Legal Writing

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...

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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...

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