Lecture for Chapter 17: Contract Drafting (LGLA 1351)

Lecture for Chapter 17: Contract Drafting (LGLA 1351)


welcome to this presentation about
drafting a contract we’re going to think through the various issues that you
ought to consider when you’ve given that been given the task of drafting a
contract this can arise obviously in lots of different circumstances it can
arise when a particular deal is being made or perhaps when a case is being
settled those are two common situations but by no means the only categories so
let’s begin absent too far here when you start a contract it’s going to be very
rare that you have a blank sheet of paper and you just kind of start from
scratch with no models to work from it is usual to have a combination of tools
you’ll probably have a similar deal that has happened in your law firm that you
will use as a starting point and then you will have perhaps additional clauses
boilerplate is oftentimes what this is called that you may take from other
contracts or from the form book and those you’ll be interested in inserting
obviously in all cases these items are going to have to be drafted carefully
redrafted revised edited to fit into the particular document that you’re doing
using forms is a tremendous time saver and it also helps you get the best
product the reality is that there’s thousands of different moving pieces in
the contract and so the odds of you starting from scratch and being able to
nail all of those thousand pieces is not very good but if you’re using a contract
that has been carefully thought through and is is part of a kind of a coherent
piece and then you only think about the parts you’re changing it’s very likely
this you’ll get you’ll get the benefit of all those prejudgments and of course
if you get to a particular clause and you’re like I have no idea why this is
in there I have no idea why it’s phrased the way that it is it’s probably a good
idea to italicize that or put it in highlight and ask the attorney to
evaluate is that something we need to keep or that something needs to go away
is it something we need to rewrite there can be lots of different things going on
in that type of language and so since you have this it’s better probably to
keep the stuff you’re not sure about and be hesitant to throw away stuff until
you are a confident that’s not necessary either for this deal or just generally
so of course when you’re drafting the contract one or actually let me say so
you’re going to start not from a clean sheet of paper you’re going to start
from probably multiple documents and this does number one save a lot of time
and also to makes it gives you a better final product but there is a big risk
with this and I see this all the time with students who are submitting
projects from which they have worked from some other documents so this is a
document I provide us and let’s fund us is the document they found elsewhere but
what they do is they forget to carefully proofread it and so let’s say I gave
them a deal involving Bob and Teresa entering in the contract and yet the
people in my story that the assignment has to do with Larry and Gwen well as
I’m grading the assignment oftentimes I’ll see Bob and Teresa’s name in it
or I’ll see a Shi where there should be a he or a he where there should be a see
she it requires very careful meticulous checking if you aren’t going to do that
careful checking and you can’t use a model because you will end up with an
even worse document than if you’d start from scratch if you don’t check to make
sure your pronouns are correct to make sure that you’ve fully changed all of
the parties names this is hugely hugely important now obviously in a class
assignment in some sense what does it matter ok I failed X I didn’t proofread
it carefully no big deal in some sense there is no big deal but in the real
world when your client is signing on the dotted line and there’s real money at
risk you may have caused your client’s a dollar maybe even more than thousands of
dollars you may have you expose yourself to a malpractice claim or your attorney
to a malpractice claim you may be out on your ear with that kind of mistake so
there are the potential for really really big repercussions and so that’s
why when you use a form you have to think to yourself ok I’m using this form
so that means I’m committing to a significant amount of time of carefully
reading this document going word by word by
word by word it saves time in the long run but it is a necessary part of that
time saving is that commitment to doing the revisions I can’t emphasize that to
you enough it is absolutely crucial okay but let’s assume that you’ve signed up
for that you wanted okay yeah Berger I get it at the end I’m gonna have to
spend a significant amount of time proofing but what do I do with these
models that I have well there are some things to think about as you get started
one thing you’ll want to think about this will help you decide which models
to use is the format that you want to use some deals are really really huge I
mean it’s not unusual to have a 100 plus page contract there are other deals that
you can get the whole deal in a single page the format of those documents are
going to vary more than just the actual number of pages how you organize it how
many different moving pieces there are are you gonna have an index or you can
have a table of contents how are you gonna arrange the stuff where you’re
gonna put your defined terms are you going to put them at the beginning are
you gonna put them at the end are you going to intersperse them throughout the
document those are all factors to consider part of the decision-making
process is going to be the length of the document part of that is going to be
with the industry custom is in this particular area another part is going to
be with a preference of your attorney is maybe with the preference of the client
is maybe with the preference of opposing counsel is all of those are legitimate
factors in deciding how you’re going to format it it’s a good idea to seriously
think about those issues in many cases you already have some idea about the
right way to go for one thing you probably have at least one model and it
probably makes sense to use that model as a starting point but you’ll
definitely want to think through the format another issue is of course the
purpose why are you in why you creating this document what is the reason for the
document what is the reason for the contract you may think well why do I
need to know that I just need to know what the deal is we’ll see later how
that could be important in how the contract is interpreted but we’ll get to
that more detail a couple minutes the subject obviously you know the subject
in order to draft the contract consider the information sources that you have in
most cases it’s going to your client it could be the attorney but
in some cases it’s going to be the opposing counsel they use the word
opposing counsel somewhat care somewhat carelessly I guess you could say we use
that term when we’re talking about litigation but it doesn’t really fit
here because usually unless we’re settling a lawsuit usually when you’re
into a contract the parties aren’t in opposition to each other there is in
some sense coming together of working together of looking at this deal is good
for both sides and that both sides can be benefited by the particulars of the
deal so while there is some some element of opposition for example if I’m selling
you something in this contract well every dollar more I charge you as a
dollar I get to keep and it’s one fewer dollar you have in your pocket so in
some sense there is a zero-sum game involved but in other senses there may
not be a zero-sum game involved for example I might have four different cars
I’m selling they’re all the same make and model they just happened before
different colors honestly I don’t care which one I sell to you but you care you
care which color you get and so in that situation specifying the color in the
contract getting it right and describing the one that you want isn’t a zero-sum
game you gain the color you want doesn’t disadvantage me in any way and so
thinking through how those issues are going to play out and where to get the
information source or whether where’s going to be the right place to get the
information is an important part of that process you know in a perfect role
you’ll be in the room when the deal is being created and so you’ll be able to
take copious notes and be able to do the deal from that standpoint if you’re not
present then hopefully you’ll be given very careful notes from the people who
are present in the meeting oh that’s good but it’s a little less good because
sometimes the note taker may not have known exactly precisely what needed to
be captured in the deal but it can be a good starting point but even with
careful notes and even with being present there’s going to be some issues
when you start drafting that you often hasn’t realized hey wait a second no one
even thought about this issue what do we want to do about this and so then there
will be the time for you to go back most likely to the attorney and say how do
you want us to do this the attorney may say well let’s draft it this
way and see what everybody’s comments are to it or the attorney might say good
question let’s talk to our client to see what his or her preferences are so there
can be lots of different paths that we get when there are those open issues
industry customs can also be a way to resolve outstanding issues there may be
a certain way that this industry usually resolves the question does that mean
that we have to follow industry custom no but it probably means if we don’t
specify than the industry custom will control so it’s important to know the
industry custom even if we don’t intend to follow it the audience are we writing
to other attorneys who will be fulfilling the terms of this contract or
we are we writing this contract so somebody with a high school diploma or
perhaps even less than a high school diploma
perhaps somebody whose first language isn’t English can implement these terms
those are two very different audiences it’s relatively easy to write a contract
for the legal professional to be able to implement it’s pretty difficult to write
a contract that somebody who has limited english reading skills can understand
the deal and can do what needs to be done so you have to consider kind of
where the audience is and who’s going to do that that could also impact how we’re
going to organize the information there may be some sections where the attorneys
and paralegals are going to be involved in doing stuff there may be other
sections where someone in a warehouse is locating the items and he or she needs
to have that information it may make sense to organize the material so that
that section this is the section where the warehouse workers get the data they
need had that all in one call it location then have another section where
other professionals are involved with it wouldn’t make sense for the warehouse
worker to turn to page 14 73 and 297 that’s not efficient better to have that
all in one place probably with some clearly had clearer headings to have to
point the reader to the right place you want to make clear what limitations
exist you know are there certain deadlines that have to be followed are
there certain situations that we’re going to handle in
particular way who needs to do what when where why and how that’s going to play
out you also want to give other people the opportunity sometimes to edit and to
redraft we’ll talk about how strategically that can be a really good
idea in most cases you’ll find that one side does most of the contract drafting
and that the other side revises and maybe has responsibility for just a very
few sections it doesn’t have to be that way but there’s some advantages to
having one side draft for one thing the the decide this drafting kind of feels
well we get to put our spin on this deal on this contract that’s that’s one
advantage to the side who agrees to do it another advantage is that the
document is going to hang together well if one person is drafting it all the
component pieces are going to fit together aside from those few outliers
that we have the other side a draft but those we can customize and tweak to fit
