Legal Writing

Signing Off for August

Posted on July 27, 2009
I’m looking forward to August. I’ll be spending time in Cap Ferret, on France’s west coast; in Geneva, Switzerland; and in Saratoga Springs, in upstate New York. I’ll enjoy showing my daughter a bit of Europe (including Geneva, the city where she was born) and having her get reacquainted with family members she sees too infrequently...

Contract Drafting and the Limits of ?Free?

Posted on July 27, 2009
Publication of Chris Anderson’s book Free: The Future of a Radical Price has prompted a lot of online discussion about the extent to which a thriving business can be built on giving stuff away for free. At My Shingle, Carolyn Elefant has offered some thoughts on “Biglaw Free and the Solo...

?Drafting Up? and Extraneous Prepositions

Posted on July 21, 2009
Today I noticed that someone said on Twitter that they were “drafting up a screenplay contract for legal revisions” (emphasis added). That sent me to Google, where the search ["drafting up" contract] resulted in 4,090 hits . The search ["draft up" contract] resulted in 12,900 hits, but they included a greater proportion of irrelevant results, such as “You screwed [...

Initialing Each Page of a Contract

Posted on May 05, 2009
Here’s what I understand of the practice of having those signing a contract also initial each page of the contract: It’s commonplace in wills, apparently as a check against substitution of pages. It’s required by statute in the case of some contracts...

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BaselineNDA?A Tool for Reviewing NDAs

Posted on September 20, 2008
I’ve kicked the tires of a good number of information-technology tools aimed at making the contract process more efficient, but I hadn’t encountered a product that aimed to simplify the task of reviewing a contract drafted by the other side in a transaction...

The Numbering Assistant?s MSCD Schemes Revised; Also, New Templates Posted

Posted on September 11, 2008
MSCD 3.38 invites readers to request a free 30-day trial of the Numbering Assistant, the paragraph-numbering tool developed by Payne Consulting Group that allows you to quickly and simply apply one of the two flavors of the MSCD enumeration scheme to any contract in Word...

?Dysfunctional Drafting??My Opinion Piece in the National Law Journal

Posted on September 06, 2008
The September 8, 2008, issue of the National Law Journal contains my opinion piece “Dysfunctional Drafting.” Click here to go to the online version. By the way, check out the little illustration accompanying the piece.

LaserPro?A Document-Assembly Success Story

Posted on September 02, 2008
For most of us, using document-assembly to draft contracts remains an apparently distant prospect. But for some, it’s a fact of life. For example, I’ve previously mentioned the AIA’s Contract Documents system. Well, document assembly is sufficiently accepted in the construction industry that it now has a competitor, ConsensusDOCS...

Dilbert on Contract Drafting

Posted on August 29, 2008
The Dilbert cartoon strip has captured perfectly my feelings regarding the language and process of mainstream contract drafting! Check it out at the (new) legal writer.

Students Entitled to 40% Discount on MSCD

Posted on August 25, 2008
I just learned that students are entitled to a 40% discount on A Manual of Style for Contract Drafting if it’s assigned reading for a law-school class. If you’re a professor and would like to find out more (no students, please!), click here to send an email to Katrina Krause of the ABA.

?Provided That?

Posted on August 23, 2008
Comments to my recent post on granting language in a license alluded to the case of Jacobsen v. Katzer (Fed. Cir., Aug. 13, 2008). I’d like to pick up on something mentioned by commenter Chris?the court’s discussion of provided that. This case involved the language of an “open source” copyright license...

Granting Language in a Software License Agreement

Posted on August 18, 2008
Here’s a generic bit of granting language from a software license agreement: Acme hereby grants Widgetco a nonexclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license to the Software (that license, the “License“)...

The Second Edition of MSCD Is Now Available

Posted on August 12, 2008
The ABA Web Store now has in stock copies of the second edition of A Manual of Style for Contract Drafting. Click here to go to the relevant page. And note that the ABA is offering free ground shipping through the end of August. The ABA is currently the only place you can purchase the [...

LaPoint v. AmerisourceBergen?An Interest Instance of Mistake

Posted on August 09, 2008
At a CLE session at the ABA annual meeting I learned of LaPoint v. AmeriSourceBergen Corp., No. 327-CC (Del. Ch. May 1, 2007), a Delaware Court of Chancery case that offers an interesting instance of mistake. The case involved a dispute over an acquisition earnout...

