Contract Drafting: Powerful Prose in Transactional Practice, Third Edition

Name: Contract Drafting: Powerful Prose in Transactional Practice, Third Edition | Powerful Prose in Transactional Practice, Third Edition
Brand: American Bar Association
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Powerful Prose in Transactional Practice, Third Edition

Lenne Eidson Espenschied(Autor*in)

American Bar Association (Verlag)

Erschienen am 7. April 2020

465 Seiten

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Beschreibung

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Inhalt

Intro
Title Page
Copyright Page
Table of Contents
Acknowledgments
Preface
Preface to 2nd Edition
Preface to 3rd Edition
Chapter 1: Introduction to Contract Drafting
Introduction
What Is Drafting?
What Does a Transactional Lawyer Do?
Exercise
Focus of this Treatise
1.1 Understand Key Differences between Contract Drafting and Legal Writing.
1.2 Define the Characteristics of Excellent Drafting.
Exercise 1.2
1.3 Attend to Appearance.
Case Study
Chapter 2: Drafting in Transactional Practice
2.1 Explore the Status Quo of Drafting in the Legal Profession.
Limitations of Law School Training
The Benchmark of Subject Mastery
2.2 Barriers to Improvement.
2.3 The Strong Arm for Improvement.
2.4 Realize Potential Costs of Deficient Drafting.
2.5 Ethical Issues in Drafting.
What Is "Competence" with Respect to Drafting a Contract?
What Does an Incompetently Drafted Contract Look Like?
An Incredibly Low Standard
2.6 Cultivate Personal Branding.
Chapter 3: Avoid Ambiguity
3.1 Strive for Clarity
Avoid Ambiguity.
"Clarity," "Ambiguity," and "Vagueness"
What Happens When Courts Encounter Ambiguity in Contracts?
Who Knew What, and When?
3.2 Types of Ambiguity.
Semantic Ambiguity
o Patently ambiguous words
o Latently ambiguous words
o Usage issues
Syntactic Ambiguity
o Poorly organized sentences
o Squinting modifiers
o Misplaced modifiers
o Dangling modifiers
o Uncertain pronoun references
o Prepositional phrases
o Conjunctions
o Only
Contextual Ambiguity
Exercise 3.2
3.3 Balance Competence and Vagueness.
3.4 How Grammar Errors Cause Ambiguity.
3.5 Consider Canons of Construction.
Be Aware of Canons but Do Not Take Shortcuts
o No excess words
o Noscitur a sociis
o Ejusdem generis
o Expressio unius est exclusio alterius
o Contra proferentem
o Reddendo singula singulis
o Ut magis valeat quam pereat
o In pari materia
Chapter 4: Focus on Words
4.1 Prefer Simple Words.
How to Draft in Plain English
Exercise 4.1
4.2 Avoid Archaic Customs.
4.3 Use Words Consistently.
Best Efforts/Reasonable Efforts/Commercially Reasonable Efforts
4.4 Use "Shall" Consistently.
The Great Debate
Exercise 4.4
4.5 Avoid These Words in Contracts.
Ambiguous Words
o And/or: The Janus-Faced monstrosity
o Provisos
o Herein
o Notwithstanding
Legalese
o Here-, there-, and where- words
o Such, said, and same
o Foreign phrases
4.6 Use Defined Terms Correctly.
Errors with Integrated Definitions
Complete or Incomplete?
When and How to Use a Glossary
Are Articles Required?
Case Study 4.6A
Case Study 4.6B
4.7 Use "That" or "Which" Correctly.
Exercise 4.7
Chapter 5: Focus on Sentence Structure
5.1 Choose Correct Language for the Intended Consequence.
Duty
Negating a Duty
A Negative Obligation
Indirect Duty
Right
Negating a Right
Privilege
Negating a Privilege
Present Action
Policy
Condition
5.2 Shorten Average Sentence Length.
Assess Readability
Readability Statutes
Case Study 5A
5.3 Eliminate Clutter and Redundant Language.
Get to the Point
Eliminate Repetitive Phrases of Agreement or Understanding