in with a bigger scheme of things so those are two big advantages for having
kind of one person drafted but there are some disadvantages having one person
draft and these are things that have to be thought through pretty carefully one
roll of contract construction is that it is interpreted against the not against
the drafting party the idea is that if you had the opportunity to draft it and
you drafted an ambiguous way then you ought to be at a disadvantage you ought
to be penalized because you could have made the language tight and you didn’t
so the drafter from a legal standpoint is in a less advantageous position
another whammy against the drafters the drafter has to pay for the drafting
contracting is somewhat of a lengthy process it’s not unusual for it to take
you know many many many hours to do a good job with it so if you have an
attorney or paralegal who’s charging hundreds of dollars an hour and you’re
multiplying that by ten or twenty or thirty or forty hours it can become
quite expensive and so you can see how that’s a reason why you may not want to
bear that cost it varies who’s going to draft the contract but usually it’s
going to be the deeper pocket so the issue about
the contract being interpreted against the drafter one way to to reduce the
impact of that standard is to have both sides draft at least certain portions of
the contract and also to have the party who is not drafting most of it to make
several edits of the contract he insists that they make edits a few if you change
it so that both parties can accurately represent that we both a drafted
portions and we both edited portions and then you have a clause in the contract
ideally that says that the contract should not be interpreted against either
party because either party participated in the drafting and the revising of this
particular contract okay so we’re at the initial planning stage we’re going to
get the facts we’re going to get a model or several and again it may we may be
using one big model but have several independent clauses that we want to
include then we want you know to have an outline again the model may well provide
that we want to get the entire deal on paper all the nitty gritties and we may
not have it organized right away and this may be a later point so for example
we might you know really focus on these to get the deal on paper and then try to
organize it around our outline some people like to get the whole deal done
and then it kind of like you know they they’re they’re spilling their blood on
the paper and then they’ll go back and make everything pretty and make it work
out other people like to write a little bit then revise and write a little bit
and revise there’s no particular equation that works for everyone
there’s no particular system that’s going to work for every project and so I
think the main thing to focus on here is being flexible and following your
inclinations I will tell you though that the the path that is will say easier
conceptually is to just get the whole draft document on the paper and then to
go back and do your revisions the reason why this method is conceptually easier
is that you’re only doing one thing at a time if you’re drafting while you’re
trying to organize you’re having to functions going on you’re trying to
think about what do I want to say and where do I want to put it if you just
say all I’m gonna do is just put it on the paper I recognize it’s not at all in
the right place and that’s okay and then you go back into the second stage that
is letting your brain focus on one thing at a time so especially when you’re
starting the process of contract writing it may be beneficial to just get the in
deal on paper just bleed all you can under the paper and then go back and
clean it up now once you get a little bit more
proficient with this you’ve had more experience you may find that you can do
the multitasking nothing in the world wrong with that it may actually save
your clients some time and then I say revise revise revise repeat as necessary
this is a super long process this is going to take longer than just putting
the deal on paper if I were to say one challenge that people who draft
contracts from the beginning they don’t reserve enough time for the revisions
because this is where the activity is this is the art this is where the skill
shines getting the deal on paper getting it I’m gonna say 80 or 90 percent of the
way there is not to the finish line the beginning the last 10 to 20 percent is
probably going to take as long as getting to the first 80 or 90 percent
there’s going to be a lot of work the initial draft this first deal you know
is going to get you in my practice claim if you think that this is done it’s all
of these steps that get you to where you need to be so I only have it written
here four times but you’ll probably go through the document quite a bit more
than four times one thing I suggest when you’re going through the document is to
look for one possibly two things through each pass through and we’ll talk about
some of the things that you might want to use for this pastors later on but if
you are trying to look for everything in one pass you won’t you won’t catch it
all let’s say you decide that you’re gonna look for everything well you’re
gonna probably gonna find a lot every time you go through it but because
you’re not saying I’m just looking for X you’re gonna miss some of X you’ll catch
a lot of X just like you’ll catch a lot other stuff let’s say
your problem is singular days when you go through you catch a lot but you never
have a single time that you’re looking just for singular days and so guess what
when you’re not focused on it you’re gonna miss a few and so you will have
some singular things left you don’t want that that’s sloppy that’s potentially
malpractice and so you’ll want to have a pass-through where all you’re doing is
you’re finding all the time as the word day appears and then you’re gonna look
to see if the antecedent is singular or plural if it’s singular you’re either
gonna change the day or you’re gonna change the antecedent if it’s plural
you’re probably okay so those are the steps that you’ll have to think through
you have to be systematic about it you also have to know your own writing what
are your strengths what are your weaknesses you may have no trouble in
the world with singular that you may be able to when you write you don’t write
singular that or you immediately catch it when you write it awesome you are to
be respected and fired because I don’t fit into that category I have to check
for singular they every single time but there may be something that I don’t have
to check for that you have to check for and so that’s where that self-knowledge
comes in knowing what you are good at knowing what you aren’t good at I’ll
give you an example for me I don’t have an issue with apostrophes that’s a very
intuitive thing for me other folks who may not have any problems with singular
days maybe need some extra support on apostrophes and so that’s where you
might find the distinction so you’d be looking for one one one round of events
are going to be just on the singular they if you’re me maybe for you it’ll be
on the apostrophes and maybe I’ll just be on one particular error relating to
apostrophes oopsie Murray yeah I’m gonna go ahead and turn off this obnoxious here we go I turned it off clearly I did
it here we go let me just go back and you you you not sure if I can turn that off or not
but any of it we’ll just we’ll just live okay we talked about developing outline
and again these are some steps in considering the outline knowing the
purpose having a checklist of things that the contract might or should
address you can actually find these contracts these these types of
checklists in a form books that will oftentimes say have you discussed such
of limitations what are you going to do about that have you discussed within the
legal names of the parties are have you discussed quantity have you discussed
delivery dates all of those things looking at similar contracts that can be
a good source and thinking about the ordering of the clauses again looking at
that form book example or that previously draft a contract can provide
you with a lot of ideas about how to organize the clauses but there may be
particular issues with this deal that would require a difference to toggle
organization in that first draft your goal is just to get the ideas on paper
if if that’s you can worry about the format later on I’m gonna suggest here again for that first draft all you may
want to do is focus on getting your words on the paper I would suggest for
the first several contracts you that’s all you think about doing your first for
first write but as you become more comfortable and competent at that you
may want to start thinking as you’re spilling ink on paper some other things
avoiding surplus words finding the spots at least where you know you’re going to
have to define the terms maybe you don’t stop and provide the definition but you
may you know put a note to yourself add definition here you may want to consider
about are there words phrases sentences that you can omit because you’ve said it
several times before those are some things to consider and then
we’re considering the topic of simplifying language here we have
surplus the idea of eliminating surplus words which is pretty much the same
thing as unnecessary words may want to consider simplifying so using clear
concise terms think carefully because every word in a contract is given weight
there’s no extra words if you use the word V instead of the word a the court
will interpret your contract differently if you put a comma there the court will
interpret it differently than if you didn’t put a comma there and so you have
to know well what is the difference in meaning when a contract is here and when
a contract is it when I say B and when I say a oh every single word every single
decision you make even when you decide to omit a word has legal repercussions
so there are there is no kind of by the seat of the pants when you’re writing
contracts you have to think through clearly why am I using this word why do
I use the word car versus automobile you need to know well is there a legal
distinction between the two I’ll tell me I don’t know because I
haven’t done the contract in that area but I would certainly want to think that
through and decide do I want to use car do I want to use automobile do I want to
use motor vehicle and whichever one of those terms I use I’m going to be
committed to that term I’m not going to refer to the car as an automobile in one
place and a motor vehicle in another place if I decide I’m going to use the
term motor vehicle I’m gonna use the term motor vehicle throughout the entire
document and I’ll probably have it as a defined term so it’s important to make a
decision you know pick the best word use only that word for that idea and most
likely to find that term provide a definition within your document as I
said this business idea we don’t use synonyms you know when you’re writing an
English paper or a short story you’re gonna not you’re gonna want to vary the
word let’s say it’s a car a story about a car trip you’re not gonna say every
time you refer to getting into the car getting out of the car you’re not gonna
say car you say automobiles I’m sure does a
motor vehicle you’re gonna say you know other words for it the Chevy or the Ford
or whatever that the term might be because it would get to sound very
repetitive if you kept on saying car car car car car that’s appropriate in a
short story to vary the language you’re listening to the music of the language
you want it to kind of flow and have an artistic statement to a lesser extent
but still to some extent you’re going to want that when you’re writing that paper
on the history of the automobile or on an English paper about that short story
about the car trip you so in none of those circumstances you’re gonna want to
use synonyms when you’re writing a contract there is no literary merit
whatsoever to a contract you don’t want there to be any literary merit if you
decide that this that you’re going to use the word car you use it every single
time even if you use it 400 times in the contract and in fact you may not even
