, 2008When in my seminars I discuss the phrase including without limitation, I’m sometimes asked what I think of for example. Here’s my answer: Don’t use for example in contracts to introduce lists of items, but by all means use it to introduce illustrative scenarios...
Seeking Your Input on MSCD?s Binding
Posted on September 30, 2008The second edition of A Manual of Style for Contract Drafting has been out for less than two months, and we’ve already sold almost all of the first printing. So the response has been positive, to say the least. But I’d appreciate your input on MSCD’s binding...
?Consecutive Months?
Posted on September 28, 2008I’m looking at a contract that contains the following provision: During the term of this agreement and the following 24 consecutive months, the Consultant shall not … In this context, the word consecutive is redundant, as it is in any period of six consecutive months...
The State of the Blog, Two Years On
Posted on June 02, 2008With age, birthdays become less important, so it shouldn’t come as a surprise that on the second anniversary of this blog (give or take a few days) I’m less inclined to wax lyrical than I was after the first anniversary. But a few stray thoughts come to mind: I pay little attention to my blog’s statistics...
?Such As?
Posted on June 02, 2008Such as is ambiguous?it might be unclear whether the clause it introduces serves to reduce the scope of the class represented by the preceding noun. This can result in contract disputes. Consider the following sentence: Richard collects books about painters such as Botticelli and Donatello...
Emory Law School Conference on Teaching Drafting and Transactional Skills
Posted on June 02, 2008This past Friday and Saturday I was in Atlanta, at Emory Law School’s conference on “Teaching Drafting and Transactional Skills: The Basics and Beyond.” (Click here to go to the relevant page of Emory Law School’s website.) The conference was organized by Tina Stark, an Emory professor and the executive director of the school’s new Center for [...
Appropriate Use of ?And/Or??
Posted on June 02, 2008In MSCD 8.55 I recommend that you steer clear of and/or unless using it would spare you some verbiage. Well, consider the following basis for terminating an employee for cause: the Employee is charged with any crime that (1) is punishable by a custodial penalty, instead of or in addition to any fine or other non-custodial [...
Using Parentheses in Contracts
Posted on June 02, 2008A couple of months ago, reader Kent asked me what I thought about using parentheses in contracts. Here, belatedly, is my answer: In regular prose, parentheses (namely round brackets, like those enclosing these words) are used to offset text that constitutes an explanation or aside...
The Duration of Confidentiality Agreements
Posted on May 21, 2008Reader David recently posed the following question: I have a question for you that has bugged me for several years. From time to time, my company shares company-related information with a third party and, before doing so, enters into a confidentiality agreement (CA) [also known as a nondisclosure agreement?KAA] with the third party...
?Continuance?
Posted on May 20, 2008Reader Steven Sholk sent me a case today. I found it of interest, but not for the reason he anticipated. What caught my eye was the phrase during continuance of this agreement. A search of the SEC’s EDGAR database showed that it’s not a complete rarity: it occurs in about 200 contracts filed in the past [...
Webcast on ?Contracts in the Technology Sector?
Posted on May 13, 2008I’m on the panel for a webcast on the topic of “Contracts in the Technology Sector.” It’s being hosted by West Legalworks; click here to go to relevant page of the West website. It’s being held on Friday, May 23, from noon to 1:00PM EDT...
A New Article on ?Best Efforts?
Posted on May 12, 2008Reader Larry Bell pointed out to me that the April 2008 issue of Corporate Counsel’s Quarterly contains an article by the publisher’s editorial staff entitled “Best Efforts Clauses.” I’m afraid that I can’t provide a link, as I have only a hard copy...
Overlapping Definitions?A Real Issue?
Posted on May 11, 2008I recently posted this item discussing Lexicon, a tool for organizing and checking defined terms. Lexicon’s website contains a page discussing “The Seven Deadly Sins of Defined Terms.” Among the sins described is the following: Overlapping Definitions–When one Defined Term is contained within another, confusion can arise...
Fall 2008 Penn Law Contract-Redrafting Project?Now Accepting Submissions!
Posted on May 08, 2008It’s that time again: I’m looking for a company that would be interested in taking part in a contract-redrafting project with my class at the University of Pennsylvania Law School. The idea is that I’ll select one contract out of those submitted by June 15...
Doing an Online Run-Through of My Seminars
Posted on May 08, 2008Considering having me do an in-house seminar but want to know more? Then I suggest you might want to have me give you and any other decisionmaker at your organization a run-through of whichever of my seminars interests you, “Contract Drafting?Language and Layout” or “The Structure of M&A Contracts...