Eliminate Unnecessary Strings of Words
Eliminate Common Doublets and Triplets
Exercise 5.3
5.4 Draft Performance Provisions in Active Voice.
Use Active Voice in Performance Provisions
Passive Voice in Miscellaneous Provisions
Passive Voice in Representations and Warranties
Passive Voice in Uncertainty
"There is," "There are," or, Even Worse, "There shall be"
Exercise 5.4
5.5 Convert Hidden Verbs.
Exercise 5.5
5.6 Structure Sentences Logically.
Case Study 5B
Case Study 5B, Revised
5.7 Draft in Parallel Structure.
5.8 Use Tabulations to Eliminate Ambiguity.
Exercise 5.8A
Exercise 5.8B
Case Study 5C
Case Study 5C, Revised
Case Study 5D
Case Study 5D, Revised
5.9 Avoid Ambiguous Phrasing.
Between . . . and . . .
After . . . before
From . . . to
Until
By
Starting
Through
Within
5.10 Do Not Reinvent the Cube.
Chapter 6: Context and Contextual Ambiguity
6.1 The Legal Context of Contract Drafting.
6.2 Outside Influences that Affect a Contract.
UCC and other Gap Fillers
Required Disclosures
Enforceability Issues
6.3 Third-Party Contracts.
6.4 Improve Organization.
How to Organize the Contract
Use a Simple Numbering System
Case Study 6.4
6.5 Integrate Inserts.
6.6 Keep Related Contracts Consistent.
Chapter 7: Components of a Contract
7.1 Select the Contract Format.
7.2 Identify the Parts of a Contract.
Name or Title of the Contract
Introduction
Statement of Purpose
Statement of Agreement
Definitions
Performance Provisions
Miscellaneous Provisions
Signature Blocks
Schedules and Exhibits
7.3 Avoid Consideration Recitals.
7.4 Understand the Effects of Seal.
7.5 Conform E-Sign.
7.6 Link Schedules and Exhibits.
7.7 Be Wary with Virtual Attachments.
7.8 Differentiate Point of View in Contract Drafting.
7.9 Draft Gender Free.
Grammatically Correct Methods for Eliminating Gender Pronouns
o Plural nouns
o Second person
o Articles
o Repeat the noun
o Omit It?
o Indefinite pronouns
o Zoom out
Chapter 8: Understand the Transaction
Allocate Risk
8.1 Understand the Proposed Transaction.
8.2 Understand the Audience.
Exercise 8.2
8.3 Gather Data Effectively.
Who
What
When
Where
Why
How
How Much
Exercise 8.3
8.4 Understand Whether Provisions Are Required, Essential, Strongly Recommended, or Optional.
Required
Essential
Strongly Recommended
Optional
Exercise 8.4
8.5 Start with Provisions that Favor Your Client.
8.6 Draft to Allocate Risk.
Case Studies
8.7 Identify the Range of Risk.
Exercise 8.7
8.8 Understand Risk in Key Performance Provisions.
Scope
Representations and Warranties
Express Warranties, Limited Warranties, and Disclaimers
o Express warranties
o Warranty of merchantability
o Warranty of fitness for particular purpose
o The limited warranty paradox
o Exclusion v. disclaimer
Limitations of Liability
o Tort claims
o Breach of contract claims
Liquidated Damage Clauses
Term and Termination Provisions
8.9 Track Money and Alternative Outcomes.
Exercise 8.9
8.10 Be Accountable.
Notwithstanding Anything to the Contrary
Except as the Context Otherwise Requires
For the Avoidance of Doubt
The Headings and Captions in this Agreement Are for Convenience Only . . .
Hereinafter Referred to as "Company," "ABC," or "Atlas"
Chapter 9: Focus on Indemnification Provisions
9.1 How Indemnification Is Used.
9.2 Types of Indemnification.
Unilateral
Reciprocal
Exculpatory
Partial
Financial
Direct
9.3 The Hold Harmless Conundrum.
9.4 Consider Plausible Authorities.
The Status Quo Among the Bar
Treatise Authorities
The Case Law
Delaware Cases
Majkowski v. American Imaging Management Services, LLC
Majkowski's Progeny
Cases from Other Jurisdictions