want you may just make the decision not to use any pronouns so every time you
refer to the car it’s the car you don’t ever call it it that’s a reasonable
decision to make because it’s possible that the word it could be ambiguous
because it is a pronoun it stands in place of a noun but maybe there’s a
point in your contract that it’s not a hundred percent clear what the
antecedent for that it is you’ve created some ambiguity to avoid the ambiguity
just use the define term car and once you define the term you’re going to put
it in capital letters avoid legalese and this is especially important if you’re
planning on having ordinary people interpret the contract or apply the
contract or do the tasks required for the contract but even when you’re
talking about legal professionals applying the contract the fact is that
none of us speak Latin fluently none of us are as comfortable with latin phrases
as we are with good old-fashioned english phrases and so even those of us
who have some knowledge of Latin and some experience with legal
firms in latin have a little different level of understanding and so well I’m
not going to say you never can use a Latin expression it is certainly
something that I would challenge myself over that and not just Latin expressions
but just using email legal terminology it’s better to break it down and to say
in everyday English what that concept is in most cases now I’m not gonna lie to
you there are times like for example the expression of specific performance yeah
that has a legal term I mean those words are everyday English words but they have
a legal term that’s different than the way old people ordinarily use that
expression if you were to translate that into everyday English that might
actually create a point of confusion because the reader might be like gosh
this reads like they’re referring to specific performance but they never use
the expression specific performance that’s kind of weird I mean if they
wanted to establish the remedy a specific performance why did they just
say specific performance I mean so they obviously didn’t want to do that or they
would have said specific performance but what they wrote I mean it sounds like
specific performance I don’t see what’s different you can see I know we’ve
created ambiguity so there are some times where we’ll want to stick with the
legal terms it’s kind of a judgement call and that may be something that it’s
a good idea to talk to the attorney about should I use this specific legal
term or should I translate this into an everyday English equivalent refer to
parties by their names it can be a shortened version of the name especially
if it’s a lengthy corporate name you’re gonna want to think through you know how
maybe we can shorten it maybe with initials or something along those lines
if it’s a human being usually people are going to breathe limit it to the surname
if you know two brothers though are entering into a business contract and
they both have the same surname that’s not gonna work maybe you go with first
names but it is a good practice to refer to people by their names instead of by
he or she or it even party of the first part in parting the second part I mean
yes that is a clear definition but it’s easy to forget know which one’s the
first party which was the second it’s a little bit of an artificial
distinction voy a big ewis pronoun such as these and keep clauses sentences and
paragraphs short you will see many many contracts who do not need this these
rules I have seen single sentences that are several pages long in the contract I
have definitely seen contracts that have had sentences that have been essentially
impossible to read as a one unit of meaning type type enterprise so you will
see models that have very very long passages this is where you get into
judgment and this is where I encourage you to talk with the attorney if the
attorney many times that these will be the most important the action sentences
in the document that describe what the parties are supposed to do many times
these are settlement agreements will explain specifically one party is giving
up and you’ll see that they use about 50 synonyms to mean that same thing now you
might be theme yourself oh gosh plain English avoiding synonyms maybe I ought
to just eliminate 49 and just use the best synonym I can see how that’s our
estimate sounds really smart and I don’t disagree with that but I will tell you
that most attorneys and I want to include myself in this to be honest
would say don’t do it let me explain to you why for though that very specific
Clause at very specific sentence the idea is this works why mess with
something that we know works as soon as you drop a synonym maybe we’ve lost some
subtle shade of meaning and you might think except full okay so I’ll research
that issue well okay so you go out and you spend 40 50 minutes researching the
issue and you reach a conclusion whether it’s
to drop that word or not well does the client really want to pay a hundred or
two hundred dollars for you to do that research so that the contract is a
single word shorter and the contract means exactly the same either way I
think most clients would say you know what just keep the 50 synonyms in I
don’t want to pay I don’t want to pay 30 minutes for you to figure out if we can
drop some synonyms if it works with all the synonyms that’s what I care about
and so when you are working from boilerplate from a particular contract
especially sections like like that that have to do with key provisions about
people are giving up or agreeing to do tread tread lightly talk with the
attorney before you say hey I’m really thinking about doing significant
revisions this section what do you think so especially when you’re when you’re
drafting sections you know it with freehand then certainly keep these words
in in mind let’s do a flip over here let’s consider our particular
circumstance here we go blow this up just a scooch this is an organization
for a typical contract you’re typically going to name the contract I mean you’re
gonna put it up here probably and font it may be slightly larger font I’ll make
this fourteen point I probably in bold you might even get fancy and use small
caps like that and and then you will have a clause where you start the
contract you were gonna typically in this first section you’re going to
introduce the names of the parties and you can see here I have two parties here
ABC corporation Inc and I’ve labeled it the corporation and I have Albert Gore
and I will say mr. Gore here in parentheses I could simplify it and just
go down to gore that would work or I could have called the corporation I
could have called it ABC that would also well we’ll switch this up and just go
with these particular examples I’m actually going to get rid of the V here
now you will see some people say they’ll say here and after but there’s no need
to say that this is one of these legalistic expressions that are best
just left out putting it in parenthesis and then putting in quotations is enough
to communicate that this is going to replace this in the contract so once you
do this I’m not going to use this again until we get to the signature block then
I will type this out again so this will appear possibly in the title and then in
that first paragraph in the signature section but there on out whenever I
refer to it I’m going to use this name it’s a best practice not to go back and
forth and sometimes write out the whole name and send those right out the
abbreviation just always use this when I’m referring to this person the Albert
Gore I’m going to use his name this first time maybe in the title and then
from here on out I’m gonna say Gore let’s say there’s a sand road block for
Albert Gore at the end I will write his name out there but I’m never going to
use albert again in this contract after I have defined it his score in this
first paragraph I might come up with a shorter name for my our document so
let’s say the original name or a document is the agreement to sell here
we go we’ll just copy here but this title up here okay the agreement to sell solar power
to Gore corporation so now I’m going to say and or corporation so this is going
to the name for our corporation be Gore Corp so these are actually Gore Albert
Gore the human being is different this is the contract ABC corporation see
so we might call this the let’s see here we’ll say ABC corporation is entering
into a contract with Albert Gore and gore corporation so this means that this
is one party to the contract and this is another part of the contract now it
might be that Gore corporation is solely owned by Albert Gore so he’s going to be
signing his own name Albert Gore under the line that provides for him to sign
and then also as the CEO or sole owner of this corporation now since we’re
talking about an individual I’m going to probably say individually and when we
say this in everyday conversation we use the term individually we usually mean
singularly but here we mean as an individual as a human being so Albert
born may be signing the contract twice once as Albert Gore the human being and
another is Albert Gore the CEO of Gore corporation now you can see this could
potentially be confusing because we’re gonna sit and use Gore and sometimes use
Gore Corp so we have to be careful that we don’t use Gore when we mean Gore Corp
when we don’t meet use Gore corporal you mean Gore one strategy would be to say
mr. Gore it’s probably a better practice to have there be some mistakes because
this again just by itself I would just might have forgotten to include the Corp
but with this we see that this includes something that’s not in this version and
this includes something that’s not in this version you may want to come up with a shorthand
term for the contract so we’re going to caught the solar agreement so whenever
we refer to this contract again we’re not going to within the contract itself
we’re not going to use this long name we’re just going to use solar agreement
so whenever we refer to the solar agreement we’re going to capitalize all
of the first letters so we’re gonna capitalize ABC we’re gonna capitalize
core Corp they might think yourself well we would always capitalize core Corp
right I mean this is the proper name we’d always capitalize mr. gore right so
that’s that there’s nothing unusual about that you’re right there is
anything unusual about this we would capitalize these words in any situation
but we might want to but in this case we would not ordinarily capitalize the word
solar or the word agreement unless it’s the beginning of sentence so here by
using capital letters we are saying this is the defined term not just a casual
use of these two words together okay so this is again our tile on our first this
is typically just that first paragraph and it will usually be just basically a
sentence I know one of the courses we’ve probably probably had at Colin that has
talked about the fact that you don’t write a single sentence paragraph that
role is a really really awesome rule to follow I encourage you to follow it
everywhere but in a contract you don’t have to worry about it again those
stylistic rules are good to follow but not when we’re talking about executable
documents like contracts and wills and leases and things like that
next we’ll probably have a section which we call recital by this we don’t mean
we’re going to start dancing or playing a musical instrument or where or
something along those lines these are the parts that talk about the the the
reasons behind that why these people are trying to get are trying to set this
situation up you are reciting or repeating the reasons
imagine that Al Gore in his corporation is entering in this contract with ABC
corporation and they are going to buy solar power
from ABC corporation primarily because Gore corporation one is very concerned
about global warming it really wants to make sure that it has a smaller carbon
footprint as it can have that’s the focus of this particular corporation at
least with respect to this contract so you would include that in the recital
section now there could be lots of different reasons why corporations enter
into a contract for solar power they might do it because they think it’s
