“Man He’s Really Tough on People”

Above is a screenshot my daughter sent me a few days ago, showing texts she exchanged with a friend. “Hahaha” indeed.

I thought of it on reading Casey Flaherty’s post touching on my work (here). Casey accurately summarizes my, uh, lack of restraint.

I know some people wonder why I’m so in-your-face. A commentator on litigation writing once earnestly advised me to be more easygoing. “Don’t tell people they’re wrong! Instead say, ‘That’s great, but have you considered doing it this way instead?’”

Two factors underlie my approach.

First, contract language is different. It’s more limited and stylized than litigation writing, and more hinges on nuances of wording. If you’re inartful in how you word a sentence in a brief, any adverse consequences are likely to be modest. By contrast, an awkward choice in contract language and the result might just blow the deal. Or lead to years of litigation. Or both. So pussyfooting around dysfunction in contract language does no one any favors.

And second, if you want to effect change in a field as precedent-driven as contract drafting, it does no good to murmur deferentially in someone’s ear: you’ll be ignored. That’s why I tout my wares in the marketplace of ideas from atop the biggest soapbox I can find, and why I speak as plainly as I can. I have yet to encounter someone who has said, “We would have hired you to give us a seminar or rewrite our templates, but you’re too darn abrasive!” And if someone actually feels that way, they’re fooling themselves: if they’re distressed by my candor, they’d likely fall into a dead faint when faced with the messy change required to retool their contracts.

The nature of my plain-speaking depends on what provokes it. Usually when I critique a contract drafted by a big law firm or a global company, I’m clinical in demonstrating that the emperor is lacking some clothes. I figure that the emperor isn’t going to lose sleep over what I have to say, although a few times I’ve attempted to contact a company before publishing my analysis of one of their contracts.

If a company goes out of its way to claim that its suboptimal drafting is something to be emulated, or if a prominent commentor says something stoopid, a stiffer response is in order. And if you publicly denigrate my work, I give myself free reign to set things straight.

But in all this, I try not to be a jerk.

Casey Flaherty Ruminates on Contract-Drafting Dysfunction

A Manual of Style for Contract Drafting isn’t a promising candidate for a book review. Unless you’re willing to immerse yourself in detail, perhaps the most sensible approach would be to do a quick in-and-out, skating over the hundreds of pages of exegesis and exiting with a sigh of relief.

Well, thank goodness for contrarians like Casey Flaherty. In this post on 3 Geeks and Law Blog, Casey considers what I do, but he doesn’t get bogged down in minutiae, and he’s anything but glib. Instead, he uses the post as an excuse to revisit, in his inimitably discursive way, the arguments in favor of, and the prospects for, change in a hidebound profession.

Casey and I are fighting the same battle on overlapping fronts. His peroration would have put a lump in my throat, if I weren’t such a tough guy:

I know I’m fighting the good fight. But it’s trench warfare. Progress is measured in inches. I am keen on any technological advancement, tactical innovation, or strategic shift that might fundamentally alter the dynamic. When do we start capturing huge chunks of territory? I remain hopeful that the answer is soon. But I’m not counting on it and intend to keep fighting anyway.

Further Adventures in the Categories of Contract Language: How to Express Invoicing

For a while now, I’ve asked myself what category of contract language to use when providing for one party to invoice the other. Here are the possibilities:

Language of obligation: Widgetco shall invoice Acme monthly in arrears for purchases under this agreement.

That doesn’t make sense, as it suggests that Acme could bring a claim for breach if Widgetco doesn’t invoice Acme monthly.

Language of discretion: Widgetco may invoice Acme monthly in arrears for purchases under this agreement.

That’s not right either, as it suggests that each month Widgetco might say to itself, Yes, Acme owes us money, but do we really want to issue an invoice this month? Instead, invoicing is a matter of routine.

Language of policy: Widgetco will invoice Acme monthly in arrears for purchases under this agreement.

