Dilbert on Contract Drafting

Sometimes the distinctions that contract drafters are most vehement about are those that happen to be spurious. Consider, for example, the pointless debate over whether to use between or among in the introductory clause. (See MSCD ¶ 2.21.) It’s similarly unnecessary to make a fetish of using stockholder rather than shareholder—in contracts and elsewhere—when the corporation in question was formed under Delaware law. Insisting on this distinction would seem odd, in that stock... more

I’m fond of invoking two overarching rules of drafting—“be consistent� and “use standard English.� I periodically mull adding a third. Possible candidates come and go, but a current favorite is “say what you mean.� In other words, don’t use stock phrases in the hope that a court will construe them in the way you intended. Instead, address issues head-on. A case in point is “time is of the essence.� Its widespread use by nonlawyers makes it, in Bryan Garner’s phrase, a... more

Welcome to my new blog. And more generally, welcome to my new web site. They mark the beginning of a new adventure: Over the past several years, I’ve been devoting an increasing proportion of my time and energy to all things contract drafting. Now I’ve taken the final step and turned this engrossing sideline into my livelihood. As for the blog, it has a specific function. Even after a couple of books and a dozen articles, I still have lots to write about. I’ll continue to use articl... more

Last February, Wayne Schiess, Director of Legal Writing at the University of Texas School of Law, asked me whether I had any views on a question that he had posed in his blog : Is there a difference between giving notice and giving prior notice? At the time my home office was draped in drop cloths, so my response was perfunctory and equivocal. Wayne ended up suggesting that there was a consensus that the concept of prior is inherent in notice, but he quickly followed up with the caveat ... more