going to be cheaper or it’s going to be more reliable energy or they think it’s
going to be good marketing for their customers you know we want businesses
using solar energy or it may be concerned about the environment there
can be lots of different reasons you might say well who cares why gore Corp
is entering into the contract what’s important are the terms of the contract
and if ABC corporation violates those terms it’s going to be liable but the
reason who cares about that we arrived that the reason isn’t as
important as the specifics of the contract but sometimes there can be some
ambiguity in the terms of the contract and so it could be that ABC corporation
provides the solar power to Gore Corp just as it’s supposed to but somehow or
another it generates its solar power through through using some and we use
the term dirty here out that’s right at us some kind of dirty technology that
actually has a very significant carbon footprint even though it’s solar power
so in some sense ABC has complied with the terms of the contract has provided
the power that Gore has wanted as agreed to purchase and has provided it via
solar power but it’s not the the clean type of energy that Gore corporation
wants now Gore consumed but if it doesn’t have these recitals in it it
would be difficult for Gore to show a way that ABC has breached the terms now
of course the best contract for boertie right would be one that has in the
action actual actual Wars of agreement language that talks about how dirty the
the solar power would be but you can’t always in turn in to
anticipate every single area of ambiguity you you want to address it
certainly in the body of the contract but by putting in the recital it’s just
one other insurance piece that you’re developing for your for your client
another reason that recitals can be useful as they can help you establish
damages so let’s say ABC Corp provides the power to Gore Corp using solar power
and does it in a way that has a dirty carbon footprint a Gore suit Gore
Corporation sues over this thing hey yeah you provided the power yes it was
solar power technically but it was dirty solar power
well a DC Court might might say well how did you lose any money off of this what
are your damages well without the recitals that say that Gore is really
really concerned about global warming and carbon footprints Gore might not be
able to prove any damages or at least might not be able to prove that ABC
corporation would have known that Gore would it be worried about those damages
so this can be a way to help Gore prove up its actual damages so the recitals
you know certainly not as important as other SEC parts of the contract but for
those two reasons can be fairly important so we’ll have the words of
agreement I’m an example could start like this where for the parties agree
dot dot and then you’ll have and again this this one quote unquote sentence I’m
doing air quotes down with my fingers no you can’t see me this might go on for
several pages because you know ABC corporation might agree to do 50
different things and mr. Gore might agree to do fifty different things in
Gore corporation might agree to do 50 different things literally this one
sentence with all these clauses might go on for pages and pages and pages
nobody’s gonna sit and read from the first word of the sentence to the last
word of the sentence that would be weird and certainly you can write these in a
way that isn’t one long sentence but just just be aware that that is one
structure and it’s always a good idea when you’re writing it to think to
yourself where am i putting a period by putting a comma where does this
sentence start where does the sentence end the longer the sins that you have
the more likely you are to have common errors the more likely you are to have
sentence fragments the more likely you are to have comma splices the more
likely you are and have some kind of grammatical problem and so again if
you’re a little bit uncertain about how to use some of those points of grammar
or points of punctuation you may want to think and prefer the shorter sentences
let’s talk about definitions definitions are ways of thinking about a term that
may be different than the common meaning that we associate with the terms I’ll
throw out an example here if I were to use the word Charlie do this in class
obviously can’t do it class here now but if I were to throw out the word child
and it’s typically what I do is I’ll say what is the word child mean and assuming
that everyone the classroom no the people classroom have heard this before
many of them usually have so it’s not always the best example but I’ll have
people say a kid a cha someone under the age of eighteen somebody who isn’t old
enough to enter into a contract there’ll be lots of different terms but they
almost always are focused on somebody who is under the age of eighteen okay so
that’s one meaning for the word child but there’s a second meaning of the word
child and we all know this meaning but it’s not in the forefront of our minds
and I’ll give you an example I am older than eighteen years old even older than
21 and yet I am still the child of my parents I will always be their child you
know when I’m 90 years old and even when they have passed away I guess even after
I’ve passed away I will still be their child so that has to do with a
biological relationship and that is not restricted to people who are simply
under the age of 18 so for example I happen to have children they are
teenagers now and neither one is at their eighteenth birthday
I call them children and they are children once they hit there are two
years apart so look what on the day that the youngest one is 18 the other one
will be 19 on that date they will still be my children but they
longer be legal children so that’s an example of a term a very common everyday
word that we all know that has two meanings and so let’s imagine that we
had some contract language something like this Carl the child of Bob will be entitled to monthly payments of $400 okay let’s assume that when we entered
into this contract earlier in a separate section we had to find Carl Carl Smith
is the biological child of Bob and Mary Smith Carl Smith was born on we’ll say
June 3rd say 2010 okay so at the time the rent in the contract
Carl is definitely still a child so do we mean let’s this justice we’ll say
Carl the child actually would say just changed up a little bit Carl Smith is
the biological child of Carl and Mary Smith Carl Smith was born on June 3rd 20
2010 Carl the child will be entitled to monthly payments of 4400 $400
so do we say the child here to distinguish this
Smith from this Carl Smith so it’s the kid here he’s gonna get payments for
$400 a month that’s that’s one interpretation of it that we were using
the child to distinguish this Carl from this Carl cuz this Carl as a child this
Carl as an adult or we could have included this phrase to mean as long as
Carl is a child he’s entire sees payments but the the month after he
turns 18 these payments end so are we focusing on using this phrase to
identify which Carl are we focusing this phrase to mean as long as this fact is
true he’s entitled to these payments so that would be an example where you’d
want to define the term child this is obviously a sloppily written a phrase a
contract phrase but this is the type of issue that becomes important to define
the term so you’d want to say you know so if you you might have a definition
here you know let me just say here we would have a separate clause copy maybe
have a definitional section and you’d probably rewrite it as long as he is a
child and so now the payments are going to end as soon as he has his 40th
birthday what cities had his 18th birthday so this is a way of clarifying
this terminology they don’t think that definitions are
restricted to situations in which you’re using technical words or unusual words
or industry specific words sometimes the most important terms to define are the
everyday words in your contract you can define terms more narrowly than the
average meaning associated with it or more broadly for example let’s say you
wanted to talk about beer there is probably a statutory definition in Texas
as to what qualifies as beer it’s going to have a certain range of alcoholic
content and it’s going to be made with certain products so for example a
whiskey isn’t going to meet the definition of beer because of how its
its alcohol level and the ingredients that go into it then there may be some
types of beer that are for example non-alcoholic or have a very small
amount of alcohol they don’t meet the statutory definition of beer or perhaps
they’re extra fortified and they exceed the statutory definition of beer even
though they are made with the same ingredients we usually associate with
beer but according to the Texas statute they might be technically defined as a
liquor and so you can see how you want to but but let’s say you’re entering
into a contract with a with a beer and wine distributor and your business sells
beer in line and you want you think it’s going to be more useful for your
business to have a definition for beer that is not based upon the alcoholic
content but based upon the the contents the ingredients that go into the beer so
even non alcoholic are very slightly alcoholic a beer will satisfy the
definition as well as extra strong extra alcoholic beer might satisfy the
definition and so you’d want to make sure that you are working with terms
that define that more clearly the term beer would definitely be one you’d want
to define for the purpose of that contract and as I say most the time when
you’re dealing with definitions in the contract you’re not going to write your
own you’re going because that’s the term that’s probably been defined in
thousands of so you’re going to want to focus on a
definition if you happen to be a beer and wine distributor you’re gonna have a
definition of beer that you like that you probably use in most of your
contracts or you may have a few definitions that you use depending upon
the Preferences of your customers you’ll pull those out if you can’t find one
though you might want to look at the statute in the state it may make sense
to mirror that statute because there probably will be some differences as to
how you can handle and treat the the beer depending upon whether it meets the
legal definition of beer in the Texas statute versus its meaning a definition
for another product and so there could be reasons why you’d want to match the
definition in the particular state in which your you’re functioning in so
you’ll want to take those definitions from whatever source document you have
probably tweak them a bit and then keep those in mind going forward and that the
ordinary meaning is no longer going to be in effect once you define a term it’s
going to mean that every single place so if let’s say I decide to define a child
in this way I can’t ever use the word child to refer to Karl and Mary’s 19
year-old daughter Samantha I can’t call her a child because I’ve already said
what child means I could use the word offspring or I could use the word heir
or I could use the word daughter there are terms I can use that might sound the
same but I cannot use the word child to refer to somebody who violates this this
definition that I’ve already established okay so
now we’re getting into the substantive part of the contract this is what the
details of what people are agreeing to again this can also be you know the
words of agreement many times I guess up here we’re saying the words of agreement
are just this simple phrase and then below this we’re going to go into more
granularity let’s pause here though and talk about the definitions it’s kind of
a weird place for the definitions I would say most of the time people put
the definition section between the recitals and the words of agreement or
at the end of the contract so let me just move this here just for the sake of
us so how do we decide where to put the definition section I will tell you
historically that it would usually go after the recitals before you get to the
the nitty-gritty and there’s a logic behind that that’s not bad I mean there
there is some some thought that goes into that product it because and when
you get to the actual agreement section you’re going to be using the words that