?In All Respects?

Posted on August 09, 2008
Here’s another entry in the rhetorical-emphasis hall of shame?in all respects. Here’s an example: This agreement is in all respects governed by Minnesota law. By omitting in all respects you lose nothing except surplus words. The same goes for in all material respects?use instead materially, but remember that it’s ambiguous...

If You Attended One of My Public Seminars Held Between April 1 and May 15, 2008, You?re Entitled to a Discount on the Second Edition

Posted on August 07, 2008
People who attended certain of my recent public seminars received a copy of the first edition of MSCD just as it was about to be made obsolete. So I’m making the second edition available for $25?one third the regular price?plus shipping to those who participated in the following public seminars: April 1, 2008 seminar in Vancouver [...

My Itinerary at the 2008 ABA Annual Meeting

Posted on August 05, 2008
If you’re attending the 2008 American Bar Association annual meeting and you’re in a contract-drafting frame of mind, here’s what I’ll be doing there: Thursday, August 7, 2:00PM?3:30PM, “Meet the Author,” ABA Source, Hilton New York (Second Level of the Conference Area), 1335 Avenue of the Americas Friday, August 8, 2:30PM?4:30PM, Panel Discussion, “Getting the Business Deal into [...

Are Law-Firm Contract-Drafting Services a Commodity?

Posted on July 31, 2008
In this post on his Law Department Management blog, Rees Morrision?prolific consultant to law departments?quotes a survey in the July 2008 issue of Inside Counsel as saying “33.5% of in-house counsel reported that law firm services are a commodity...

Observing Contract Deadlines?A Cautionary Tale Involving FaceTime Communications and Reuters

Posted on July 29, 2008
In this post on his Goldman’s Observations blog, Eric Goldman describes a dispute between FaceTime Communications and Reuters. Reuters licensed FaceTime’s software for two years and devoted significant resources to customizing the software...

Whether to Refer to the Possibilty of Dispute Over an Invoice

Posted on July 29, 2008
Eric Goldman recently sent me the following inquiry: A typical vendor’s contract will say something like “Customer shall pay invoiced amounts within 30 days of invoicing.” With some frequency, customers have been marking up this language to read: “Customer shall pay *UNDISPUTED* invoiced amounts within 30 days of invoicing...

ABA Cyberspace Law Committee Looking to Develop New Model Contracts

Posted on July 29, 2008
Through this post by Michael Fleming on the Cyberspace Lawyer’s Blogger, I learned that the Cyberspace Law Committee of the ABA Section of Business Law is proposing to draft new model contracts. This project sounds interesting: The Liberty Alliance Project is, in its own words, working to “enable a networked world based on open standards where consumers, citizens, [...

2009 U.S. Seminar Dates, Plus Stray Thoughts on Public Seminars

Posted on July 24, 2008
For those who like planning in advance, here are my West Legalworks seminar dates for 2009: Feb. 24, Houston Mar. 3, Atlanta April 9, Cleveland May 7, Chicago June 2, Philadelphia July 16, Seattle Sept. 15, Los Angeles Sept. 24, Washington, D.C. Oct...

New Article on Consequential Damages

Posted on July 23, 2008
The May 2008 issue of The Business Lawyer contains a great article by Glenn D. West and Sara G. Duran of Weil Gotshal entitled “Reassessing the ‘Consequences’ of Consequential Damage Waivers in Acquisition Agreements.” Click here for a copy...

Abuse of Nondisclosure Agreements

Posted on July 23, 2008
I have a soft spot for nondisclosure agreements, or NDAs (also known as confidentiality agreements): They’re relatively short and straightforward, yet they’re subtle enough that drafters routinely screw them up. And they’re commonplace; in fact, they’re something of a nuisance?the cockroach of the contract-drafting world...

Article on Clumsy Drafting of an Earnout Provision

Posted on July 23, 2008
A common feature of M&A contracts is the “earnout” provision?a provision that specifies that the purchase price will be increased if the business being acquired meets, post-closing, stated financial-performance targets. If you’re interested in earnout provisions, of if you’d just like to see yet one more example of how lackadaisical drafting can result in litigation, you might [...

