Contract Drafting : Powerful Prose in Transactional Practice / Lenne Eidson Espenschied.

Format:

Book

Author/Creator:

Espenschied, Lenné Eidson, author.

Language:

English

Subjects (All):

Contracts--United States--Language.

Contracts.

Legal composition.

Physical Description:

1 online resource (373 pages)

Edition:

Third edition.

Place of Publication:

Cleveland : American Bar Association, 2021.

Chicago, Illinois : American Bar Association, [2019]

Summary:

Contract Drafting: Powerful Prose in Transactional Practice, Third Edition offers an expansive approach to studying the transactional lawyer's responsibilities as contract drafter.

Contents:

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

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&amp

A Transactions.

Indemnity Escrow Agreements

Thresholds and "Baskets"

Materiality Scrapes

Indemnification Caps

9.10 Determine if R&amp

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.

Notes:

Includes index.

Description based on print version record.

ISBN:

1-64105-333-X

OCLC:

1262373575