you are going to have your definition for and so it doesn’t really make sense
to use the word child when you’ve never told the reader what child means and so
the reader is gonna be seeing that they’re thinking well I guess I can just
apply my ordinary meaning in my head for the term child and I mean that case his
ordinary meaning may be different so if you provide the definition up front he
can’t I’m sorry miss he can’t you know honestly say that he was deceived
because the meaning was was there so that’s one way of approaching this I
would say that’s not the best way in in some cases sometimes the better approach
is to it’s the thing well like a textbook how many of your
textbooks list the glossary at the beginning of the book almost none it’s
typically going to be in the back with the index most textbooks are going to
have an index especially if there’s any kind of specialized vocabulary in that
particular textbook for example let’s say you’re taking algebra there’s going
to be a definition for a linear expression there’s going to be a
definition for x axis there could be a definition for a y-axis there’s going to
be a definition for standard form of a line or a linear equation you know
there’s going to be a definition for function all those terms will be defined
the color be defined within the text in the chapter maybe even in the margins
but there also is going to be this one-stop shopping place where you get
typically that same definition and at the end of the book everybody knows
there’s going to be an index and so if you’re reading your math book and you’ve
got what is a function again I can’t remember I don’t see it on the page
you’re probably gonna flip to the back and look it up in the glossary you might
flip to the index and then that will direct you to maybe the section the book
that you know gives lots of examples and a more a complete definition of full of
a function so it might depend upon how lost you are but the glossary is a
pretty sensible place to go for that well a contract can also have a glossary
and it can also be at the end if you have a long contract I think many people
would expect there to be a glossary at the end so there would be that the same
kind of level of expectation that you might have with a textbook that’s
especially true in order for the long contract number two there isn’t a
definition section the front front you can have it in the front though there’s
nothing wrong with having in the front and I would defer to the attorney with
whom you’re working to see what the Preferences the advantages of having the
front are number one lots of people kind of still expected to
be in the front and number two if you are looking at the contract from the
very beginning of the very end you’re definitely gonna see that
before you actually see words that are using that definition disadvantages are
that it’s not a very interesting section and it’s really a section that you
aren’t you know no one sits down and reads you know 50 definitions before
they get into the substance of the chapter nobody can retain that level of
specificity honestly as I’m reading this section in the contract so let’s say we
had we had our definition of child someplace separate maybe in the front
maybe in the back well when I get to the section where I see the word child
capitalized I’m gonna say oh wait a second this word child is capitalized
it’s not the beginning of the sentence well now I need to go find our glossary
and see what this term actually means in this context and so I’m not going to
commit to memory five different definitions so the definition section is
going to intrinsically be like that glossary you’re gonna dabble in it
you’re gonna pop pop into the glossary look down find the word you’re looking
for them bought back to your substance and so it kind of makes sense for it to
be at that in section one thing that doesn’t happen with contracts unless
it’s a very short contract is people don’t sit down to read cover to cover
the people writing it of course do but the people reading it rarely do that and
so in some sense where you put it isn’t so very important because you know the
ordering of the pages aren’t really how people approach the document if you have
a very long contract you’re likely to have some kind of table of contents
which will tell the reader where to find the definition section now one thing I
would discourage you from doing is having the definitions
interspersed throughout the contract now one one place that you probably will
still see it is going to be in that first paragraph where you name the
parties you come up with a little nickname for them and you come up with a
name of the agreement but after that section you’re probably going to be
using definitions in one central location you’re not going to intersperse
them throughout the particular check our particular section because then it
becomes really hard to find the definitions let’s say we defined the
term child on page seven in the contract then we use it again on page 94 well I
mean how are you going to find the definition for child I suppose you could
do a word search of it but let’s say you happen to have a paper version in front
of you that’s a lot of work to find where you define that term child a
glossary makes it a lot easier to find that particular term so most likely you
will have a centralized shop in place either in the front or the back these
terms you’d probably also even though you’re providing a definition the very
beginning you may well also provide a definition for these terms again in your
table of contents okay so here are time of the substance again this is what the
parties are green see this is the meet of the contract obviously this is the
most important section the draft should give a logical and short name for each
part of this contract so each paragraph you’re going to talk about one task that
one party needs to do and then the next paragraph will talk about another task
and you’re going to name that particular section of that so each chapter will
have a number or letter or name you could have lots of different paragraphs
in this section it’s a good idea to put the paragraph names in bold a lot of
times with a period so you might have just come up with an example Gore Corp agrees to pay purchase price and then
all the particulars of what that means here and I’m going to put this in bold
you can see here am I actually not capitalized these terms so you
capitalize them it’s a tonight they are defined so we’ve already we know this is
a defined term and so we can look at this and go purchase price that looks
like it’s a defined term as well so I will go to the end of the contract to
see what how that particular term is defined
so we’d have more contact and we might have another paragraph ABC agrees to
provide solar energy we can see again we have ABC is capitalized so our energy
is capitalized we might decide that provides should be capitalized I think
probably that would be a defined term what does it mean to provide something we have all the content going from there good idea to organize this there’s kind
of two ways you’ll see people do it one is you might have all of gores tap or
corpse tasks together then of all baby C’s tests together another way would be
to have them arranged chronologically ABC does this and then Gore does this
then ABC does this and now it scores time to do this either organization can
make sense that’s kind of a client preference and so it makes sense to
think about it especially if you have the entities doing some things at the
same time or maybe doing things that don’t really have to do with a yin and
yang back and forth type thing it may make sense to group all of the tasks
together you want to have some section that talks about how this contract is
going to end who can end it when can they end it how do they end it and why
under what circumstances would it end this is usually towards the end of the
contract kind of after you’ve done through the substantive content there
will be boilerplate some common areas of boilerplate are things like choice of
law choice forum contract
well not interpreted against the drafter that chap that another one could be statutory period liquidated damages severability clause exculpatory damage
cause which is oftentimes going to be associate with like a day and damage
clause I mean there are I’m not exaggerating when I say hundreds of
these types of clauses you’re very unlikely to be drafting anyway these
clauses kind of freehand but you know let’s say you have a choice of law
clause and the choice of law is Missouri well guess what you now want to make the
choice of law Texas you can probably use that same choice of law clause and just
substitute Missouri for taxes there may be some particular issues to think about
beyond that but at least that gives you a starting point then you want to have a
section for the signatures and in this case we need three signatures again we
need a signature for somebody from ABC Corp now obviously a corporation can’t
sign anything but you would want to have the CEO the CFO somebody who is an agent
of the company ideally an officer who would sign it and you write something
along these lines we have signature line I see Robert Greene chief executive
officer ABC corporation and his capacity as chief executive officer so he is not
going to be personally liable under these situations so let’s say that in
his capacity as chief executive officer of ABC corporation so let’s say ABC
corporation Robert green signs is Robert Green and AC corporation breeches well
ABC Robert Green himself is not liable because he did not sign this
individually now we could change it we could say individually and in his
capacity and now he’s responsible he can be individually sued when ABC
corporation if it breaches and also ABC corporation itself can be sued because
Robert Green was essentially signing as if he were ABC Corporation for that
purpose so it’s important that you have the name of the person signing but it’s
even more important that you have the capacity in which they’re signing and
we’ll also want to have a date that to the contract is signed do you need to
have them notarized usually not there could be times where it would make sense
for it to be notarized so I’m not saying that that’s never appropriate but it’s
not something that is routinely done if you were to have it notarized it’s
probably a good idea to have everyone’s signature notarized and you’re probably
going to want to have a notary for each one of the signatures I suppose you
could have them all three sign at once you know and then have all three
signatures notarized together I would defer to the notary as to how that ought
to be implemented in terms of complying with the rules of notarizing documents
by the way many times you will be the notary who’s being asked to authenticate
documents along those lines so let’s go back to our let’s go back to our other
document here here are some things to keep in mind as you’re thinking about
your documents one analogy I like to draw between drafting a contract is it’s
like drafting computer code if you’ve never taken a course that you’ve been
asked to draft computer code I encourage you to do so especially if you find the
idea of legal writing as something that interests you in something that you want
to be seen if you can part of your career because there’s lots of
comparisons one of the things you do with code is is the computer in some
sense is really fast but really stupid it can’t pick up on nuances and things
like that it will do exactly what you tell it to
do and if you write something that has more than one meaning it’s going to pick
one of those meanings and it may not be the meaning that you want it to pick and
so your one of your jobs when you’re coding is to squeeze out any ambiguity
find it and address it and that’s why the reasons why you test code repeatedly
well what happens you think you know what the result will be lets say you
computer you calculate you you draft some code that will function as a
computer and then you type in you know two plus four and you you hit the equal
sign thing he’ll get a six well you get a five something’s gone wrong with your
