Corporate & Securities Law

Contracts as a Relationship-Building Tool

Posted on February 09, 2009
Some people regard the contract process as an adversarial one. I encountered a great example of that recently: someone I’ve been corresponding with used the word “opponent” in referring to a lawyer representing the other side in a deal...

Using ?Any? to Tame ?And?

Posted on February 06, 2009
Here’s a case of modest interest to you fans of and and or: County of Du Page v. Ill. Labor Rels. Bd., No. 105395, 2008 Ill. LEXIS 1835 (Ill. Dec. 18, 2008). It involves statutory construction, but the principles at issue apply equally to contracts...

Lexical Ambiguity: A New Case for Fans of Frigaliment

Posted on February 05, 2009
While at LegalTech on Tuesday, I picked up a free copy of the New York Law Journal, just for the sheer novelty of reading it in newsprint. One item that caught my eye was an account of WebMD LLC v. RDA International Inc., No. 102830/08, 2009 WL 175036 (N...

Revising Your Contracts to Reflect Changed Circumstances

Posted on February 04, 2009
Reader Melvin told me about this item on Lexology by Jeffrey P. Drummond of Jackson Walker LLP. It’s about how the Third Circuit Court of Appeals reversed the lower court in a qui tam action brought by a doctor against a hospital under the False Claims Act...

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When the Parties Know That an Obligation Can?t Be Performed

Posted on February 04, 2009
Included in the extensive comments to my recent post “Language Requiring Deletion of Electronic Files” is a comment by Michael Fleming to the effect that it’s appropriate to impose on a party receiving confidential information an obligation to destroy all electronic versions of that information, regardless of whether that’s in fact possible to do...

New 2009 Seminar Dates (Including Some Testimonials)

Posted on January 31, 2009
I’ll soon be resuming my itinerant ways. In particular, my first public seminar of 2009 is on February 24, in Houston. And 2009 just got busier, as I’ve added some new “Contract Drafting?Language and Layout” public seminar dates, namely U...

Adopting a House Style for Contract Drafting

Posted on January 29, 2009
To accomplish any given drafting goal, one usage will be more efficient than the others. Once you accept that notion, it follows that it would make sense for drafters to join other writers in using a manual of style. That’s why I wrote A Manual of Style for Contract Drafting...

Drafting by Committee? Not So Good

Posted on January 28, 2009
Today Rees Morrision posted this item on his blog. It makes the point that groups are good for sharing information but not so good for making decisions. It also quotes an academic as saying that “Groups are not helpful in getting people to make better decisions, but they?re helpful in getting people to feel more [...

More on Prospects for Change: Getting Outside Counsel to Cooperate

Posted on January 27, 2009
This post earlier this month considered how to ensure that people on the other side of a deal don’t balk at MSCD-compliant language. But what if it’s your outside counsel that’s not playing along? In this post from last weekend I said that company law departments are best positioned to drive change, in that they?re the [...

Follow this Blog on Twitter

Posted on January 25, 2009
In this post from earlier this month, I expressed incredulity at the idea of my being able to make good use of Twitter?what I do doesn’t come in installments of no more than 140 characters. But following up on a suggestion by commenter Jonathan Handel, I’ve arranged matters so that every time I post on the [...

Prospects for Change

Posted on January 24, 2009
A couple of recent posts (this one and this one) prompted some gnashing of teeth and rending of clothes by commenters frustrated at the pushback they encounter when they use clear, efficient, and modern contract language. So I thought it might be worthwhile for me to elaborate on something I offered in this comment...

With Free Online Forms, You Get What You Pay For

Posted on January 21, 2009
Rees Morrison, prolific blogger on all things law-department-related, posted this item about free legal forms available online. Here’s what it says: As the online world inexorably proves that information wants to be free, in-house counsel will increasingly have more forms of agreements available online, and at no cost...

Numbering or Lettering Schedules and Exhibits: A Proposal

Posted on January 21, 2009
Here’s the approach that’s reflected in MSCD: If you could accomplish any given drafting goal in a number of different ways, consistency and efficiency would be enhanced if you, and everyone else, were to choose, and stick with, just one of the ways...

The Different Ways of Signing Legal Documents Electronically

Posted on January 21, 2009
Thanks to Bryan Sims of The Connected Lawyer, I came across (1) this useful post by TechnoEsq on the different ways of signing legal documents electronically and (2) this post by Ernie Svenson, wearing his PDF for Lawyers hat, on one of those ways of signing, namely using digital signatures...

?As Well As?

Posted on January 20, 2009
In this October 2008 blog post I said that together with is usually a roundabout way of saying, depending on the circumstances, and or with or plus. Well, it just crossed my mind that a related usage is as well as?you should be able to use and instead...

Does One ?Enter Into? or ?Enter? a Contract?

