Take Care: Headings Can Affect Contract Interpretation

As a general practice, section headings should be used to identify the general subject matter of each contract provision, making it easier for the reader. Section headings are very useful for ease of reference. They enable the reader to skim an agreement when searching for a particular provision or group of provisions. But headings can be a trap for the unwary—courts have used them to interpret the parties’ intent when a provision is ambiguous or misleading. Here’s how to protect yourself from the unintended consequences of headings. Continue reading

How to Provide for Extending a Contract Term

agreement includes extension provisionMany contracts that have a fixed term provide for extending or renewing that term. Before you draft an extension clause, consider the common issues involved and review our sample language. Continue reading

Don’t Leave It to a Court to Figure Out Contract Conditions

Parties often need to include conditions to the performance obligations of one or both parties in a contract. Common examples include conditions requiring that one party give consent before the other party’s rights may be exercised (e.g., “Tenant may not assign the lease without Landlord’s consent”) or that one party be “satisfied” with a product or performance before payment or other action is due (e.g., “Publisher will market Author’s text if Publisher is satisfied with its content”). But contract drafters should be wary—these conditions can be a source of much litigation.

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How to Write Effectively

When drafting any document—from a contract to a research memo—always remember: Effective documents are written in a way that the reader can easily read and understand. Here are eight techniques to make your writing as clear, and thus as effective, as possible. Continue reading

Oh, What a Difference Plain English Makes!

Any document you draft—from an email to a settlement agreement—should be written in plain, understandable language. But many attorneys still fall into the trap of using stilted, legalistic language, particularly in contracts and other transactional documents. Compare the following purchase agreement recitals and see what a difference plain English makes. Continue reading

5 Writing Tips for Every Contract You Draft

fivesteps_140389068A contract is a form of communication that a diverse audience will read and use. Attorneys who focus strictly on the legal terms and not on their word usage may find that style got in the way of substance. Don’t let that happen to you—review and apply these five writing tips whenever you draft a contact of any kind. Continue reading

Headings Are Key to an Effective Document

Whatever document you’re drafting—from a memorandum for a partner to a brief for the court—using clear and concise headings and subheadings will take your reader by the hand and lead them smoothly through your document. Here’s some advice from noted appellate attorneys Daniel U. Smith and Valerie T. McGinty on making your headings as useful and effective as possible. Continue reading

7 Tips for Making Supporting Memos More Persuasive

Almost all motions and demurrers must be supported by a memorandum. Cal Rules of Ct 3.1113. Your supporting memorandum convinces the judge that the law and facts support the order you want. The objective is to persuade—the memo may be your main shot at doing so, as judges issue a tentative ruling or come to the hearing with a ruling in mind based on the motion and response papers. Continue reading

4 Ways to Avoid Ambiguity in Your Writing

Ambiguity in any writing is annoying, but in a contract it can be devastating if you wrote it, because any ambiguity in a contract is likely to be construed against you. Here are some ways to avoid ambiguity in your next writing. Continue reading

Turn Legalese into Plain English

174431990A contract shouldn’t require a Latin-English dictionary to understand it! In fact, there’s generally no reason to use Latin terms or formal legal language (legalese) at all. Use plain English to be sure the contracts and other documents you’re writing are in a language that the parties can read and understand. Here’s a chart to keep handy next time you’re drafting a legal document (or to discreetly slip to a legalese-laden colleague). Continue reading