Behind the Scenes of the ?Such As? Case

Posted on July 18, 2008
Thanks to the litigation in Lawler Mfg. v. Bradley Corp., recently I discovered the nuances of such as. That led me to write about such as in this post. Yesterday I received a message from Wayne Turner, a litigation partner in the downtown Indianapolis office of Bingham McHale...

MSCD Second Edition Available on Preorder

Posted on July 16, 2008
Publication of the second edition of A Manual of Style for Contract Drafting is fast approaching. One sign is that a page for the book is now up on the ABA’s Web Store. (For the first six months, it will be available only through the ABA.) Check out the sharp new cover! Even more to the [...

Having a Parent Company Enter Into a Contract ?On Behalf? of an Affiliate

Posted on July 16, 2008
A reader recently asked me the following question: We frequently sign global services agreements that provide that the parent company is signing “for and on behalf” of an affiliate. What do you think of this practice? I’m uncertain about having a parent sign a contract on behalf of an affiliate...

Using ?Anniversary? to Denote a Milestone in Months

Posted on July 05, 2008
Here’s what Garner’s Modern American Usage has to say about anniversary: anniversary (= the day of the year on which an event occurred in a previous year) is today used informally to denote a milestone in months or even weeks. That usage has become increasingly common, perhaps because there is no convenient equivalent for terms shorter [...

Seattle, July 17?The Drinks Are on Me!

Posted on June 30, 2008
On July 17 I’ll be in Seattle giving my West Legalworks seminar. Afterwards, starting at 5:00 p.m., I’ll be meeting a few friends for drinks at the restaurant Sazerac, at 1101 Fourth Avenue, at the corner of Spring Street. It’s a few blocks from the Grand Hyatt, where the seminar is being held...

Another Second Edition of a Book on Contract Drafting

Posted on June 30, 2008
Maybe it’s sunspots. Or something in the water. At any rate, another second edition of a book related to contract drafting has just been published. This time it’s Charles Fox’s Working with Contracts: What Law School Doesn’t Teach You...

Degrees of Concision: A Note on Writing in General

Posted on June 27, 2008
Normally I wouldn’t dream of going public with thoughts on writing in general. A vast number of people have busied themselves with that topic, so there’s no chance of my having anything novel to say. I regularly give thanks to the gods of writing that I’ve been given the near-virgin territory of contract drafting to [...

Line Numbering?

Posted on June 26, 2008
Once in a long while I see a template contract that uses Word’s line-numbering feature to include line numbering in the left margin of each page. The idea, obviously, it to allow anyone involved in drafting or negotiating a contract based on the template to pinpoint language at issue?Let’s strike the word “material” on page 46, line [...

Deal Proof?A Document-Analysis and Proofreading Tool

Posted on June 23, 2008
I said in this blog post that I planned to do a post about Deal Proof. Well, here it is. Deal Proof is a Thomson West product; click here to go to the relevant page of the Thomson West website. It’s a document-analysis and proofreading tool that many of the big firms subscribe to...

Mark Your Calendars: Panel Discussion at 2008 ABA Annual Meeting

Posted on June 23, 2008
FYI, I’ll be on the panel for a CLE session at the ABA 2008 annual meeting, which is being held in New York. The topic is “Getting the Business Deal into the Contract?Choosing the Right Words.” It’s being held at 2:30 p.m. on Friday, August 8...

A Law Firm that Forbids Use of ?Shall???Addendum

Posted on June 23, 2008
In this post I described how I had heard someone cite by name some companies and one law firm?a multi-office U.S. law firm?that had foresworn use of shall. Well, recently I had the privilege of giving a series of seminars at that law firm, and I was tickled to be able to ask two senior [...

?Satisfactory?

Posted on June 22, 2008
If you say that something has to be satisfactory to Acme, the standard might be an objective one, in that it would be met if a reasonable person in Acme?s position would be satisfied. Alternatively, it could mean that Acme actually has to be satisfied, subject only to the implied duty of good faith?the standard [...

Steps Law Firms Can Take to Manage the Contract-Drafting Process

Posted on June 18, 2008
Law firms could take a number of steps to put their contract drafting on a more rational footing. They could adopt a contract-drafting ?house style? that recommends usages to employ and usages to steer clear of. They could offer rigorous training. And they could implement a centralized template initiative, maybe even one that makes use [...