with your code and so you’ll have to go back and look through your code and see
well why did it give me a five when it should have given me when I say two plus
four gigs should give me a six and so that’s the coil ways you you figure out
where that logic problem is then another thing that you’re going to
do is you’re going to want to anticipate all the various scenarios this is
probably and it’s kind of related to the end begin the aspect but somewhat
different as well the reality is that when you’re entering into a contract
typically especially if it’s not a settlement agreement typically both
parties are excited they want to get involved it they don’t want to think
about the things that can go wrong and there’s a logic to that to number one
talking about how one side might betray the other or true the other is hardly
the best way to start a deal and that’s fairly demoralizing and can create some
hard feelings so you can understand them not willing to dwell upon that a
possibility another reason people don’t dwell upon what can go wrong is that
probably nothing will go wrong I mean most of the time people do what they say
they’re gonna do in a contract and everything works out just fine and so
spending a tremendous amount of time considering that very unusual scenario
where something goes wrong you can think to yourself especially if you’re a
business person that’s not a good investment of my time to worry about
that but the attorney and the paralegal are obsessed with what can go wrong
that’s why they’re hired when everything goes great you don’t need an attorney
you don’t want an attorney but you are getting the attorney to protect yourself
against the the thing that goes bump in the night type scenario and so you’re
thinking through all of the difference in areas I mean some of them are pretty
obvious well what if Gore corporation doesn’t pay when after it gets its power
or what if ABC corporation isn’t able to provide power or what if they aren’t
able to provide solar power what’s gonna happen then but there can be a main
indifferent additional issues for example what if there’s a hurricane that
blows through or a tornado that blows through and hits ABC’s facility or maybe
hits core corporations facility maybe there’s Gore corporation files for
bankruptcy maybe ABC corporation files for bankruptcy lots of different things
that you want to consider how we how do we want to handle that
sometimes the corporation might say or the company might say we think that is
so unlikely when they want to handle it and you imagine who you are to suggest
well what’s gonna happen I don’t know what if there’s a zombie apocalypse and
probably your client that time is gonna roll his eyes and say look if there’s a
zombie apocalypse it doesn’t matter what we have in her contract and he’s right
under those circumstances I gotta give him that one so yeah I mean certainly
you can go too far down this this path of anticipating too many things but it’s
but most clients are not doing as much as they should and in part because they
are counting upon the attorney and paralegal to do that work so keep this
kind of marching order this paradigm in your head as you are thinking through
the contract okay so let’s go through some of these and maybe these we’ve
already talked about so I’m not going to spend a lot of time on this you should
see the everyday person to be able to understand I think about the week reader
the person who maybe didn’t enjoy books when he or she was a kid maybe English
is in his or her first language maybe he or she doesn’t read for fun you want it
written for that person if that person might be the person who is responsible
for implementing it other good ideas of course if your sentences are short you
don’t have to worry so much about this but keep the subject and the verb close
together if this is something you aren’t too comfortable with you may want to go
back to your senses and subject these here circle the subject in the verb
here’s an example of a simple sentence Bob mailed a letter to Aaron so our
subject is Bob he’s the person who’s doing the verb so I’m gonna put our
Soviet Union and our verb is mailed I’ll put that in green so these two are next
or each other you can’t get any closer than that that’s right let’s see this is
Bob worried that Aaron was not checking his
email mailed the letter to Aaron we have are the same words except now we have a
clause in between now this sentence it has an ambiguity in and it’s not clear
who the antecedent of his is but it’s not but this is this part is still clear
Bob is the one mailing the letter the his is created because we don’t know
what their Aaron’s supposed to be checking Aaron’s email or whether Aaron
is supposed to be checking Bob’s email but this is not a good structure and
that we don’t want to have all of this distance between reception her so be
better to write it like this worried that Aaron was not checking his email
mailed the letter to Aaron at this point we could even just replace Aaron with
him but now the his assuming that we haven’t in this context it seems pretty
clear that the his is referring just to Aaron because of course the Bob hasn’t
appeared in this sentence yet but now we’ve removed this ambiguity and we’ve
gotten back to having Bob and the subject next door to each other you
don’t have to have them this close but this is the best practice you you
ideally want to have them pretty close so that’s an example of something to
keep in mind and the way you approach this is just finding your simple subject
and finding your use plain English and avoid legal terms unless the terms are
terms of art avoid nominalizations anomalies ation is a long noun that has
a suffix before a root word that is ordinarily a verb okay many of
these suffixes are ash ance yeah these are just a sample there’s a lot more so
acceptance you can see here we have the word the verb accept I’ll put this in
gray and then we have our suffix which I’m going to put in that color we
could do ah let’s see shipment oops need to do that shit well
so much for that okay here we go so shipment now we’re gonna have this the
word ship which can be a verb or a noun in English so ship is our verb and then
we mint makes it a noun Association associate is our verb and then our
suffix shit you can see with some of these that
when you turn it into a noun so as you will lop off or add a letter in this
case we locked off our finally for associate these words are perfectly good
English words they’re grammatically fine to use and all of these words are useful
words in English so I’m not here to say oh my gosh never used these words of
course not but use these words judiciously it is usually a best
practice to instead of saying acceptance to say I accept
so saying shipping say it will ship or he must shift hola mis nursing
Association saying he ought to associate with or whatever the particular phrase
is so it’s better to use the verb doesn’t mean you can’t use these words
but again a good good rule of thumb is when you see a long word look for your
verb which is usually in the front there could be a prefix before it but usually
near the front that tells you I ought to think about turning it into a verb
better just style us today to use it as a verb avoid double negatives this one
is something that is we’re not talking about a grammar rule here many times
double negatives are perfectly grammatically okay let’s look at this
sentence neither party may assign any right without prior I’m sorry that is
not grammatically correct here without the prior consent of the other party it
is difficult to understand neither party may assign any right without the prior a
consent of the other party let’s rewrite this both parties must attain must
attain obtain I’m sorry obtained the prior consent of the other party let’s
see let’s say a party a party must obtain
the prior consent of the other party before the party may assign any right I’m still not sure that’s the see any
party must obtain consent of the other party before the before the party
requesting the prior consent may assign any right a little bit easier to
understand what what my concern about this was that I didn’t wanted to seem
like this party was the one who would control so the first party must abstain
actually actually a better way of doing this would be to say this I’m gonna
improve upon this so ABC must obtain prior consent of gore and gore
corporation before it may assign any right and then we can flip it copy or corporation must obtain the prior
consent of ABC before it may assign any right and then you can obviously do this
with with gore too but you you see the concept it becomes easier to write when
you don’t have more than one negative and this one we have two negatives we
have the without and the neither it’s grammatically correct in the first
format but it’s difficult to follow ain’t the same thing the same way
throughout the document again if you’re referring to a car always call it the
car never the automobile or the motor vehicle here we have parallel structure
he will provide and then we have a list of nouns our first noun as widgets then
we have nails another noun we’re doing great but help can be a noun but the way
I’m using here it’s not a noun weren’t using it as a verb he will provide
widgets he will provide nails and he will provide help complete the project
but we don’t but that doesn’t make sense of what we’re really saying is he will
provide widgets he will provide nails and he will help complete the project so
that’s not a parallel so this one is the odd man out so to speak we want them all
to have the same structure so he will provide widgets that’s a noun he will
provide nails that’s also a noun and he will provide expertise that’s also a
noun we could rewrite this sentence above so that we’re not focusing on let
me just rewrite so now this time we’re going to have a verb followed by a noun
he will provide widgets provide nails and he will provide widgets provide nails
and help and we’ll help
the project that’s parallel now because that would have helped complete still
not the best but it’s better at least so you can extend it you can either when
you when you have the three don’t match you can either change the one that
doesn’t matter you can change all the others to match the original format use
lists and tables and bullets when appropriate that can be a very helpful
way to make sure that these contract is complied with if there’s if Gore
corporation is buying four hundred and ninety seven items it wouldn’t make
sense to just list the items in a kind of a lengthy you know last year this
model number if all this by number follows there but not item number better
to put it in the table maybe with a description maybe the SKU number maybe
the price maybe the quantity and so the person who’s going into the warehouse
and locating these items can take it off as he gets through each one of those
items I found this I thought I was able to find this a puts a little asterisk by
it then he goes to the next item be chronological can be a good idea
certainly use headings and titles otherwise they paralegals there to aid
the reader and find the relevant portion the contract so group the stuff so that
what a particular contract reader all the things he or she is looking for are
likely to be in the same place avoid using a modifier of items in his series
let’s look at this one the building has central heating and air conditioning
which the builder installed in 2012 so did he install just the air
conditioning in 2012 or did he installed both central heating and air
conditioning in 2012 it’s not clear so let’s assume that he installed both the
building has central heating and air conditioning
the builder installed both central heating and air conditioning in 2012 or
you could say if he just installed air conditioning in 2012 the Builder
installed air conditioning in 2012 the words and that or are the vein of
contract writers existence there’s almost no more dangerous words in the
English language that and or or you have to be so careful with these because they
invariably create awesome barely they so often create ambiguity
and one of the challenges with it is that you’re not going to see the
ambiguity because you wrote the contract but it can really come back to invite
