Corporate & Securities Law

Switching from the AdamsDrafting RSS Feed to The Koncise Drafter RSS Feed

Posted on December 15, 2010
I’ve switched my blogging home from this blog to The Koncise Drafter. So if you subscribe to the RSS feed for this blog, you might want to unsubscribe and go here to subscribe to the RSS feed for The Koncise Drafter. Same pointy-headed contract stuff, different URL!

The AdamsDrafting Blog is Dead, Long Live ?The Koncise Drafter?!

Posted on December 02, 2010
Dear readers, this is the last post on the AdamsDrafting blog. Although this site, and this blog, will remain up, I won’t be updating them. Instead, I’ve moved my online base to www.koncision.com, the home of my new venture, Koncision Contract Automation...

The Irrelevance of Knowledge Management

Posted on November 02, 2010
After deciding, about ten years ago, that I wanted to be The Contract-Drafting Guy®, one of the first things I did was contact every law-firm “knowledge management” person I could track down, so that I could discuss with them how I might help their firm put its contract-drafting process on a rational footing...

My Trip to the ACC Annual Meeting, in Might-Have-Been Tweets

Posted on October 28, 2010
A feature of my wary relationship with Twitter:  When I?m on the road and should, in theory, be regaling the world with salvos of bracing tweets, it?s the last thing I?m inclined to do. I?d rather experience things a fully as I can rather than devote part of my attention to providing running commentary...

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Revised Copyright Notice

Posted on October 23, 2010
My thanks to those who commented on my draft of the copyright notice for my book The Structure of M&A Contracts. Here’s my revised version: © 2010 Kenneth A. Adams You may copy and distribute without charge this publication?s table of contents, on condition that you include the above copyright notice in any copies...

Australia: A Haven for Contract Drafters?

Posted on October 22, 2010
Earlier this week I saw the following notice on the website of The Australian (emphasis added): GLOBAL firm Jones Day has poached Tony Wassaf from Allens Arthur Robinson and appointed him partner in the firm’s Sydney office. The energy and resources specialist has more than 25 years experience in the sector and said he was keen [...

What Do You Think of My Draft Copyright Notice?

Posted on October 22, 2010
My book The Structure of M&A Contracts will be published in two or three weeks. I’m currently torturing West with comments on the page proofs. The final bit of text that I have to prepare is the copyright notice. Here’s what it would look like if I were to base it on West’s standard copyright [...

Panel Discussion at ACC Annual Meeting (And Book Giveaway!)

Posted on October 22, 2010
The annual meeting of the Association of Corporate Counsel will soon be upon us, and I’m gearing up for my part in the panel discussion “Contract Drafting to Avoid Disputes and Inefficiency.” It’s on Tuesday, October 26, at 2:30 p...

Does Anyone Still Review Law Books?

Posted on October 16, 2010
I have yet to write a review of a book on contract drafting, and I don’t expect I ever will. Any such review would inevitably be less than a full-throated endorsement. If the author is a friend, they would be disappointed; if the author isn’t a friend, they would likely be more than disappointed; and readers [...

Locking a Draft Contract

Posted on October 14, 2010
Longtime reader Jim Brashear, now general counsel of Zix Corporation, shared with me a series of exchanges he engaged in regarding locking, and unlocking, Word draft of contracts; I’ve copied them below. This isn’t an issue I have any experience with, as I no longer do deals, but the idea of locking Word documents strikes me [...

Why I Don?t Use ?Immediately? or ?Automatically? to Reinforce ?If ? Then? Causality

Posted on October 09, 2010
Recently in my contract-drafting course at Penn Law I drilled my students in the categories of contract language. (I suggest that understanding categories of contract language is essential to controlled drafting. The topic is analyzed exhaustively in MSCD chapter 2, and you can get a sense of it by looking at posts on this blog [...

?Further?

Posted on October 05, 2010
Contract language differs from narrative, expository, and persuasive prose. When the writer needs to tell a story, explain, or convince, one block of text picks up where the previous one left off. The reader is taken on a trip?jumping on board with the first sentence, hopping off at the end...

To Avoid Fights About Lexical Ambiguity, Be Imaginative

Posted on October 05, 2010
Lexical ambiguity arises when the context is insufficient to allow readers to determine the sense of a word that has more than one meaning. You’d think that to avoid lexical ambiguity, all that a drafter has to do is ensure that reasonable readers couldn’t find alternative meanings in a given word...

Relying Unduly on ?Arising Out Of? in Arbitration Provisions

Posted on October 05, 2010
That one-man legal-news phenom Steven Sholk pointed me to this story on Law360.com. (Subscription required, or free trial.) It describes how in a petition filed on September 25, American Home Assurance Co. asked the U.S. Supreme Court to define the scope of the phrase arising out of in arbitration clauses...

?Aggressively??

Posted on October 01, 2010
In a contract he drafted for an assignment, one of my Penn Law students used the word aggressively. I immediately turned to EDGAR, where I found 106 “material contracts” filed in the past year that contain aggressive or aggressively. Here’s an example (emphasis added): Distributor shall aggressively distribute and encourage the utilization of merchandising aids [...

