Corporate & Securities Law

“is there anything more boring than drafting a contract?”

Posted on June 02, 2009
For 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, 2009
Reader 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, 2009
In 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, 2009
After 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...

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My “Drafting Clearer Contracts” Webcasts with West LegalEdcenter; Sponsorship by Business Integrity

Posted on May 27, 2009
I’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, 2009
Having 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, 2009
How 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, 2009
The 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, 2009
Black-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, 2009
Legal 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, 2009
On 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, 2009
In 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, 2009
In 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, 2009
A 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, 2009
It’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, 2009
At 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, 2009
While 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, 2009
MSCD 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, 2009
While 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, 2009
I 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, 2009
My 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, 2009
What 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, 2009
Regular 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, 2009
On 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, 2009
In 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, 2009
The 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, 2009
Here’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, 2009
I’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, 2009
Today 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, 2009
In 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...

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