Posted on January 19, 2009
The following is from reader Tom Hertz: Based on MSCD, I gather that you’d say that parties enter into an agreement, rather than simply enter it. (See, for example, MSCD 2.21 and 8.18.) The former usage is certainly common and, just as certainly, redundant...

Language Requiring Deletion of Electronic Files

Posted on January 16, 2009
I received the following inquiry from Sarita Nair of the New Mexico law firm Sutin, Thayer & Browne: I am struggling to find a concise way to limit an obligation to delete electronic records. As you know, many contracts and letters of intent contain an obligation to destroy documents if a commercial relationship ends...

When Cultures Clash in Contract Drafting

Posted on January 14, 2009
David Miller is general counsel of Rogers Communications, the Canadian communications company. I met him in 2007 when, shortly after helping them out in the Canadian comma dispute, I was invited to give a day-long seminar at Rogers. That seminar contributed to my love affair with Canada, as David attended the entire seminar...

Mulling Over Feedback from a Law-Firm In-House Seminar

Posted on January 14, 2009
I used to be reticent about asking for feedback after giving an in-house seminar?heaven forbid that I should be a nuisance! But I now make a point of asking for such feedback. I’m acutely aware that my seminars are a mixture of bad news (Everything you know is wrong!) and good news (Here’s how to [...

MSCD Second Edition Now Available on Amazon

Posted on January 13, 2009
The first few months after the ABA publishes a book, you can purchase it only through them. Thereafter, they start to distribute it through the usual online sellers. Consistent with that, the second edition of A Manual of Style for Contract Drafting is now available on Amazon; click here to go to the Amazon page [...

The Forthright Negotiator Principle and Creative Ambiguity

Posted on January 13, 2009
In this December 2007 post I wrote about the Delaware Chancery Court opinion in the litigation between United Rentals Inc. and two Cerberus Partners acquisition vehicles. But I wasn’t so much interested in the opinion as in what had caused the confusion and how it could have been avoided, so I didn’t even mention the [...

Using the ABA?s Deal Points Studies

Posted on January 13, 2009
One of the more useful perks of being a member of the American Bar Association is that you get access to the “Deal Points Studies” prepared by the Section of Business Law’s Committee on Mergers and Acquisitions. There are various Deal Points Studies; I’ve recently consulted the 2008 Strategic Buyer/Public Target M&A Deal Points Study and [...

What to Do When the Other Side Wants to Change Your MSCD-Compliant Language

Posted on January 06, 2009
Longtime reader Michael Fleming sent me the following cry of pain: Below is a little taste of a markup I received from the other side of a deal I’m working on: MASTER SERVICES AGREEMENT This Mmaster Sservices Aagreement (”Agreement”) is dated ________, 20__ (the “Effective Date”) and is between FLEMING’S CLIENT, INC...

Which Come First, Schedules or Exhibits?

Posted on January 06, 2009
When you assemble the components of a contract that refers to schedules and exhibits, which should come first after the main part of the contract? The schedules or the exhibits? Thanks to a reader inquiry, I’ve now considered that gripping question for the first time...

I Won?t Be Using Twitter Any Time Soon

Posted on January 06, 2009
You may have heard of Twitter. It’s a free social-networking service that allows users to send updates and read other users’ updates. Updates are text-based posts of up to 140 characters in length; they’re commonly referred to as “tweets...

Proofreading Tips?

Posted on January 06, 2009
I recently received the following inquiry from reader Kathleen: I was wondering, do you have a proofreading system or any tips? Especially for when there is quick turn-around and I don’t have time to let a document sit to come back with fresh eyes (and I don’t have access to someone who can proofread for me)...

Using Parentheses Instead of ?Respectively?

Posted on January 06, 2009
In MSCD 12.328, I say that respectively serves to indicate that each item in a list earlier in a sentence is to be paired with its counterpart in a list that follows and contains an equal number of items, as in The first and second prizes went to Marie and Frank, respectively...

Seminar Discount for Members of the ABA Section of Business Law

Posted on December 10, 2008
If you’ve come here through the link in this month’s Section of Business Law eSource, welcome! While you’re here, let me tell you about a discount that I’ve arranged for section members.  I give with West Legalworks a public version of my “Contract Drafting?Language and Layout” seminar; click here for information about the seminars scheduled for the [...

In San Francisco on Wednesday, December 10, With Some Free Time

Posted on December 06, 2008
On Tuesday, December 9, I’ll be in San Francisco to give my “Language and Layout” seminar for West Legalworks. I’ll be taking the red-eye home on Wednesday, and I’ll have some time free during the day. So if your company or law firm is based in the bay area and you’d like to shoot the [...

?The Vendor? or ?Vendor??A Practical Consideration

Posted on December 06, 2008
During our conference call about the 2008 Penn Law redrafting project (see this blog post), the company lawyers noted that I had elected to refer to the other party as the Vendor rather than simply as Vendor. I explained that I prefer using the definite article, as it results in prose that’s slightly less stilted (see [...

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