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
19 Sunday Jun 2016
Posted in Abbreviations, Contract Law, Legal Writing
≈ Comments Off on Using Abbreviations and Definitions in 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
11 Friday Sep 2015
Posted in Bad Legal Writing, Contract Law, Legal Writing, Plain Language, Readability
≈ Comments Off on Classic Legal Writing Never Goes Out Of Style.
30 Years of the Michigan Bar Journal’s “Plain Language” Column, by Ken Adams, Adams on Contract Drafting
http://www.adamsdrafting.com/30-years-of-the-michigan-bar-journals-plain-language-column/
The Michigan Bar Journal’s ‘Plain Language’ column recently celebrated its thirtieth year. Joe Kimble, its longtime editor, wrote this piece marking the event. . . .
23 Saturday May 2015
Posted in Contract Law, Legal Writing
≈ Comments Off on Promises, Promises.
“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. . . .
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. . . .
02 Monday Mar 2015
Posted 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.
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. . . .
17 Tuesday Feb 2015
Posted in Bad Legal Writing, Boilerplate Forms, Boilerplate Forms, Contract Law, Legal Writing, Legalese
≈ Comments Off on “Know All Men By These Presents” — Who’s Getting All The Gifts?
Presents? Thank You Very — Oh, by Raymond Ward, the (new) legal writer blog
http://raymondpward.typepad.com/newlegalwriter/2012/01/presents-thank-you-very-oh.html
Every time I see the silly phrase ‘Know all men by these presents,’ I think of Christmas. Perhaps a statement the Magi wanted to make about their presents for the Christ child. Nevertheless, I’m no expert on drafting contracts: on that subject, I defer to Ken Adams, who riffs on the silly phrase in this post.
Can I get a witnesseth?
16 Monday Feb 2015
Posted in Breach, Contract Law, Intentional Promise, Performance
≈ Comments Off on Impose An Obligation On Someone To Control Something They Can’t Really Control – What’s The Point?
A Reminder About “Shall Cause,” by Ken Adams, Adams On Contract Drafting
http://www.adamsdrafting.com/a-reminder-about-shall-cause/
Reed Smith has published an inaugural issue of Contract-Drafting Bulletin. One item was of particular interest to me. It’s about an October 2014 opinion from the U.S. District Court for the Southern District of New York, World of Boxing LLC v. King (PDF copy here).
Here’s the gist of it: In May 2013, boxers Guillermo Jones and Denis Lebedev fought, with Jones winning. But after the bout Jones failed a drug test and was stripped of the win. In January 2014, boxing promoters Don King and WOB entered into an “agreement in principle” in which King promised to “cause Jones [ ] to participate” in a rematch. But before the rematch, Jones failed another drug test, so Lebedev withdrew.
In the resulting litigation, WOB claimed that King breached their contract by failing to cause Jones to participate in the match. The court agreed (footnotes omitted):
If Jones could not participate in the bout, it follows a fortiori that King could not have caused Jones to participate in the bout. Therefore, King breached the Agreement.
King protests that this interpretation of the Agreement yields “unreasonable and illogical” results. It would require of King “nothing less than … personal supervision of Jones’s every action between the execution of [the Agreement] and the scheduled date of the [bout against Lebedev].” Indeed, in order to avoid liability, King avers that he would have had “to imprison Jones to prevent him from having any access to a banned substance”—clearly an untenable outcome.
While these arguments might have force, they are addressed to the wrong issue. King could be right: under the circumstances, it is possible that his contractual obligations were too onerous to be enforceable. But that question goes to whether King’s failure to perform may be excused, not to whether King in fact failed to perform. As to the latter, Jones’s disqualification plainly put King in breach.
The court then went on to hold that King’s impossibility defense didn’t excuse his breach.
So, what does this case have to say to contract drafters? . . . .
30 Friday Jan 2015
Posted in Contract Law
≈ Comments Off on Write Contracts That Avoid Confusion When Circumstances Change.
Being Specific in Contracts Can Help Avoid Confusion When Circumstances Change, by Ken Adams, Adams On Contract Drafting
Recently Eric Goldman (otherwise know as @ericgoldman) alerted me to In re SuperMedia, Inc., an opinion by the Delaware U.S. Bankruptcy Court. (Go here for a PDF copy.) It has a lesson to offer regarding how to avoid confusion over whether contract terms apply to changed circumstances. . . .
29 Monday Dec 2014
Posted in Boilerplate Forms, Contract Law, Legal Writing
≈ Comments Off on Bet You Can’t Guess Ken Adams’ Opinion of “Boilerplate” Contract Forms.
Tags
Adams on Contract Drafting, Boilerplate Forms, Clio, Contract Law, EDGAR, Ken Adams, Legal Writing, LegalZoom, Rocket Lawyer
The Sad Truth About Promiscuous Copying of Contract Language, by Ken Adams, Adams on Contract Drafting
I recently came across this blog post on Clio’s website. Clio is software that handles time and billing, calendaring, and collaboration, but this blog post is about something else—how law firms can use ‘commercial legal forms.’ It suggests three possible uses: You can copy them. You can resell them. Or you can create and sell your own. Here’s my take on the first of those suggestions.