Nope. Language of policy (using will) is for stating the ground rules of a contract—stuff that is or will be, without anyone’s intervention. By contrast, invoicing requires party action.

Language of obligation used to express a condition: For Widgetco’s invoices for purchases under this agreement to be valid, Widgetco must issue them to Acme no sooner than monthly in arrears.

It’s cumbersome. And more to the point, it would be odd to have a condition to validity be the only way you address invoicing.

So here’s my current favorite:

Language of declaration: Acme acknowledges that Widgetco invoices purchasers of widgets monthly in arrears.

Boom. It reflects the reality that Widgetco’s invoicing of Acme isn’t something unique to this transaction. Instead, it’s a function of Widgetco’s invoicing system. Of course, you won’t find a single contract that uses anything like this, but that certainly doesn’t worry me.

What do you think?

(For the complete analysis of the categories of contract language, see chapter 3 of A Manual of Style for Contract Drafting.)

Don’t Give an Unhappy Contract Party a Stick to Beat You With

The recent opinion of the Delaware Chancery Court in ITG Brands, LLC v. Reynolds American, Inc., No. CV 2017-0129-AGB, 2017 WL 5903355 (Del. Ch. Nov. 30, 2017) (PDF here), stands for the proposition that making a contract a bit less clear than it could be might be all that a disgruntled contract party needs to start a stupid fight.

Here’s what the parties were fighting over:

[ITG Brands] shall use its reasonable best efforts to reach agreements with each of the Previously Settled States, by which [ITG Brands] will assume, as of the Closing, the obligations of a Settling Defendant under the PSS Agreement with each such State, with respect to the Acquired Tobacco Cigarette Brands, on the same basis as the Settling Defendants prior to the Closing.

ITG Brands argued that “prior to the Closing” modifies “shall use its reasonable best efforts”; the court disagreed.

ITG Brands’s argument is sufficiently hopeless that I can’t be bothered to consider it here. (If it’s of interest, read the opinion or this blog post by Ira Meislik.) Nevertheless, ITG Brands thought it worth waging an expensive fight over. I suspect that if the language at issue had been a bit less meandering, ITG Brands might have restrained itself. How could it have been made more concise? As I don’t have the entire contract, I’m not inclined to speculate.

Information About the Ebook Version of the Fourth Edition of “A Manual of Style for Contrat Drafting”

Because I have a PDF, I haven’t needed the ebook version of the fourth edition of MSCD (available here). But I’ve wondered how it works, and I thought you might wonder too. So here, verbatim, is what the ABA told me:

ABA books were first available in ePub format. About a couple of years ago we began to offer books in two formats: ePub and MOBI. Customers can download either version (or both). Here’s how they work:

ePub: This format can be used on virtually any reader except the Amazon Kindle. Therefore, it can be used on iPads, iPhones, Android devices, etc. There are two kinds of ePub: Adobe ePub (which I think ours are). These books that have added Digital Rights Management (DRM) through the Adobe Digital Editions system, so to read these you need to download Adobe Digital Editions to your device (it’s free) and access the book through this program. The other kind of ePub is Open ePub, where there is no DRM and the book can be read through any e-reading program or device that works with ePubs (Kindle, Nook, Google Play, iBooks, etc). I think ours are Adobe files, but I will need to check with Marisa tomorrow to make sure.

MOBI (better known as Kindle): This version works ONLY with Amazon Kindle devices, so instead of downloading the Adobe program the file just needs to be sent to the Kindle. However, if you’ve loaded the Kindle program on your PC, Apple or Android device, you can also read the MOBI version through that program.

You can’t open the file directly in a PC (such as you can with a PDF).

PART II

This information is on our FAQs page. It needs to be updated to include the MOBI option.

eBooks

What is the difference between an eBook and a PDF?
ABA eBooks use a .epub file format for an eBook reader application or a dedicated eBook reader. E-Book readers allow for text to potentially be changed in order to make reading on screen easier. By contrast, PDF files tend to maintain strict “print-like” layouts that can be read on screen or printed.