Some Recently Published Books on Contract Drafting
Posted on May 08, 2008A few books on contract drafting have been published in the last couple of years: Butt, Peter & Castle, Richard, Modern Legal Drafting: A Guide to Using Clearer Language (2d ed. 2006). Darmstadter, Howard, Hereof, Thereof, and Everywhereof (2d ed...
MSCD2 Production Notes
Posted on May 08, 2008In case you’re interested, here’s the latest on MSCD2: 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...
Outage
Posted on May 08, 2008The site was offline for most of yesterday due to high drama involving my server. Sorry about that; it shouldn’t happen again.
Capitalization in References to U.S. States
Posted on May 04, 2008Listen up, drafters! Here’s what The Chicago Manual of Style 8.55 has to say about use of initial capitals in references to political divisions: 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...
New 2008 U.S. Seminar Dates
Posted on May 04, 2008Be still my beating heart! Here are the U.S. cities where I’ll be giving my “Contract Drafting?Language and Layout” seminar with West Legalworks in the second half of 2008: 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 I’ll soon be putting full details [...
More Words Not to Include in a Contract? ?Therefore? and Its Relatives
Posted on May 02, 2008In this November 2006 post I wrote about words that are fine in narrative writing but would be out of place in a contract. 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 [...
Rethinking Waiver Provisions
Posted on April 29, 2008Here’s a standard waiver provision: 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...
How to Introduce a Set of Autonomous Definitions
Posted on April 29, 2008I’m going over one of my contract redrafts. Here’s how I introduced a set of autonomous definitions: For purposes of this agreement, the following terms have the following meanings: You see this language, or some variation, in innumerable contracts...
More Signature-Automation Solutions
Posted on April 29, 2008In this May 2007 post I wrote about the signature-automation tool EchoSign. And my ACC Docket article with Brian Quinn mentions DocuSign. Well, there are other fish in that particular sea. I noticed that The Connected Lawyer?always a source of interesting information?recently posted about one of them, ConXPoint...
Waiver of the Statute of Limitations in ?Survival? Provisions
Posted on April 29, 2008In this July 2006 post I said that although it’s standard to refer to “survival” of representations, it’s unhelpful to do so. I quoted language that I find much clearer. Well, it would seem that both the traditional language and my preferred language were found wanting in a 2007 case applying California law that I saw [...
More on the Cerberus Litigation
Posted on April 28, 2008In February, the New York Law Journal published my article about the litigation between Cerberus and United Rentals. If you’re hungry for more on the subject, check out this article in the American Lawyer. I make a brief guest-appearance.
Last Call for Geneva
Posted on April 14, 2008On Friday I’ll be heading for Geneva, where I’ll be giving a series of public seminars from April 21 through April 25. Click here for more information. If you want to explore the language of contracts in the company of a few like-minded people, these seminars would provide an unmatched opportunity.
?Dated for Reference?
Posted on April 14, 2008I often come away from a seminar having learned something new. For example, a participant at my recent Vancouver seminar asked me what I thought of the phrase dated for reference, as used in the introductory clause. I confessed that I hadn?t previously encountered it...
When an Individual?s Address Doesn?t Work for Purposes of the Introductory Clause
Posted on April 14, 2008I don’t include in the introductory clause the address of a party that’s a legal entity. That’s because the introductory clause serves to distinguish a given party from any other person or entity with that name. For a legal entity, that’s accomplished by giving its jurisdiction of organization or its registration number; you don’t also [...
44 Hours in Bahrain
Posted on April 14, 2008I’m now home after a whirlwind visit to Bahrain. I arrived from Oman on Wednesday afternoon, did a seminar on Thursday, then left on Friday morning. The seminar was under the auspices of the ABA’s Rule of Law Initiative. My chaperones were James MacPherson and John Porter, who has just replaced James as the ABA?s resident [...
MSCD2?Update on Proofreading
Posted on April 08, 2008Ah, the glamorous life of the contract nerd! Vancouver one week! Oman and Bahrain the next! Philadelphia in between! But more mundane work goes on: I spent my first day in Oman in my hotel room, working on the manuscript for MSCD2. Thanks to the valiant efforts of the all-volunteer AdamsDrafting proofreading irregulars, it’s in great [...
