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Tag Archives: Contracts

Why We Need Clear Legal Writing in Contracts.

20 Monday Feb 2017

Posted by Celia C. Elwell, RP in Bad Legal Writing, Contract Law, Legal Writing, Plain Language

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Aird & Berlis, Contracts, Legal Writing, Plain English, Sherry Altshuler

Sesquipedalianism and an Expatiation Upon Its Antithetical Impact on Interpersonal Communications: Big Words and Why They’re Bad, by Sherry Altshuler, Aird & Berlis, LLP (with hat tip to Louis J. Sirico, Jr., Legal Skills Prof Blog)

http://www.airdberlis.com/Templates/Blog/Entry.aspx?Page=71&ID=11120

This post on using plain English does what good legal writing should. Rather than telling you that big or complicated words are a sure way to lose your reader, it shows you with a wonderful example.  I love “show, don’t tell.” It also provides an excellent list of good legal writing tips. This one is worth a bookmark. -CCE

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Contract Interpretation and Ambiguity.

04 Sunday Dec 2016

Posted by Celia C. Elwell, RP in Appellate Writing, Contract Law, Legal Writing

≈ Comments Off on Contract Interpretation and Ambiguity.

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Contracts, ContractsProf Blog, Legal Writing, Stacey Lantagne

Judicial Disagreement Over Contract Ambiguity: When Are Things OBVIOUS? By Stacey Lantagne, ContractsProf Blog

http://bit.ly/2f3Dtj5

We’ve been talking about contract interpretation in my Contracts class lately and I’m always struck by how many cases involve a lower court ruling of ambiguity and then an appellate court reversal of that ruling, because it always strikes me as such a funny thing. The very definition of ambiguity would seem to be ‘multiple people disagreeing on the meaning of the word,’ but the appellate court decisions in those cases necessarily have to dismiss the reasonableness of the lower court’s understanding of the meaning in order to assert that the meaning is SO OBVIOUS.

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The Quintessential Contract Drafting Checklist.

23 Saturday Jul 2016

Posted by Celia C. Elwell, RP in Contract Law, Legal Analysis, Legal Writing

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Contracts, Glen D. West, Legal Skills Prof Blog, Legal Writing, Louis J. Sirico Jr., State Bar of Texas In-House Counsel Course, William P. Statsky

A Contract Drafting Checklist, posted by Louis J. Sirico, Jr., Director of Legal Writing, Professor of Law, Villa Nova University School of Law, Legal Skills Prof Blog (with hat tip to William P. Statsky)

http://lawprofessors.typepad.com/legal_skills/2016/07/a-contract-drafting-checklist.html

This is a gem.  It is specifically targeted for anyone interested in contract law. If contract law is not your area, I encourage you to read it anyway – and bookmark it. -CCE

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Using Abbreviations and Definitions in Legal Writing.

19 Sunday Jun 2016

Posted by Celia C. Elwell, RP in Abbreviations, Contract Law, Legal Writing

≈ Comments Off on Using Abbreviations and Definitions in Legal Writing.

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Adams On Contract Drafting Blog, Contracts, Ken Adams, Legal Writing

Don’t Use Definition-First Autonomous Definitions, by Ken Adams, Adams on Contract Drafting Blog

http://www.adamsdrafting.com/dont-use-definition-first-autonomous-definitions/

Ken Adams provides excellent examples of how to use an abbreviations and definitions. Use this for contracts, but keep in mind that it also works in pleadings, motions, discovery, etc.

When you use abbreviations and definitions for a person, a law, an event, or contract, it makes your writing tighter and more concise. It makes sense to abbreviate lengthy names, but take which definition you pick. While striving for a way to make your writing less wordy, don’t let the abbreviation or definition de-humanize your client or overly sanitize your client’s case. -CCE

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Legal Writing Tips Honey Pot.

29 Wednesday Jul 2015

Posted by Celia C. Elwell, RP in Bad Legal Writing, Business Memorandums, Contract Law, Editing, Grammar, Legal Writing, Punctuation

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Contracts, Grammar, Legal Writing, Legal Writing Tips, Legal Writing Tips for Attorneys and Judges, Punctuation, Ross Guberman

Writing Cheat Sheets for Your Summer at the Screen, by Ross Guberman, Legal Writing Tips for Attorneys and Judges

http://legalwritingpro.com/blog/writing-cheat-sheets-for-your-summer-at-the-screen/

There is something here for everyone – student, newbie, or seasoned professional. Writing tips for memos, grammar, punctuation, biggest partner complaints, checklist for drafting contracts, and more. Many thanks, Mr. Guberman! -CCE

As a writing trainer for many of the nation’s top law firms with about 500 summer-associate workshops under my belt, I’ve learned first-hand where summer associates go wrong and how to help them succeed.