you let’s look at an example in the event of
a breach Brown may pursue remedies against ABC company or Smith does this
mean that Brown can sue ABC or Brown can sue Smith but Brown can’t sue both of
them both can’t sue both ABC or Smith that’s ambiguous if you mean he has to
pick one or the other then you should have another sentence that says Brown C
under no sorry fingers on keys under no circumstances
may Brown pursue remedies against both ABC corporation and Smith or if
that’s not the intent and you want to allow Brown to be able to sue both we
could say in the event of a breach Brown may pursue rumors against ABC company or
Smith or Brown may pursue remedies against both ABC company and Smith let’s
look at this one brown and green may pursue roomies against ABC company does
this mean that Brown and Smith Brown and green have to agree so if Brown wants to
sue ABC but Green doesn’t Browns out of luck
or maybe Green wants to sue NBC but Brown doesn’t is green out of luck do
they both have to agree together or do what we mean is Brown consumed ABC o all
by himself or green consume ABC all by himself or brown and green can get
together and sue ABC together so you’d want to tighten that language up
multiple adjectives can also create problems and this is really just an
example of the and situation look at this one ABC search company will locate
qualified accounting and legal professionals is ABC supposed to look
for a group of people who are accounting professionals we’ll say ten people who
are CPAs and find 10 legal professionals we’ll say 10 paralegals and so he’s
found or this agency has found 20 people that have satisfied the terms of the
contract or is ABC supposed to find people who are both accounting and legal
professionals at the same time so a CPA who also has worked as a paralegal that
would be somebody the type of category they’re looking for so if you if you
really want though if you’re saying no we just want some CPAs and some
paralegals we don’t want people that have both skills necessarily well then
you would repeat your so ABC search firm will locate qualified
her accounting professionals and new repeat qualified here of course
qualified legal professionals so repeating with the neon he might say
well that is a sound very good you’re right it doesn’t it doesn’t sound as
elegant we don’t care we will want something that is tight we want
something that isn’t open to more than one interpretation we don’t use and or or it at all of
course in legal writing if we mean and we write and if we mean or we write or
if we want both meanings we’re gonna have to write both out so let’s look at
this ABC agrees to purchase a 500 pound
widget or a 300 pound gadget and a forklift so does this mean that ABC
definitely agrees to buy this or the these two together or does it mean that
he agrees to buy either this one or this one but he’s definitely buying this it
could mean either thing so you have to make that clear let’s look at this one
ABC company may not rescind the contract because of hardship does this mean that
ABC does not have the right to rescind the contract when and is experiencing
hardship or does it mean that ABC does not have the right to rescind the
contract because to do so would create a hardship wrench for the other party
whose hardship are we talking about avoid lots of prepositional phrases
let’s look at this one every owner of a paper mill in Houston
will receive a rebate okay so does the paper mill have to be in Houston or does
it can the owner be in Houston but the paper mill is in Dallas so let’s say
that the owner is located in Houston but he happens to operate a paper mill in
Dallas can he receive a rebate or how about the owner of the the so in that
example see the owner was in Houston the paper mill was in Dallas is he get a
rebate now the owner is in Dallas but the paper mill is in Houston does he get
a remate it’s ambiguous use care when drafting a dates and listing ages so for
example Timothy green age 29 is entitled to ten thousand dollars per annum are we
using this to identify which Timothy green we mean maybe Timothy greens dad
whose 57 is alive and so we want to make clear
which Timothy green is supposed to get this or do we mean it’s necessary that
Timothy green be 29 when he’s eligible to get this $10,000
I mean if so he’s just gonna be able to get one payment of $10,000 because he’s
just gonna be 29 for one year Green agrees to submit this order by
June 29th does this mean he has until 11:59 p.m. on June 29th to submit his
order or does that mean that as soon as the clock strikes June 29th it’s too
late so that’s the word bye and English is ambiguous with respect to that
between has that same issue to do you include if you say but if the number is
between 20 and 30 do you include 20 do you include 30 or do you exclude them
both so be sure one way to do that is on or by your giving an incomplete list
make it clear including but not limited to this is very common language if
you’re talking about days or months you want to think about how you’re going to
define them someday months only have 28 days some have 31 days should you assume
every month is a 30 day period what are you gonna do about leap days what do you
know about holiday days like you know Thanksgiving or New Year’s or MLK Day
what are you gonna do about weekends are the different rules about that so be
sure try to avoid using a.m. p.m. for midnight and and then actually those
don’t have a M’s and PM’s associated with them technically but better to
write out noon and if you’re saying no noon is as bad as midnight well is
midnight associated with the night before or the morning of so be clear on
that it’s probably better to say 11:59 p.m. or 12:01 a.m. better to use
singular nouns to avoid ambiguity so for example in this sentence to the
knowledge of the sellers there are no structural problems with the building so
this could mean let’s say there are two sellers Bob and Teresa Bob happens to
know about structural problems to the building Theresa doesn’t so since
they as a unit don’t know only one of them knows this is a true statement
arguably but I think most of us when we hear this they would interpret that to
mean well Bob doesn’t know how many structural problems and also Theresa
doesn’t know about any structural problems and so by using the plural you
have created the opportunity for some point of confusion with respect to that green shell purchased 200 widgets from
ABC company provided that ABC manufactures them in blue does this mean
ABC must first manufacture the widgets in blue before a before green is
required to purchase or these reciprocal conditions mean that both must occur but
not stating in order so provided that does that mean that green hak-kan can
wait until they’ve already been manufactured before he purchases well is
ambiguous if you want to say that something must happen that someone is
required to under the terms of the contract we should say shall or must may
is a permitted situation not a required situation the problem with will is will
is just a predictor so we might say Bob will mow Larry’s yard I 3 p.m. on
Tuesday June 7th well we don’t have any words of command here this is like a
prediction hey you know we’ve gotten at our crystal ball and we’ve seen in the
future and we see Bob mowing Larry’s lawn at 3 before 3 p.m. on Tuesday June
7th but that doesn’t mean that Bob is required to do that we just mean this is
how what we predict will happen it’s just like you know on the eve of an
election there’s oftentimes a prediction you know someone someone might say I
predict that you know Susan’s green will become the next
well if it happens that her opponent becomes the president no contract has
been violated it was just a prediction about the future that didn’t end up
being correct so will is not good the more common phrase is shall this one
does require Bob to take this action if now if Bob if he doesn’t mow it by 3:00
p.m. on Tuesday June 7th he’s in breach of this contractual clause used mate I
mean the party has a right to take this action but isn’t required green may
order 200 more widgets on him before June 7th he has the option to do so but
he’s not required to that in which is a tricky thing let’s let’s talk about this
for a second bob has a dog that is a Dalmatian so listen sentence we’re talking about the fact that he has a dog that is of
this particular breed in this situation let’s assume that our first bob has one
dog Bob has a dog that is a donation so there would be no need to have the
second sentence except for the inclusion of this additional fact and so this is a
necessary part of this fact because if we make this fad go away we have exactly
the same facts that we did before so in in contract writing we assume that
everything has a has a purpose let’s look at this next sentence though bob
has two dogs bob has a dog that is a Dalmatian
he’s now focusing on this one dog he may be his other dog as a poodle so this is
necessary information okay let’s look at this sentence are
these two sentences bob has one dog his one dog which is a donation is also a
therapy dog this is the Stan ice little addition we don’t need this to
distinguish his his between his dogs now if we go back and write this sentence
and say bob has two dogs one of his dogs now we’re using this
Dalmatian fact to tell us which one of the dogs were talking about so now we’re
gonna switch it from a witch to that one of his dogs that is a donation is also a
therapy dog that’s not a very elegantly written sentence I apologize for that
but that gets you to the end date or the the goal there at least in a approximate
manner bi-weekly and by mostly are inherently ambiguous in the English
language we never want to use them bi-weekly can mean twice in a given week
or every other week by month it can mean two times in a week or every other month
so you just never want to use those words right and a number with both
numbers and letters so if we want to talk about a purchase price of 437
dollars and 32 cents we would say 437 dollars and 32 cents usually the written out numbers will
control over the type numbers because there’s a lot easier to accidentally
type the wrong number than it is to write out the words usually sins are not
spelled out you certainly can but I mean who really cares what it’s 32 cents or
33 cents I suppose if we’re buying a million units of these then these start
making content right so under those circumstances you certainly can write
out the numbers do not write a contract so that non parties are in and objects
have contractual duties for example the widgets shall be blue well what if they
aren’t blue are you gonna sue the widgets widgets you were supposed to be
blue start being blue right this very second no we would say ABC manufacturer
blue widgets for example assuming ABC is a party to the contract use active voice
instead of passive voice to make clear who shall do this tasks this is the same
problem we see here within a my objects the widget shall be made of aluminum who
shall make them of aluminum so Gore corporation shall make the widgets man shall make sorry already talked about the
definitions another thing to keep in mind is nobody reads a contract like a
good novel don’t try to make it interesting don’t try to make it
stylistically pleasing it’s not that type of document you don’t want to add
subtlety and ambiguity and colourfulness and interest you want it to be boring
that’s this it’s not I mean a boring country’s is not necessarily a
successful contract but an interesting to read contract I’m gonna have to say
has failed pretty miserably most likely let’s flip back to our action steps here we we talked about replacing nouns with
verbs this is that normalization so instead of saying collisions say kalaiy
instead of saying decisions they decide instead to say payments they pay trying
to avoid the to be verbs there’s eight to be verbs in English here let me take
this down so I can is are usually don’t say see an am in a contract but am is
are was were be being and then better to again there will be times obviously you
will use these words for sure that’s a certainty but it’s a better practice
when it makes sense to replace them with verbs that are actually action-oriented want to avoid sexist language I’m so
