Corporate & Securities Law

Next Stop on the Canada Tour: Halifax, NS

Posted on June 18, 2010
Under the auspices of my Canada partner Osgoode Professional Development, I’ve done public seminars not only in Toronto but also Vancouver, Calgary, and Ottawa. Next up is Halifax on September 22, with another in Toronto on November 3; for more information, click here...

Blog Civility: How Am I Doing?

Posted on June 14, 2010
I just received the following broadside from a reader: You choose to use your blog to tout your own book and for self-validation. I certainly hope you are not deceiving yourself that your purpose is to foster discussion or refine your own body of knowledge...

An Online Test of Contract-Language Proficiency?

Posted on June 13, 2010
Recently I’ve been pondering whether I should put together an online multiple-choice test that would allow users to assess their command of MSCD-compliant contract language. It would be a simple enough matter to come up with fifty to 100 questions; each would offer an explanation that cites the relevant discussion in MSCD...

Another Article on ContractExpress

Posted on June 13, 2010
I’ve written previously about ContractExpress, the document-assembly software developed by my partner and sponsor, Business Integrity. (See this February 2010 blog post for my Q&A with Andy Wishart, CTO of Business Integrity.) If you’d like to see what someone else has to say about the “cloud” version of ContractExpress, check out this Law Technology News [...

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?Therefor?

Posted on June 11, 2010
A reader asked me what I think about therefor. Here’s my equivocal answer: In MSCD 12.99 I note that here- and there- words such as herein and thereunder are dreary legalese. That’s why I use in this agreement instead of herein. But sometimes, a there- word allows you to avoid long-winded repetition...

?Best Efforts? Under Canadian Law: Once More, With Feeling

Posted on June 10, 2010
If you want to do business in the marketplace of ideas, you have to be prepared to repeat yourself, and you should be willing to engage in good-natured debate. So here goes: I noticed that a recent newsletter issued by the Canadian law firm Fraser Milner Casgrain contains an article on that favorite topic, the meaning [...

Airing a Slogan for a Make-Believe Ad Campaign

Posted on June 10, 2010
If I were at the helm of a well-funded trade group called “The Association of Contract-Drafting Professionals” (yeah, right) and we were rolling out an advertising campain, here’s what I might use as a slogan: Contract language is specialized...

The Connection Between Contract Drafting and Negotiation

Posted on June 03, 2010
I thought it worthwhile to scoop from the comments to my recent post on deal risk an exchange I had with Vickie Pynchon of the Settle It Now Negotiation Blog regarding the connection between drafting a contract and negotiating it. Here’s the relevant part of Vickie’s comment: I’ve been devising a negotiation class for transactional lawyers with a [...

Revisiting the Meaning of ?Closing?

Posted on June 03, 2010
In this February 2010 blog post I said that the word closing is ambiguous: Does closing mean the moment a transaction is consummated? Or does it refer to the process leading up to that moment, with contracts being finalized and signed, opinions being issued, and funds being sent whizzing through the banking system? I suggest that [...

Drafting a Contract Provision That Tells Only Part of the Story

Posted on June 01, 2010
I’m familiar with the ethics-in-drafting implications of including in a contract a provision that’s invalid. This topic is explored in Gregory M. Duhl’s article “The Ethics of Contract Drafting,” which I mentioned in this February 2010 blog post...

Adobe Offers Signature Automation

Posted on May 27, 2010
I’ve written previously about signature-automation tools. (For one, see this April 2008 blog post.) Thanks to this post at Lawyerist.com, I see that Adobe has joined the fray, with its eSignatures beta. I haven’t yet checked it out; I’d be interested to know what you make of it and, in particular, how you think it [...

How Much Deal Risk Can You Tolerate?

Posted on May 25, 2010
I concluded my recent post on “good enough” in contract drafting by distinguishing the quality trade-offs inherent in the notion of “good enough” from the question of how risk-averse you want to be in drafting and negotiating deal terms...

Pointless Use of Quotation Marks

Posted on May 24, 2010
You sometimes see quotation marks used to offset attachment enumeration, as in these two examples from EDGAR: “Excluded Property” shall mean those items of personal property either owned by Executive or to which Executive has exclusive rights and listed on Schedule “1,” entitled “Excluded Property,” which is attached hereto and made a part hereof...

A Reminder About Drafting Corporate Resolutions

Posted on May 21, 2010
It’s not often that the topic of drafting corporate resolutions comes up in my day-to-day activities. That’s why I was pleased to receive from one of the participants in my recent Chicago seminar an email that included the following: During lunch I mentioned to you that I had already put into practice the recommendations published in [...

Don?t Send Mixed Messages

Posted on May 21, 2010
During my conversation with Dan Schwartz in connection with yesterday’s post about how to express at-will employment, Dan mentioned this post on the Minnesota Labor & Employment Law Blog, by Tiffany Schmidt of Abrams & Schmidt. It describes a Minnesota Court of Appeals case in which a school director challenged his termination...