Here are some questions that will likely come up over the summer, along with links to some free online resources. . . .

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Promises, Promises.

23 Saturday May 2015

Posted by Celia C. Elwell, RP in Contract Law, Legal Writing

≈ Comments Off on Promises, Promises.

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Adams On Contract Drafting Blog, Contracts, Ken Adams, Legal Writing

“Promises That” and “Promises To, by Ken Adams, Adams On Contract Drafting Blog

http://www.adamsdrafting.com/promises-that-and-promises-to/

For the sheer heck of it, let’s look at how the verb promises is used in contracts. . . .

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Ken Adams Shares What It Takes To Be A Great Contract Writer.

02 Monday Mar 2015

Posted by Celia C. Elwell, RP in Boilerplate Forms, Boilerplate Forms, Contract Law, Editing, Legal Writing, Legalese, Readability, Style Manuals

≈ Comments Off on Ken Adams Shares What It Takes To Be A Great Contract Writer.

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Adams on Contract Drafting, Contracts, Ken Adams, Legal Drafting, Style Manuals

What It Takes to Be a Great Contract Drafter, by Ken Adams, Adams On Contract Drafting

http://www.adamsdrafting.com/what-it-takes-to-be-a-great-contract-drafter/

If you write or work with contracts, this is a “must read” post by Ken Adams. Drafting a good contract is a special type of legal writing. A good, solid contract is a work of art. Also, please don’t ignore the Comments at the end of the post. There’s more good information there as well. -CCE

Here’s what it takes to be a great contract drafter:

Know the deal mechanics. As a drafter, it’s your job to express the transaction in a way that advances your client’s interests most effectively. You can’t do that unless you’re aware of the full range of options for structuring the deal. I don’t mean to suggest that you yourself have to possess that information—it’s enough if you’re able to pick the brains of people with that information.

Know the law. With some transactions, there’s no need for the law to rear its head in the contract. In other transactions, it would be appropriate, or necessary, for the law to feature in the contract. I discuss that in this 2013 post. As drafter, it’s your job to figure out what role, if any, the law plays in your transaction. Again, it’s enough if you can get that information from others.

Follow a comprehensive style guide. You don’t follow a comprehensive set of guidelines for the building blocks of contract language? Sorry, you’re not a great drafter. You’re not even a good drafter. Instead, you’re parroting whatever contract language you copy, which is likely dysfunctional. You’re following conventional wisdom, which more often than not is bogus. Don’t throw at me your education, your reputation, your long list of publications, your compensation, your track record as a dealmaker. They’re all beside the point. Of course, the only set of guidelines out there is A Manual of Style for Contract Drafting, but don’t hold that against me. I’m not stopping anyone else from producing their own comprehensive set of guidelines. And following my guidelines isn’t rocket science. . . .

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Is It “Shall Not . . . Unless” Or “May . . . Only If”?

09 Tuesday Dec 2014

Posted by Celia C. Elwell, RP in Contract Law, Legal Writing

≈ Comments Off on Is It “Shall Not . . . Unless” Or “May . . . Only If”?

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Adams On Contract Drafting Blog, Contract Writing, Contracts, Ken Adams, Legal Writing

“Shall Not … Unless” Versus “May … Only If” (Updated!), by Ken Adams, Adams On Contract Drafting Blog

http://tinyurl.com/mdnboct

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.

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Ending Confusion To End Litigation.

18 Monday Nov 2013

Posted by Celia C. Elwell, RP in Bad Legal Writing, Contract Law, Legal Writing, Legalese

≈ Comments Off on Ending Confusion To End Litigation.

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Contracts, Ken Adams, Legal Writing, Legalese

More Antecedent Ambiguity: “Thereof,” by Ken Adams, Adams on Contract Drafting

http://tinyurl.com/n7fup2u

Do we use legalese because we think it simply sounds “legal”? Why do we choose legalese over plain, clear writing? There is no statute, court rule, or case law that requires it. These words are not a legal term of art. Why do we cling to it with such a passion? CCE

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Contract Gobbledygook

30 Wednesday Oct 2013

Posted by Celia C. Elwell, RP in Bad Legal Writing, Legal Writing

≈ Comments Off on Contract Gobbledygook

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Contracts, Ken Adams, Legal Writing

A New Case Involving “Notwithstanding,” by Ken Adams, Adams on Contract Drafting (with hat tip to Raymond Ward, the (new) legal writer!)

http://perma.cc/0zV6mAk3xm5

“Arising Out Of Or Relating To?” No, Thank You, by Ken Adams, Adams on Contract Drafting

http://perma.cc/0i4M2PnNost

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