Legal Writing

You Have to Read the Contract

Posted on August 09, 2010
I happened upon this blog post by Susan Wilson of Alston+Bird regarding a recent Delaware Chancery Court opinion, Cambridge North Point LLC v. Boston and Maine Corporation. B&M argued that the court should hold the contract at issue unenforceable because B&M had signed the contact ?without noticing? a new provision added to a draft by Cambridge...

A Reminder that Contracts Under Seal Are, Sadly, Still Relevant

Posted on February 19, 2010
In this January 2008 blog post I noted that the requirements for what constitutes a “contract under seal” have been relaxed to the point of ludicrousness. But I also noted that in some states whether a contract is under seal has a bearing on which statute of limitations applies...

What to Call the Components of the Body of the Contract

Posted on January 21, 2010
Yesterday I gave another of my Osgoode Professional Development seminars in Toronto, to a sellout crowd of eighty. During a break I discussed with one of the participants what to call the components of the body of the contract. In a follow-up email, here’s what she had to say on the subject: As discussed, in England [...

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...

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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...

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 [...

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