o Third Circuit Court of Appeals: Travelers Indemnity v. Dammann
o Ninth Circuit Court of Appeals: U.S. v. Contract Management
o California: Queen Villas HOA v. TCB
o Minnesota - Johnson v. Johnson, (Minn. App. 9/25/17)
o Florida Cases
o Other Jurisdictions
The Mother May I? Case
Other Interpretations of "Hold Harmless"
9.5 Recommendations Regarding "Hold Harmless."
9.6 Defense Is a Variable.
9.7 Drafting an Indemnification Provision.
Break Down the Components
Arrange the Components in Order
Tweak the Components as Necessary for this Transaction
o Who is providing the indemnification?
o What protection is provided?
o Who is receiving the indemnification?
o What is indemnified against?
o How does the indemnification attach?
o What is carved out or forced in?
o What are the additional requirements?
9.8 Consider Secondary Concepts.
9.9 Special Indemnification Issues in M&A Transactions.
Indemnity Escrow Agreements
Thresholds and "Baskets"
Materiality Scrapes
Indemnification Caps
9.10 Determine if R&W Insurance Is Appropriate.
9.11 Force Structure in the Indemnification Section.
Exercise 9.11
Chapter 10: Focus on Earnout Provisions
10.1 How Earnout Provisions Are Used.
10.2 Review and Consider Recent Earnout Cases.
Lazard v. QinetiQ
SRS v. Gilead Sciences, Inc.
SRS v. Valeant Pharmaceuticals
GreenStar IH Rep, LLC v. Tutor Perini Corp
10.3 Apply Practical Guidance.
10.4 Drafting Tips.
Chapter 11: Understand Miscellaneous Provisions
11.1 What Is "Boilerplate" in a Contract?
11.2 Understand the Effects of Key Miscellaneous Provisions.
Integration/Entire Agreement/Merger Clause
Severability/Saving Clause
Assignment
Governing Law/Choice of Law
Notice
Force Majeure
Amendment/Modification
Waiver/No Waiver
Survival
Captions and Headings
Counterparts
Drafting Parties
Exercise 11.2
Chapter 12: Consider These Issues
12.1 Simplify the Math.
Three Methods
Apply Mathematical Conventions
Apply the Order of Operations
Test Formulas for a Range of Possibilities
When to Use "Buckets"
Exercise 12.1
12.2 Avoid Gaps in Ranges and Shifting Rates.
12.3 Use Numbering Conventions Consistently.
12.4 Consider Alternative Dispute Resolution.
Step Negotiation
Mediation
Arbitration
Standing Neutral
12.5 Consider Incoterms for International Transactions.
12.6 Amend Carefully.
Case Study
Chapter 13: Edit or Review Effectively
13.1 Edit Contracts Effectively.
Substantive Edit
Mechanical Edit
Semantic Edit
Syntactic Edit
13.2 Review Contracts Prepared by Opposing Counsel Effectively.
Prepare
Familiarize
Confirm Key Business Terms
Identify Legal Issues
Identify Ambiguous Language
Discuss Key Issues with the Client
Revise
Proofread
Case Study
13.3 Scrub Contracts before Sharing.
What Is Metadata?
What Data Is Stored?
What Is a Lawyer's Responsibility for Metadata?
How to Remove Metadata
13.4 Share with Care.
13.5 Resolve "Cloud" Issues.
Model Rule 5.3
Advantages of Cloud Computing
Disadvantages of Cloud Computing
The American Bar Association's Position
Recommendations
o Keep a record of due diligence
o Obtain client consent
o Do not use free cloud computing software apps
o Secure all devices and vigilantly protect passwords
o Do not use Cloud Computing for highly sensitive matters, no matter what
o Read reviews of the app, including those published online by other lawyers
o Study the terms and conditions of the license agreement and negotiate accordingly
Appendix A: Traditional Form Contract
Appendix B: Schedule Agreement
Appendix C: Letter Agreement
Appendix D: Suggested Answers to Exercises
Glossary
About the Author
Index

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