instead of saying fireman you say firefighters instead of saying chairmen
you say chair you want to use parallel construction when referring to men or
women and you want to avoid using he when a woman might be doing that tasks
or snoozing she when a male might be doing that tasks it might offend but it
also could create some ambiguity when you say he are you saying well you’re
breaching the contract if you have a woman do that particular task and again
probably a very easy fix in these situation is just to avoid the pronoun
entirely you don’t have to use pronouns at all in contracts this is probably a
better practice to use them sparingly if at all sometimes it may make sense to use the
plural instead of the singular but as we talked before soon as the plural can be
dangerous too so yeah there’s dangerous associate and singular a good idea once
you have a draft that you’re pretty satisfied with is to step away from it
for a while we don’t always have that luxury when we’re under a crunch for
time but perhaps you have another project that you can work on for an hour
or maybe take your 15-minute break or your your 30-minute lunch break and then
come back to it you may find that you have a little bit fresher eyes and can
spot things that you wouldn’t have been able to spot right off the bat many people think about the revision
process is having a macro component in a micro component different people use
different words for us but the macro part is more about well do I have all
the right clauses in them do I have them in the right places so we’re talking
about kind of moving around the big pieces you know if you’re designing a
house for example you’re thinking about do I want the master bedroom downstairs
or upstairs do I want there to be a jack-and-jill between the two upstairs
bedrooms where do I want the staircase to be those would be macro decisions a
micro decision might be where do I want to have the outlets in the bedroom do I
want to have a light fixture hanging from the ceiling or do I want to rely
upon floor and table lamps for lighting in that particular room how big do I
want to have the windows so if we translate those types of ideas to the
revision process the macro process will be deciding do I want a set of
limitations clause in it yes or no if I do where am I gonna put it
then I’m probably going to win I mean the micro stage work on that particular
clause but I’m no longer gonna be thinking about well do I have it in the
right place that’s the decision I’ve made now you know sometimes you may
discover after you’ve gone through the document you’ve done your macro you’ve
done your I grow and you’re near the finish line
you may look at it go gosh I thought that made sense there but now that I’ve
really gotten it pretty well tweaked it just doesn’t it doesn’t fit or somebody
comes to you who’s also working on the dot contract and you think it’s close to
being done but he or she says I just don’t think this fits here I think we
should move it to this other section so sometimes you will go back and after
you’ve done Micro for a while go back and do macro and that’s okay that’s part
of life if you go back and do micro macro realize that you’re probably going
to have to redo some of the micro that you’ve done at least on on that that
neighbourhood in your particular document the macro reviews the writing
as a whole as the writing do what it was intended to do is the organization
strong should the paragraphs or sections be reorganized are there any paragraphs
redundant or unnecessary are there any sentences redundant
unnecessary she senses be eliminated are there sections missing that we need to
add now the micro is about the more internal elements things like am I using
ambiguous words or my sense is too long those particular problems we’ve already
talked about in the other examples are they ambiguous of course grammar and
spelling that goes without question punctuation there’s there’s cases out
there for sure where parties have paid millions of dollars because either a
missing comma wasn’t inserted or a comma that shouldn’t have been inserted was
inserted so punctuation is a big deal well-written dress well written
documents require many drafts no one writes a contract and revises it once or
twice and has a document that’s stamp ready that’s ready to go out it’s just
not possible it requires a lot of work what I find is that students usually
have a document that pretty good for a second or third draft
they just haven’t taken the drafts to that that Stamper any that okay we’ve
gone through we’ve looked at everything standpoint sometimes they may have run
at a time and that happens to us all can’t can’t really happen once you’re
out practicing but when you’re doing homework you know it does happen
sometimes but sometimes I think it’s the students may not know exactly what to do
and so the documents that I posted these checklists may give you some ideas for
four things to do you can use this as a checklist you can look through and do
your word count for each one of your sentences test let me just show you how
you would do this on so you Mary since I’m gonna we’re just going to check this
one sentence here I am going to do a review and I’m going to check the word
count okay I have 15 words here there’s actually two sentences that’s pretty
good ideally you want to have senses that are
20 words or less I’m going to do a spelling and grammar check basic I don’t
know why I didn’t just do what I wanted me to do options proofing I don’t have the
readability statistics turned on sorry about that my bad
so I’ve let me just show you where to find this let me go back okay so if you
wanted a check this you go over here to file you go to options you go to
proofing I like to check for these top four and four all of these items I’m
gonna check for grammar and refinements I’m going to check for settings I’m
going to check for passive voice pass the noise with an unknown actor I’m
gonna check for most of these things we do check for the Oxford comma we want to
have punctuation with colon it inside and I only want to have a single space
between sentences we’ll go ahead and check for cliches too yeah we’ll check for we think of it is
even though there’s checking for things that maybe we won’t agree about at least
we’ll have a starting point okay so we have 14 words one paragraph two
sentences so we have two sentences per paragraph we have seven words per
sentence you can see that the grade level is a ninth grade reading level we
don’t have any passive voice sentences so you can see that’s a pretty effective
example so the statistics that word can give you will get you a pretty far down
the road to evaluate let’s consider let’s just consider this sentence right
here so this one has 14 words a sentence it’s not in passive voice it gives us
this so it’s it doesn’t apparently check for the closeness of the subject with
the verb so word isn’t going to check for everything that you want to check
for it’s good to know what word will check for when it won’t it will find
passive voice so let me just did one since in passive voice the letter was
mailed to Erin by Bob so we’ll just look at these three sentences here ignore
what so it’s reminding me about the passive voice I’m just going to ignore
and we’ll get our grain here looked at three sentences words per sentence is a
little bit over this it has one of its sensors and passive voice it finds a
sense is very simple but the fact that one sense was in passive voice did I’m
sure drop this a number a little bit lower anyway this can be a helpful guide
use word to help you get to some of this data points some of these data points go
through and just look for nominalizations
go through and look for negations all of these steps if you’re looking for
additional edits to do if you’re not sure what to do after your second or
third edit hopefully these are some ideas that you may want to explore obviously check spelling punctuation and
grammar you don’t need to do this throughout the process and as students
you know we’ll still be in the macro phrase in it they’re still moving the
big furniture around the room and it doesn’t make sense to worry about
grammar at that point because that sentence that you’re so focused on
getting all the grammar good it’s probably gonna be re-written twelve
different times before you get to the finish so why perfect something that
you’re then going to tear up you know a little bit later it’s a little bit like
you know putting the fruit in the fruit bowl in the coffee table when you know
you’re going to end up moving the coffee table twelve more times before you’re
done why not wait for those finishing details until you actually need them at
the very end so this this is stuff you’re going to focus on near the end
you know why spell it why worry about spelling that word when you might well
change that word to some other alright use the Oxford comma that’s the serial
comma let me show you oops wait a second let me go back here
and we’ll talk a little bit about the Oxford comma so here we have I will buy
an apple a gallon milk and orange juice okay so the question is do I put a comma
here or not if I put a comma here I’m gonna have three things in my basket an
apple a gallon of milk and some orange juice if I don’t put a comma here it
looks like I’m only gonna have two things in my button basket at the
grocery store an apple and some very strange beverage that has both milk
and/or an orange juice in the gallon container it’s also weirdly phrase
because usually when you have two items in your list you’re just going to unite
them with a comment I’ll have a comma there so it’s you’re not quite sure what
to do with it something’s gone wrong either you miss this comma here or you
have a very strange beverage and you shouldn’t have this comma here is the
Oxford comma required in English it isn’t it why say ah Chris come I mean
this come on it’s not required and in fact when you read most books and most
newspapers you won’t see the Oxford comma I think the reason is that the
Oxford comma if you use it consistently takes up more
print space you know the ink that is used isn’t free and it certainly takes
more paper to write that particular item and so as a result newspapers and books
have typically decided to save the ink and sacrificed a little bit of precision
with the language again legal writers are more interested in the precision
than in saving trees or ink and things along those lines so we are big
proponents of the Oxford comma there will occasionally be times though when
Oxford comma will actually make us innings more ambiguous and so be aware
that there can be some times where it’s smart to drop the Afrikaner but err on
the side of inclusion of that comma and not exclusion of that comma pretty
commonly I see students get commas colons and semicolons confused be sure
that you know when to use which one the simpler the shorter your senses are the
safer you’re going to be if you’re not confident in these
areas but even in those cases you ultimately are going to have to learn
what these functions are that’s especially true with commas and
semicolons if you don’t know when to use one or the other don’t guess just go
ahead and look it up to make sure that you are using the right format for that
particular romantical rule well let me show you where to find all these tools
that we’ve been going through here let me launch the student view for this so
I’m going to go down to chapter 17 and what I’ve done is I have taken I’m sorry
I’m in the wrong class forget that we’ll go to the right class here apologize let’s roll down to chapter 17 and you
can see I have some items here contract grant drafting guidelines drafting a
contract this is the PowerPoint and organization of a contract these are the
three items that I’ve used in this lecture well I hope that this
presentation has been helpful as always if you have questions about the content
please don’t hesitate to contact me my email is C groover at Collins edu or
better yet come and see me so we can talk about these ideas face to face I
would love to engage in a discussion about these in more detail as always I
thank you for your attention and I hope that you have a wonderful day
take care

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