I Heart Canada
Posted on April 08, 2008How do I love Canada? Let me count the ways: It was a Canadian organization?Osgoode Professional Developement?that asked me to do my first public seminar. Attendance at my seminars in the U.S. with West Legalworks can fluctuate wildly, but my Osgoode seminars in Toronto sell out...
Greetings from Oman!
Posted on April 08, 2008This post comes to you from Muscat, Oman. I’m here under the auspices of the Rule of Law Initiative of the American Bar Association, at the request of the Sultanate of Oman Ministry of Legal Affairs. Yesterday I held my “Language and Layout” seminar for a team of Ministry lawyers responsible for reviewing and drafting contracts [...
Tough Times a Spur to Clearer Drafting?
Posted on March 26, 2008This from the Lex column in today’s Financial Times, regarding Bear Stearns and the Cerberus litigation: It is too simplistic to blame sloppy drafting for disputes. Still, there may be room for improvement in terms of updating the often-archaic language used in merger agreements, as firms such as Jones Day and contract specialist Kenneth Adams have [...
When a Party Has a Limited Role in a Transaction
Posted on March 25, 2008Special thanks to reader Tony for reminding me of a usage that had slipped my mind: becoming party to a contract with respect to only certain provisions. For example, in an acquisition, the buyer?s parent might be party to the acquisition agreement solely to guarantee the buyer?s obligations or solely to undertake to pay a termination [...
Proofreading, Anyone?
Posted on March 25, 2008Input from readers of this blog has already served to enhance the second edition of A Manual of Style for Contract Drafting. But why stop there? I’ve just sent the ABA the manuscript for MSCD2. I enjoyed putting it together, as it contains a boatload of new material...
Drafting Errors in the Bear Stearns Merger Agreement? What a Shock!
Posted on March 24, 2008[Update March 24, 5:30PM EDT: Some people are suggesting that there’s something fishy to the story of Wachtell’s “mistakes.” See, for example, this post at Dealbreaker. On the other hand, Steven Davidoff’s analysis, at DealBook, takes the story at face value...
The Bear Stearns Merger Agreement?It?s Not a Thing of Beauty
Posted on March 19, 2008I’m grateful to stalwart readers Steven Sholk and Mike Wokasch for contacting me about the Bear Stearns merger agreement. (Click here to go to a PDF copy.) This deal raises all sorts of policy issues, but we at AdamsDrafting say to heck with the big picture?let’s look at the drafting angle! I offer below some random [...
Stating Amounts of Money
Posted on March 10, 2008I can think of five issues relating to how you state amounts of money in a contract. Words and Numerals Drafters will often do the words-and-numerals thing when stating amounts of money: Acme shall pay Widgetco One Million Dollars ($1,000,000). The idea is that whereas numerals are easier to read than words, they’re more prone to typographic [...
The Importance of Issue Spotting
Posted on March 10, 2008Most of what I do addresses how to express clearly and efficiently whatever you want to express in a contract. But that only goes so far, because no amount of clarity will help you if you simply mishandle an important substantive issue. This story in the ABA provides a reminder of that...
The Current MAC Environment
Posted on March 10, 2008I’ve written at inordinate length about how MAC provisions are used in contracts and how MAC is defined. But I don’t much get into whether, and how, MAC provisions are actually invoked in deals, unless issues of contract language come into play...
?The Terms Of?
Posted on February 29, 2008Here’s a quick way to save three words: instead of saying in accordance with the terms [or provisions] of section 6, say simply in accordance with section 6.
?As the Case May Be?
Posted on February 29, 2008Today I read in a work on contract drafting an explanation of the purpose served by the phrase as the case may be. I think the analysis offered was incorrect. Here’s my view: When in a contract a sentence provides for alternative courses of action, often one or more sentences that follow go on to address [...
Upgraded Registration System for Geneva Seminars
Posted on February 29, 2008As I noted in this post, from April 21 through April 25 I’ll be giving my “Contract Drafting?Language and Layout” seminar at the Geneva, Switzerland offices of Hogan & Hartson. Well, I’ve now upgraded the registration system...
Obligation to Purchase = Obligation to Sell
Posted on February 29, 2008Reader Michael Fleming informed me of US Salt, Inc. v. Broken Arrow, Inc., Civ. No. 07-1988, 2008 U.S. Dist. LEXIS 10841 (D. Minn. Feb. 11, 2008). This case serves as a reminder that a court would likely conclude that if Smith promises to purchase widgets from you, you’ve in effect also promised to supply widgets [...