Can I print an eBook?
eBooks are designed to be read on the screen. Therefore, while eBooks can often be printed, it is generally not recommended. A small number of our eBooks may restrict printing through Digital Rights Management (DRM).

Why won’t my eBook open?
Our eBooks use a .epub format. While .epub is a widely supported file format, many applications and devices are not designed to work with it.

PART III

This is what I copied from the Brooklyn Public Library’s eBook info page. This information is based on their Overdrive platform (many libraries use this to supply eBooks to patrons that can be ePub, Open ePub, and/or Kindle), but I’ve tried to edit the non-relevant parts out.

EPUB
You can download and read all EPUB eBooks using Adobe Digital Editions (ADE) on a computer or using their app (for Android, Chromebook, iOS, or Windows 8 and up).
There are two types of EPUB eBooks: Adobe and Open EPUB.

Adobe EPUB
Adobe EPUB eBooks are protected by Adobe’s digital rights management (DRM) system. These eBooks require you to authorize your computer or device before reading them.

Open EPUB
Open EPUB eBooks aren’t protected by Adobe’s DRM system. This means you don’t need to authorize your computer or device before reading them.
Open EPUBs can be downloaded to any reading app of your choice (like iBooks or Play Books) or to Adobe Digital Editions.
EPUB eBooks automatically adjust to fit your screen and allow you to change display options like the font size, number of columns, and more.

KINDLE BOOKS
You can read Kindle Books on any Kindle device or Kindle reading app.
This information is also true for the Kindle format: eBooks automatically adjust to fit your screen and allow you to change display options like the font size, number of columns, and more.

“This Agreement Allows”

I signalled in this post that my task of compiling guidelines to the building blocks of contract language is largely done. But it will never be over, and here’s an example of that.

I recently encountered the formula this agreement allows. That sent me to EDGAR, where I found the following examples:

As a general form of contract, this Agreement allows the parties to contract multiple projects or services through the issuance of Statements of Work without having to renegotiate the basic terms and conditions contained in this Agreement.

This Agreement allows for up to three (3) shipping destinations per batch of Product.

This Agreement allows a period of seven (7) days following Employee ’s signature on the agreement during which Employee may revoke this Agreement.

RUTGERS understands and acknowledges that this agreement allows FIRM to disclose to COMPANY information otherwise protected by the attorney-client and/or work product privileges, which privileges shall be maintained and protected under the “common interest” doctrine.

Why was I particularly pleased to encounter this agreement allows? Because This agreement allows Acme to is yet another messed-up alternative to Acme may. The fourth edition of MSCD lists in table 4 more than a dozen wordier and less-clear ways of saying Acme may. Spotting instances of this has been something of a hobby; see for example this 2017 post. I would have liked to have added this agreement allows Acme to to the list, but that will have to wait until the fifth edition.

I also searched on EDGAR for this agreement permits, but the examples I found don’t grant discretion. Instead, they allude to the possibility of discretion being granted elsewhere in the contract:

Whenever this Agreement permits or requires the Funds to give notice to, direct, provide information to State Street , such notice, direction, or information shall be provided to State Street on the Funds ’ behalf by any individual designated for such purpose by the Funds in a written notice to State Street.

… or in the event that this Agreement permits any determination by the Owner Trustee or is silent or incomplete as to the course of action that the Owner Trustee is required to take with respect to a particular set of facts, the Owner Trustee may give notice …

To the extent this Agreement permits any additional acquisition of shares of Common Stock by Piton or any other Stockholder , Piton and the other Stockholders further collectively represent that …

In this context too I’d use Acme may, as in If under this agreement Acme may. I don’t think anything is gained by limiting use of may to contexts where discretion is granted, but I’ll mull that over.