Squeezing Contract Drafting into the First-Year Legal Writing Course

Posted on May 21, 2010
Here’s a follow up to this recent post on how best to teach contract drafting at law school. The indefatigable Lisa Solomon told me about this article in the legal-writing journal Perspectives. It’s by Sue Payne, a clinical assistant professor of law at Northwestern University School of Law, and it describes how in two 90-minute classes she [...

?For Any Reason or for No Reason?

Posted on May 20, 2010
It’s been ten days since my previous post, but it feels a lot longer?please excuse my silence. It was caused by a combination of travel, short-deadline work, and a perfect storm of technology issues: Hacked website! Viruses! Hardware malfunction! There’s nothing like spending hours on the phone with distant technicians of varying competence to take [...

?Good Enough? and Contract Drafting

Posted on May 10, 2010
I’m coming late to the discussion of “good enough” in the context of legal services. I’ve encountered several blog posts that come at this issue from different perspectives, including this one by Carolyn Elefant, this one by Ron Friedmann, and this one by Wayne Schiess...

?Mere Condition?? ?Mere Covenant??

Posted on April 29, 2010
The phrases “mere condition” and “mere covenant” (and the latter phrase’s more modern equivalent, “mere obligation”) occur quite often in caselaw. A search of Lexis’s “Federal & State Cases, Combined” database found 940, 536, and 353 instances, respectively, of those phrases...

?Fully?

Posted on April 29, 2010
MSCD 16.29?31 deals with “rhetorical emphasis.” That’s the term I use to describe language you shovel into a contract provision to show that you really, really mean it. Every so often I encounter new examples of rhetorical emphasis. (See for example this August 2008 blog post about in all respects...

?Unless and Until?

Posted on April 21, 2010
Parsing redundancy in contract language can get old, because it comes in endless shape-shifting forms. But a fundamental and intriguing kind of redundancy involves conjunctions. It’s high time that I consider unless and until. It features prominently in contract language...

Typography: Revisiting My Choice of Calibri

Posted on April 21, 2010
In December 2007 I underwent a Damascene conversion and switched typefaces?for purposes of contracts and pretty much everything else?to Calibri, one of a new suite of Microsoft typefaces. Calibri has been designated the default typeface for body text in Office 2007, and the Word 2007 default font for body text is 11-point Calibri...

Stray Thoughts on Who Should Teach Contract Drafting, and How

Posted on April 20, 2010
The Conglomerate Blog has been running an interesting series of posts on the theme of “Minding our own business: How changes in the business of law might affect law schools and what law professors should be doing about it.” The most recent one is here, and is by Michelle Harner, associate professor at the University [...

Open-Source Law and Contract Drafting?A Dead Skunk in the Middle of the Road

Posted on April 19, 2010
In this item on his blog, the inestimable Ron Friedmann ponders the extent to which an “open source” approach to work product would save time and money for law departments. Here’s how Ron frames his thought experiment: So assume that confidentiality, privilege, and competitive issues matter not, that law departments contributed a significant portion of work product?generated [...

New Silicon Valley Date for ?Drafting Clearer Contracts?

Posted on April 16, 2010
West LegalEdcenter has added a Silicon Valley date to my 2010 U.S. slate of public “Drafting Clearer Contracts” seminars. It will be on December 9, at the Network Meeting Center at TechMart, 5201 Great America Parkway, Santa Clara, California...

AdamsDrafting Reader Challenge: What, If Anything, Does ?Residual Warranties? Mean?

Posted on April 15, 2010
David Munn, general counsel of contracts intelligence company Pramata Corporation and longtime friend of this blog, recently alerted me to some mystery contract language. Here’s the text of a question he posted on a couple of online forums of the Association for Corporate Counsel, to no avail: I’m reviewing some proposed website terms of use and [...

Coming Soon: ?The Structure of M&A Contracts?

Posted on April 15, 2010
If all goes according to plan, in a few months I’ll be publishing with West, as a pdf download, my booklet “The Structure of M&A Contracts.” And I’ll also be doing with West a new webcast with the same title; an M&A “name” has already agreed to join me as co-presenter...

Revisiting ?Including?

Posted on April 13, 2010
In the course of rooting around online, I encountered this 2007 analysis by Morris, Manning & Martin of a Georgia Court of Appeals case, Covington Square Associates, LLC v. Ingles Markets, Inc., 283 Ga.App. 307, 641 S.E.2d 266 (Ga. Ct. App. 2007) [pdf]...

Defining ?Magic Words? and Related Terminology

Posted on April 13, 2010
I’ve found myself using increasingly often on this blog the phrase “magic words,” so I thought it high time that I explain, to myself and anyone else interested, what I mean by that phrase. It’s in widespread use in legal circles?a search of Westlaw’s “tp-all” database retrieved over 3,500 items that refer to “magic words...

Penn Law News Item About the BCRF Redrafting Project (And Information About the Fall 2010 Project)

Posted on April 08, 2010
The “Newsroom” feature of the University of Pennsylvania Law School’s website contains this item about the redrafting project my class worked on last semester?we redrafted the Breast Cancer Research Foundation’s trademark license agreement...

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