?Bylaws? or ?By-laws??
Posted on February 23, 2008Bylaws is spelled both with and without a hyphen. For example, Black’s Law Dictionary gives a definition for bylaw but notes that it’s sometimes spelled by-law. So which is preferable? It appears that bylaw is gaining the upper hand. For example, the 1915 edition of Robert’s Rules of Order Revised used by-laws but the current edition, Robert’s [...
?Complete and Accurate?
Posted on February 23, 2008In a recent post I suggested that accurate is a “less dopey” alternative to true and correct. (Yes, I know, I too thought that an impressive turn of phrase.) That led a reader to suggest to me that complete and accurate is preferable to accurate...
?Automatically?
Posted on February 23, 2008I suggest that for purposes of contract drafting, you can always do without automatically. Consider the following fragment: … and each January 1 thereafter, this agreement will be automatically extended for one additional year unless not later than … I suggest that eliminating the word automatically wouldn’t affect the meaning...
Semicolons
Posted on February 23, 2008Perhaps because they’re aware that I’ve had occasion to consider punctuation, some readers contacted me about the February 18 New York Times article about use of a semicolon in a New York City Transit subway placard. Here’s the one thought that came to mind: In contracts, I use semicolons between integrated enumerated clauses when they’re preceded [...
Seminars in Geneva, Switzerland, April 21?25
Posted on February 20, 2008I’m pleased to announce that from Monday, April 21, through Friday, April 25, I’ll be giving five consecutive one-day seminars on “Contract Drafting?Language and Layout” at the Geneva, Switzerland offices of the global law firm Hogan & Hartson...
Stating that Recitals Are ?True and Correct?
Posted on February 16, 2008In the past year, 265 contracts filed as “material contracts” on the SEC’s EDGAR database contained a provision stating that the recitals were true and accurate. Here’s an example: The above recitals are hereby made a part of this Agreement and the Borrower acknowledges and agrees that each of the recitals is true and correct...
Adams Featured in LexBlog Q&A
Posted on February 13, 2008Kevin O’Keefe’s Real Lawyers Have Blogs has posted a Q&A with yours truly. Click here to go to it.
English Courts?A Hotbed of ?Endeavours? Insanity!
Posted on February 13, 2008I received the following from reader Nigel Madeley, of the U.K. law firm Addleshaw Goddard: Ken, I know this one raises your blood pressure a little. A case about nuisance by vibration?an adjoining occupier sought an injunction against a developer. The injunction was awarded...
?Bimonthly?
Posted on February 10, 2008Avoid the prefixes bi- and semi- for purposes of references to time?they?re confusing. Bimonthly means ?every two months? and semimonthly means ?every half-month,? in other words ?twice a month.? Biweekly and semiweekly reflect the same distinction. But biannual and semiannual both mean ?occurring twice a year,? whereas biennial means ?occurring once every two years...
When Performance Under a Contract Is by a Division
Posted on February 07, 2008Here’s yet another issue regarding the introductory clause that I haven’t previously written about: How, if at all, should you address in the introductory clause the fact that performance under the contract will be by a division of a company? You could ignore it...
The Apostrophe in ?Five Days? Notice?
Posted on February 07, 2008A couple of days ago I received from a reader an email that included the following: I’ve got a question about the use of apostrophes in notice period provisions. I was rather surprised to see that section 8.96 of the MSCD includes apostrophes after the number of days/weeks/months in your example provisions...
More on Alliance Data Systems and Blackstone Group
Posted on February 06, 2008As I mentioned previously, Alliance Data Systems and Blackstone Group are in litigation over Blackstone’s proposed acquisition of ADS. More specifically, ADS has filed a complaint alleging that Blackstone breached its obligations under the merger agreement by failing to use its ?reasonable best efforts? to obtain the approval of the Office of the Comptroller of the [...
?Promptly? and ?Immediately?
Posted on February 04, 2008Quick?what?s the difference between promptly and immediately? I bet that what comes to mind is the notion that immediately requires speedier action that does promptly. Well, if that?s what you thought, you?re in good company. For example, the District Court for the Southern District of New York has said that promptly doesn?t mean immediately, but rather [...
Does Any Law Require All Capitals?
Posted on February 04, 2008This post on use of all capitals in contracts?it’s from Legal Frontier, Andrew Mitton’s blog?reminded me of a question that I’ve asked myself occasionally. The Legal Frontier post is about how use of all capitals makes contract text harder to read...