The author says that if you’re looking to copy ‘boilerplate,’ you can get it from three sources:
- from your own files
- from ‘the same vast library of forms and templates that the public now enjoys,’ which ‘are often crafted by experienced lawyers’
- from forms sold by the likes of LegalZoom and Rocket Lawyer, one advantage being that checking those forms would ‘take a fraction of the time that would have been spent of compiling a rough draft from scratch’
Regular readers will know that I find the latter two options depressing. Good luck relying on anything you find in, say, the great flea market that is the U.S. Securities and Exchange Commission’s EDGAR system. As for relying on the LegalZooms and Rocket Lawyers of the world, go here for my critique of a LegalZoom contract and go here for my critique of a Rocket Lawyer contract.
The sad fact is that plucking contract language from the random mass and then checking it and revising it appropriately requires serious skill and is time-consuming, despite what the Clio author says. Given the cold realities of quality control, the something-for-nothing appeal of promiscuous copying of contract language is an illusion.
Copying contract language without that sort of scrutiny requires a leap of faith; if you’re putting your faith in some contract you found in a few minutes of rooting around online, you’re screwed before you even start.
Incidentally, given that Clio is now offering advice about where to copy from, I’ll now start writing about time-management software! Not really.
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.
25 Saturday Oct 2014
Posted in Contract Law, Legal Writing, Recent Links and Articles
≈ Comments Off on Compilation of Ken Adams’ Articles on Contract Drafting.
Tags
Adams On Contract Drafting Blog, AdamsDrafting Blog, Contract Law, Ken Adams, Legal Writing, The Koncise Drafter
http://www.adamsdrafting.com/writing/ken-adamss-articles/
In addition to Ken’s posts from February 2013, this blog contains Ken’s posts from The Koncise Drafter (from December 2010 to February 2013) and from the AdamsDrafting blog (from May 2006 to December 2010).
10 Monday Feb 2014
Posted in 2nd Circuit Court of Appeals, Bad Legal Writing, Contract Law, Legal Analysis, Legal Writing, Legalese
≈ Comments Off on Is It Herein, Hereunder, Or Over Yonder?
Tags
Adams On Contracting Blog, Ambiguity, Bayerische Landesbank New York Branch v. Aladdin Capital Mgmt. LLC, Contract Law, Herein, Hereunder, Ken Adams, Legal Writing, Paul Hastings
“Herein” (And I Need A Label For This Kind Of Ambiguity), by Ken Adams, Adams on Contract Drafting Blog
Ken Adams explains why to avoid “herein,” “hereunder,” and antecedent ambiguity when drafting contracts. -CCE
I’ve previously entertained you with court opinions addressing confusion over what part of a contract is being referred to in a contract provision. Who can forget the confusion over a “hereunder”? (See this post). Or over “except as provided below”? (See this post.)
Well, I have another treat for you. (Yes, I know, I’m too generous.)
The case is Bayerische Landesbank, New York Branch v. Aladdin Capital Mgmt. LLC, 692 F.3d 42 (2d Cir. 2012) (PDF here). (I learned about it from this Paul Hastings newsletter.)
25 Saturday Jan 2014
Posted in 2nd Circuit Court of Appeals, Contract Law, Legal Writing
≈ Comments Off on Proper Punctuation Matters, Especially When Drafting Contracts.
Tags
Adams On Contract Drafting Blog, American International Group Inc., Bank of America Corp., How Things Work, Julia Layton, Ken Adams, Legal Writing, Punctuation, United States Court of Appeals for the Second Circuit
My Forthcoming Article, “Bamboozled by a Comma: The Second Circuit’s Misdiagnosis of Ambiguity in American International Group, Inc. v. Bank of America Corp.” by Ken Adams, Adams On Contract Drafting Blog (to be published in 16 Scribes J. Legal Writing (forthcoming 2014).
It may sound picky but, as Ken Adams’ example illustrates in this post, proper punctuation matters. A misplaced comma can completely change the meaning of a sentence.
A refresher on how to use commas properly never hurts. Julia Layton explains “10 Completely Wrong Ways to Use Commas” on How Stuff Works. -CCE
http://people.howstuffworks.com/10-wrong-ways-to-use-commas.htm
18 Monday Nov 2013
Posted in Bad Legal Writing, Contract Law, Legal Writing, Legalese
≈ Comments Off on Ending Confusion To End Litigation.
Tags
More Antecedent Ambiguity: “Thereof,” by Ken Adams, Adams on Contract Drafting
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
30 Wednesday Oct 2013
Posted in Bad Legal Writing, Legal Writing
≈ Comments Off on Contract Gobbledygook
Tags
A New Case Involving “Notwithstanding,” by Ken Adams, Adams on Contract Drafting (with hat tip to Raymond Ward, the (new) legal writer!)
“Arising Out Of Or Relating To?” No, Thank You, by Ken Adams, Adams on Contract Drafting
