Adams on Contract Drafting

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Ken Adams

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Recently I devoted this post to John F. Coyle’s article on governing-law provisions. I’ve now gotten my hands on his recent article Interpreting Forum Selection Clauses (here). (I call them “jurisdiction provisions.” More on that later.) In John’s words, jurisdiction provisions are “contractual provisions in which the parties agree to litigate their disputes in a specified forum.” Here’s an example: If either party brings against the other party any proceeding arising out of…
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It’s time for me to remind you all of a modest but essential element in my legaltech toolbox—the Numbering Assistant, a Word add-in by PayneGroup. Why is the Numbering Assistant important to me? Because it allows me, a Word styles doofus, to quickly and easily apply to a contract either the MSCD hanging-indent scheme or the MSCD first-line-indent scheme, each offered in “Articles” and “Sections” versions. A simple way for an organization…
This recent post was about John Coyle’s great article on governing-law provisions. But I didn’t mention in that post the part of the article that endorses the notion that courts should interpret contract provisions consistent with what a majority of lawyers think they mean. Here’s how the article summarizes that notion (footnotes omitted): The Article’s second contribution to the literature is to determine whether these canons produce results that are broadly consistent with the expectations…
I’m doing what I can to advance the cause, but we’re all fortunate to have Glenn West plugging away, posting his analyses at such a rate that I have a hard time keeping up. For his collected oeuvre, go here. Today’s post is inspired by something from his archives, this 2016 post about whether a provision in which nonparties are said to release a party from all claims is in fact enforceable against those…
In 2015 I did these three posts about governing-law provisions. Well, it’s time to look at the subject again, thanks to a law-review article by John F. Coyle of University of North Carolina at Chapel Hill. The article is entitled The Canons of Construction for Choice-of-Law Clauses; go here for a PDF. Professor Coyle is to be congratulated for writing that most rare thing, a useful law-review article about contract boilerplate. But many of you…
I love it when I write about something that doesn’t make sense, and caselaw comes along to show that not only does it not make sense, it can also lead to a messy, expensive fight. Today’s topic is the practice of having lawyers sign settlement agreements under the notation APPROVED AS TO FORM AND CONTENT. I wrote about it in this 2008 post, and here’s what MSCD 5.70 says: An unusual aspect of settlement…
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The summer 2019 issue of The Business Lawyer—the law review published by the Business Law Section of the ABA—contains my article Interpreting and Drafting Efforts Provisions: From Unreason to Reason. Go here for a PDF. No one has ever offered an even halfway serious attempt to explain a distinction between different efforts (or endeavours) provisions, or lack of a distinction. Into that void steps this article, “delexicalization,” corpus linguistics, and all. Writing this sort of…
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As promised, go here for information about my 14 November 2019 “Drafting Clearer Contracts” seminar in Seoul, organized by my partner LAWnB, a Thomson Reuters entity. As usual, the registration information is in Korean, but go here for a brochure in English. I’m looking forward to it, of course. I always enjoy my visits to Seoul. Koreans might find of interest my 2014 two-part article in Korean, English Language Contracts: Reducing the Clutter and Confusion…
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Bryan Garner is a big name in legal lexicography, litigation writing, and guidance on general English usage. He has a new book out, on contract drafting. It’s called Garner’s Guidelines for Drafting and Editing Contracts, and it’s not good. But first, why write a review? Because using any reference work requires a leap of faith, and book reviews help readers decide whether a leap of faith is justified. But I’ve made a career out…
I noted with interest an article entitled “Including Without Limitation” (in this issue of The Transactional Lawyer), by Stephen L. Sepinuck of Gonzaga University School of Law. I’ll discuss later in this post the part about including without limitation. But let’s start with what is for me the more interesting part—the last two columns, in particular the following description of collateral: All of Borrower’s red fruits, including, without limitation, tomatoes. Does the collateral include tomatoes…