Investing in Your Templates
Posted on February 04, 2008A few months ago someone at a public company mentioned to me that her department was about to embark on a redraft of their templates. I was familiar with the subject matter, so I knew that the templates must be complex. I recently checked in with her to see how the process was going...
Alliance Data Systems, Blackstone Group, and ?Reasonable Best Efforts?
Posted on January 28, 2008If anyone is wondering why I’ve been devoting time to efforts standards, have a look at this post on DealBook by Steven Davidoff regarding a development in Blackstone Group’s proposed acquisition of Alliance Data Systems. For reasons I discuss in MSCD, in this article, and in last week’s blog post, it would be bizarre for a [...
What the Heck Does ?Best Efforts? Mean?
Posted on January 24, 2008I suspect that the one usage that causes me most aggravation is best efforts. That’s because the way I see it is diametrically opposed to the way many practitioners see it. I think the problem is that people approach it as an issue to be resolved by case law, whereas I see it first of all [...
Quanta v. LG?Chief Justice Roberts on the ?Let?s Sort It Out in Litigation? Approach
Posted on January 18, 2008Sidestepping a contentious contract issue with the notion of working it out in litigation is a standard strategy, but you don’t often find examples of it in the wild. That’s why I noted with interest oral argument before the Supreme Court on January 16 in Quanta v...
Contractions? In a Contract?
Posted on January 15, 2008One sure route to a stiff, starchy prose style is not to use contractions. They’re suitable in all but the most formal kinds of writing, and they help you achieve a more natural, conversational rhythm. For some reason that I’ve since repressed, I didn’t use contractions in MSCD...
What Don?t You Like About MSCD?
Posted on January 15, 2008Have you thought to yourself, as you flipped through A Manual of Style for Contract Drafting, that I’d failed to address adequately, or at all, some issue that’s dear to your heart? Do you have a beef with any of my recommendations? Do you not like the binding? The cover? The font? If so, now’s [...
Great Case on Whether Discretion is Limited
Posted on January 13, 2008I love it when I spot an issue and analyze it, and subsequently a case comes down that hinges on exactly that issue. You may recall that in this June 2007 post I discussed two subtle issues involving may. One issue involved limited discretion and the expectation of relevance...
Including ?Plan of Merger? in the Title of a Merger Agreement
Posted on January 11, 2008Here’s another fresh extract from the manuscript of MSCD2. It’s from the section “The Title,” and it addresses at greater length something I mention in MSCD 2.3: And don?t feel obligated to track the terminology of state statutes...
Contracts Under Seal?
Posted on January 11, 2008I’ve snickered at the notion of contracts under seal, but I’ve never studied the topic. Here’s what I found out: In medieval England, a seal?consisting of wax attached to a writing and bearing an impression?served as a marker to identify the parties to an agreement...
Vancouver Seminar on April 1, 2008
Posted on January 11, 2008On April 1 I’ll be giving my “Contract Drafting?Language and Layout” seminar in Vancouver, B.C., for the first time. Click here for the brochure. As with my Toronto seminars, my host will be Osgoode Professional Development. The Toronto seminars have gone very well, so I expect the same for Vancouver...
Including Headings in Cross-References
Posted on January 08, 2008Here’s a paragraph from the manuscript for MSCD2. It’s so fresh that steam is still rising from the words: An internal cross-reference that consists of only a number gives the reader no indication of what?s addressed in the specified provision...
?From Time to Time?
Posted on January 08, 2008In this November 2007 post, I suggested that the phrase at any time is always extraneous. Well, the same goes for from time to time. Used With Language of Discretion The phrase from time to time is used to mean, in essence, “on one or more occasions...
January 9 ACC Teleconference
Posted on January 03, 2008On Wednesday, January 9, at 1:00PM Eastern Time, the Law Department Management Committee of the Association of Corporate Counsel will be holding their monthly teleconference. I’ll be the featured speaker?starting around 1:30PM I’ll be talking, for 15 minutes or so, about “Issues of Quality and Process in Handling Your Contracts...
What in a Contract Requires Typographic Emphasis?
Posted on December 28, 2007In a recent post I said that along with switching from Times New Roman I’d be abandoning underlining in favor of bold. But here’s a related question: I’ve previously used underlining to emphasize section headings, each defined term when it’s being defined, and references to exhibits and schedules...
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