Should I Do Webinars?

Posted on June 18, 2008
West Legalworks would like me to do webinars for them. I’m open to the idea. I could do a series based on MSCD?maybe eight one-hour webinars. They’d be done live and then would be available on demand. Would doing MSCD webinars cause me to lose seminar business? I don’t think so...

I?m Back (And So Is the System for Signing Up for Email Updates)

Posted on June 18, 2008
I’m back after a three-week break from blogging. I’m not exactly refreshed, as I was traveling hither and yon doing seminars and, during down time, reviewing page proofs of the second edition of MSCD. I have a relatively tranquil summer ahead of me, so I’ll be recharging my batteries, mainly by turning to man-about-the-house duties that I’ve [...

Lexicon?A Tool for Organizing and Checking Defined Terms

Posted on April 23, 2008
One frustrating aspect of my self-appointed role as freewheeling contract-drafting guy is that I’m not involved, day in and day out, in drafting contracts. As a result, I don’t have occasion to gain hands-on experience with the nifty information-technology tools that are now available to help the drafter...

Attorneys Signing Contracts?

Posted on April 23, 2008
Victoria Pynchon?she of the Settle It Now Negotiation Blog?asked me the following question: While I was practicing, it was common for the opposition to put signature lines on settlement agreements for the attorneys’ signatures. I always refused to sign these, saying, “I’m not a party to this contract and I don’t think my signature adds anything [...

When an ?Indemnified Party? Isn?t an Indemnified Party

Posted on April 23, 2008
It?s been a couple of months since I looked through recent opinions. It?s time for me to get back into the habit of doing so, because all sorts of interesting issues crop up. Consider Moore v. Wal-Mart Stores, Inc., 2008 U.S. Dist. LEXIS 30480 (N.D. Mi...

?Change in Control? or ?Change of Control??

Posted on April 23, 2008
Here’s another issues that cropped up during my Geneva seminars: Which is preferable, change in control or change of control? My instinct was that both usages are equally acceptable, and that was borne out by five minutes of research. Contracts filed on the SEC’s EDGAR system don’t seem to display a marked preferance for one usage [...

Schedules? ?On? or ?In??

Posted on April 23, 2008
During one of my Geneva seminars this week, someone asked me whether it’s better to say listed/described/stated in schedule X or on schedule X. I’d been asked this question a couple of times previously, and I’d responded that I wasn’t sure that I cared...

English as the Lingua Franca of Contracts

Posted on March 13, 2008
I’m working on the introduction to MSCD2, and five minutes ago I wrote this: English is used in contracts around the world, and not only in contracts between companies from English-speaking countries. English has become the lingua franca of international business, so a contract between, say, a French company and a Brazilian company is more likely [...

Sources of Uncertainty in Contract Language

Posted on March 04, 2008
[I was prompted to write this post after consulting, over the past few months, dozens of cases ostensibly involving ambiguity but in fact dealing with a range of other problems. I plan on including a version of this in MSCD2, so I’d be pleased to receive comments...

My New York Law Journal Article on the Cerberus Litigation

Posted on February 19, 2008
Today’s issue of the New York Law Journal contains my article on the recent litigation between Cerberus and United Rentals. Click here to go to a PDF copy. It’s also available at the NYLJ website if you’re a subscriber.

?Respective? and ?Respectively?

Posted on February 18, 2008
A couple of days ago reader David Munn?ever vigilant against the forces of contract-drafting darkness?sent me the following: I couldn’t find that you had blogged on one of my pet peeves, which is the overuse of the word “respective,” as in “All capitalized terms that are used but not defined in this SOW have the respective [...

Oddball Usage of the Day: ?Includes Only?

Posted on February 07, 2008
What’s wrong with this picture: “Subsidiary” includes only any company in which the applicable entity, directly or indirectly, has a beneficial ownership interest of greater than 50 percent. Well, includes only equates to means? what includes gives, only takes away...

Fun and Games with the Meaning of ?Year?

Posted on February 07, 2008
Reader Steven Sholk of the Gibbons law firm alerted me to the February 6 decision by the Mississippi Supreme Court in Barbour v. Mississippi ex rel. Hood. Click here for a copy of the opinion. Steven had been alerted to this case by Rick Hasen of the Election Law blog...