27 Thursday Sep 2018
Posted in Boilerplate Forms, Contract Law, Legal Writing
How I Would Go About Redrafting Your Templates, by Ken Adams, Adams On Contract Drafting Blog
http://www.adamsdrafting.com/how-i-would-go-about-redrafting-your-templates/
Ken Adams has made a “standing offer.” If you send him one of your contract templates, he will take the time to edit it.
Wow. Even if you are the best contract writer in the world, why wouldn’t you take Mr. Adams’ up on such a generous offer? Opportunities such as this do not come along every day. Thank you, Mr. Adams! -CCE
26 Thursday May 2016
Posted in Contract Law, Corporate Law, Grammar, Legal Analysis, Legal Writing
≈ Comments Off on The Proper Use and Interpretation of “Shall” and “Will.”
Tags
Contract Writing, Elizabeth Ruiz Frost, Grammar, Legal Writing, Oregon State Bar Bulletin (February/March), Use of "Shall" and "Will"
The Legal Writer – The Problem with Shall, by Elizabeth Ruiz Frost, Oregon State Bar Bulletin (February/March)
https://www.osbar.org/publications/bulletin/12febmar/legalwriter.html
When we draft legal documents for our clients, we aim to articulate who can do what and when. Those rights and obligations are established through words of authority. But in legal writing, inconsistent use and interpretation of some words of authority can create ambiguity in our documents.
The word shall can be particularly troublesome. Drafters often use shall in place of other words like does, will, should, might or may. If we use shall sometimes to connote a mandatory term, at other times to connote a discretionary term, and once in a while to connote a future event, how can a reader accurately determine our intent? When a word of authority is used inconsistently, courts are left to determine the word’s meaning. To avoid squabbles over ambiguous terms, think through each word of authority that you write and use these words consistently.
22 Sunday May 2016
Posted in Contract Law, Corporate Law, Grammar, Legal Writing, Punctuation, Readability
≈ Comments Off on How To Use “That” and “Which,” And Why You Should Care.
Tags
Better Writing Skills, Contract Writing, Grammar, Legal Writing, That, Which, Writing Resources From Scribe Consulting
Using That and Which Correctly, Better Writing Skills, Writing Resources From Scribe Consulting
http://www.betterwritingskills.com/tip-w022.html
An easy-to-understand example of the difference between “that” and “which” and why, in legal and business writing, it is important to use each correctly. It also provides an excellent example of how grammar and punctuation mistakes can dramatically change the meaning of your document. -CCE
For more writing tips on common grammar errors, go to http://www.betterwritingskills.com/writing-tips.html.
09 Wednesday Sep 2015
Posted in Boilerplate Forms, Contract Law, Employment Contracts, Employment Law
≈ Comments Off on A Different Kind of Employment Contract.
The Employment Contract Between Bilbo Baggins and the Dwarves, by Louis J. Sirico, Jr., Legal Skills Blog
Louis J. Sirico, Jr., posted this interesting observation about employment contract law. If you have not read the book or seen the movie, The Hobbit, by J.R.R. Tolkien, this example is going to sound a bit odd.
Before Bilbo Baggins is hired by dwarves to join a quest to conquer a dragon and take back a mountain full of gold, he must sign an unique employment contract. In the book, Mr. Tolkien wrote a fifty-three word employment contract. It is easy to read and understand.
In the movie, the director wanted something more dramatic. The writer took on the challenge and looked to real contracts including his own. The result is a doozy. -CCE
02 Saturday May 2015
Posted in Contract Law, Legal Writing, Numbers
≈ Comments Off on Why It’s A Bad Idea To Use Both Words and Digits When Writing Numbers.
Tags
Adams on Contract Drafting, Contract Writing, Ken Adams, Legal Writing, Strunk and White, Writing Numbers
Revisiting Use of Words and Digits to Express Numbers, by Ken Adams, Adams on Contract Drafting
http://www.adamsdrafting.com/revisiting-use-of-words-and-digits-to-express-numbers/
Some legal writers advocate writing out a number and then adding digits in parentheses. In this post, Ken Adams argues against this practice. If anything, it makes what your writing more verbose and harder to read regardless of the type of document.
Most people do not argue with Strunk and White. Its 3rd edition says to spell out numbers under 100, and use digits for numbers 100 and above. The 4th edition, which came out in 2000, specifically admonishes against spelling out numbers, unless they are used in dialogue. -CCE
More often than not, contract drafters use words and digits to express numbers, as in no later than thirty (30) days after the Closing. That’s a bad idea, for two reasons:
First, it creates clutter that distracts the reader. And the more numbers a contract contains, the greater the distraction.
And second, it violates a cardinal rule of drafting—Thou shalt not state the same thing twice in a contract! Whenever you say the same thing twice, you introduce a potential source of inconsistency. . . .
09 Tuesday Dec 2014
Posted in Contract Law, Legal Writing
≈ Comments Off on Is It “Shall Not . . . Unless” Or “May . . . Only If”?
“Shall Not … Unless” Versus “May … Only If” (Updated!), by Ken Adams, Adams On Contract Drafting Blog
One of the privileges of blogging is that it gives you the opportunity to talk utter BS without doing much damage. A case in point is this post, originally published on August 4, 2014.
To recap, the issue was whether one of the two following alternatives was preferable to the other:
Acme shall not sell the Shares unless Widgetco consents.
Acme may sell the Shares only if Widgetco consents.In an August 6 update I opted for the version with shall not, saying that it avoids the uncertainty inherent in the version using may … only. Well, I’m here to tell you that that’s incorrect, in that both versions incorporate uncertainty.
In the version with shall not, the question is what category of contract language applies if Widgetco consents. Our old friend the expectation of relevance (more about that here) suggests that Acme may sell the Shares if Widgetco consents, but it’s conceivable that it might instead be obligated to sell the Shares if Widgetco consents.
And in the version with may . . . only, the expectation of relevance suggests that Acme may not sell the Shares if Widgetco doesn’t consent, but it’s conceivable that it might instead be obligated to sell the Shares if Widgetco doesn’t consent.
So in terms of uncertainty, there’s nothing to choose between the two. To eliminate that uncertainty you’d have to say the following:
Acme shall not sell the Shares, but it may sell the Shares if Widgetco consents.
(You could say instead Acme shall not sell the Shares unless Widgetco consents, in which case Acme may sell the Shares, but I have a slight preference for the version using except, as it’s shorter.)
Would I go to the trouble of eliminating the expectation of relevance? I think so, but I acknowledge that doing so would be pretty hard-core.
If you don’t want to eliminate the expectation of relevance, which of the two original options would I go for now? Still the version with shall not. The default position is that absent contract restrictions, one may do stuff, so it follows that it’s the prohibition that has teeth; I’d lead with it.