For Optimal Contract Language, Don?t Follow the Herd

Posted on September 30, 2010
In this post on his Contract Analysis and Contract Standards blog, Kingsley Martin notes that empirical analysis of contracts allows you to determine what they actually say as opposed to what you think they say. That makes sense, but it wasn’t what caught my eye...

What U.S. Cities Should I Add to My 2011 ?Drafting Clearer Contracts? Dates?

Posted on September 30, 2010
In partnership with West LegalEdcenter, I do an all-day version of my “Drafting Clearer Contracts” seminar in cities throughout the U.S. Click here for the 2010 schedule. (I do seminars in Canada with a different partner, Osgoode Professional Development...

Are Some Terms Too Obvious to Define?

Posted on September 29, 2010
I’m back teaching at Penn Law, working through the chaos that inevitably seems to accompany the first couple of weeks. A sign that we’re getting more focused is that two students each reported an MSCD typo. (Cue author gnashing teeth.) And more to the point, one student asked the first blogworthy question of the semester...

Is Contract Drafting ?Deadly??

Posted on September 29, 2010
This American Lawyer article about the lawyers of the “Forbes 400″ reminded me that real-estate developer Sam Zell once said, regarding his first days as a lawyer, “I spent my first week drafting a contract. It was deadly.” (See this WSJ Law Blog item for complete details...

LinkedIn Groups: The Wisdom of Crowds, the Tower of Babel

Posted on September 28, 2010
Readers of this blog will be aware that I’m partial to the notion of lobbing questions to a broad and interested readership and seeing what I get by way of a response. So it will come as no surprise that I think LinkedIn groups can be useful. Thus far my involvement in LinkedIn groups has [...

Some More BigLaw Seminar Feedback

Posted on September 23, 2010
I’ve previously (in this blog post and this blog post from November 2009) ruminated over the relative dearth of BigLaw associates at my public seminars in the U.S. (Canada is a different matter entirely.) So when some do materialize, it’s a little like a birdwatcher spotting a variegated flycatcher...

Unilaterally Fixing a Signed Contract Is a Bad Idea

Posted on September 20, 2010
Via Above the Law, I learned of this article in the Los Angeles Times. Frank McCourt, owner of the L.A. Dodgers baseball team, is engaged in a scorched-earth divorce battle, and this article details how Larry Silverstein, a lawyer for McCourt, apparently took it upon himself to change one word in a signed contract between [...

?Books and Records??

Posted on September 14, 2010
Reader Macy Shubak recently asked me the following question: How do you feel about using “books and records” as in “Investor may inspect the Company’s books and records”? I think one or the other of the words can be deleted...

Working Through the ?What Ifs?

Posted on September 09, 2010
A crucial part of drafting any contract is making sure that you’ve worked through the “what ifs”?that you’ve addressed all conceivable scenarios and that nothing has fallen through the cracks. When you’re dealing with a complex transaction, accomplishing that requires specialized expertise and sufficient time and patience to wrestle with lengthy and and intricate documentation...

Real Change: Not from the Demand Side or the Supply Side, But from the Outside

Posted on September 07, 2010
When it comes to contract drafting, change is tough. For one thing, it’s precedent-driven. And it’s a team sport?instead of being able to draft in splendid isolation, you may well have to take into account the preferences of others on your side of the transaction, not to mention the preferences of those on the other [...

Getting Litigator Input When Drafting Contracts

Posted on September 01, 2010
In the article on arbitration versus litigation that I mentioned in this post, a couple of the litigators interviewed noted wistfully that they’re almost never consulted about what dispute-resolution provisions to include in a given contract. That raises a general question: Do you ever consult litigators when drafting? Do you think it adds value to [...

Tweaking Your Arbitration Clause

Posted on September 01, 2010
If you’re a fan of the litigation-versus-arbitration debate, you’ll find of interest this article on law.com. It’s from the Legal Intelligencer, and it’s by Gina Passarella. The title says it all: “Litigators Losing Love of Arbitration Argue for Trials...

Some Thoughts on Theory Versus Practice in Law Schools

Posted on September 01, 2010
In recent days there’s been plenty of chatter about this post on Balkinization by Jason Mazzone, a professor at Brooklyn Law School. Here’s the meat of what he proposes: As far as I can tell, no law school in the United States co-exists in a university along with an academic law department...

?Mandatory?

Posted on September 01, 2010
The word mandatory can come in handy in contracts, for example in the defined term Mandatory Conversion, as distinguished from Voluntary Conversion. But it can also be surplussage, in that if something is stated as an obligation, then necessarily it’s mandatory...

Koncision CA Editorial Boards

Posted on August 23, 2010
You’ve presumably seen this blog post announcing Koncision Contract Automation. I could have waited until Koncision CA was ready for launch before announcing, but I have two reasons for announcing now. One, I want to have the benefit of input from potential users...

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