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A BUSKLAW Newsletter Aside: Links to My Michigan Bar Journal Plain-Language Articles

Since my retirement from in-house corporate law in 2014, I've written or co-written several articles about using plain-language in contracts for the Michigan Bar Journal. And a new article has recently appeared in the October 2017 issue. But those articles haven't been a lone endeavor in any sense; I've had several plain-language experts give me their input along the way:
Plain English Scholar and WMU-Cooley Law School Distinguished Professor Emeritus Joe Kimblewho invited me to write for the Journal to begin with and has since freely given me editorial advice that not only benefits the particular article du jour but also helps my legal writing generally. And a hat tip to Journal Editor Linda Novak who has put, editorially-speaking, the "frosting on the cake" before publication of these articles. Michael Braem, J.D., Contract Manager of the Michigan State University College of Human Medicine, who has co-authored some of the articles with me. Michael has also becom…
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The BUSKLAW October Newsletter: Liquidated Damages Must be Reasonable to be Enforceable

This Photo by Unknown Author is licensed under CC By-SA

In last month's newsletter, we determined that Michigan law doesn't recognize the concept that "unreasonable" or adhesion contracts are unenforceable. But there is a caveat: a liquidated damages contractual provision must be reasonable to be enforceable. 

A liquidated damages provision is a term of art in the legal world. It applies when, according to Professor Bryan Garner, the parties to a contract agree in advance on the measure of damages to be assessed if a party defaults. Liquidated damages provisions are common in employee non-competition agreements, and it was that clause in one such agreement that Kent County Circuit Court Judge Christopher Yates examined in the case of Alpha Automotive v Cunningham Chrysler of Edinboro.

The facts of the case are simple. Cunningham is a car dealer who contracted with Alpha to conduct promotional events to sell Cunningham&#…

The BUSKLAW September Newsletter: No Judicial Sympathy for "Unreasonable" Contracts in Michigan

If you work with contracts, it's just a matter of time before a contract with an "unreasonable" provision is sitting on your desk. Perhaps this happened because your company didn't have enough bargaining leverage to get the other party to change the unreasonable provision, but your senior management directed you to proceed anyway. Or maybe the unreasonable provision snuck in during the heat of contract negotiation and wasn't noticed until months later. In any event, you're thinking about going to court and arguing that the unreasonable provision should be disregarded (or even invalidate the contract). What are your chances? 

In Michigan, you'll have an uphill battle, as the plaintiffs found out in the case of Rory v Continental Insurance Company CNA that was decided by the Michigan Supreme Court in 2005 and, to my knowledge, is still good law. The contract at issue was an auto insurance policy issued by Continental to Rory. (Yes, an insurance policy is a c…

The BUSKLAW August Newsletter: This Single-Sentence Contractual Provision Can Save - or Ruin - Your Day!

When it comes to business contracts, some provisions are more important than others. And it's true that some of these critical clauses are buried deep within a contract, so by the time you get to them, your eyes are glazed over, and you gloss over them. But that could be unfortunate. 

One such provision is what lawyers call the choice of lawand forum selection clause (for convenience, "COLFS"). That clause typically reads as follows:

The validity, interpretation, and construction of this agreement are governed by the laws of the State of [INSERT STATE], and any and all claims hereunder shall be brought in [SPECIFY NAME OF COURT AND COUNTY].

A recent decision by Kent County Circuit Court Judge Christopher Yates underscores the importance of a COLFS provision in an employment contract between OtterBase, a Grand Rapids, MI-based staffing firm, and two of their former employees, Carrie Rogers and Emily Reed. Rogers and Reed had experience in the staffing services industry in so…

The BUSKLAW July Newsletter: Addendum to the Moral Imperative of Plain Language: The Judeo-Christian Imperative

(Note: you may want to stop here if you aren't a spiritual person in the Judeo-Christian tradition.)

As an introduction to this post, I'll share my religious background. I was brought up in the Protestant tradition with the Dutch Reformed twist. But when friends ask me what I really believe in, I hedge my bets based on:
I went to Hope College, affiliated with the Reformed Church in America. I went to Notre Dame Law School, a respected Catholic institution.I'm a quarter Jewish and was cared for by a fairly authentic Jewish mom (who was thankfully tempered by my 100% Danish father). So at the pearly gates, I'll show Saint Peter (or whoever) the three Protestant-Catholic-Jew entry tickets reflecting this background, and hopefully one (or more) will allow passage. 

So now that I've disclosed my broad-minded belief system, here's my thesis: using plain language furthers the Christian and Jewish faiths. 

Contemporary Christian evangelist Rob Bell talks about ways in whic…

The BUSKLAW June Newsletter: Is There a Moral Imperative to Plain English? Part 2: Conclusions

In last month's newsletter, we gave three examples of wordy, unclear, racist, pompous, and dull writing: as an opening sentence to a Bizarro-World version of Stephen King's The Gunslinger, as the beginning of a typical "big law firm"-drafted contract, and bureaucratic (including political) statements. We then compared these monsters of prose to their plain-English versions. But so what? Is poor literary, legal, business, and government writing merely a mote in the eye or something more sinister? 

Let's start with bureaucratese. The Trump Administration didn't invent it but surely has taken this dark art to new heights (or depths). And their penchant for typographical errors is a new twist. In this recent Business Insider article, 84% of 1,043 people surveyed said they would be less likely to trust the government if its communications contained spelling or grammatical mistakes. Specifically addressing Trump's notorious tweets containing such gems as "u…

The BUSKLAW May Newsletter: Is There a Moral Imperative to Plain English? Part 1 - Examples

"The man in black fled across the desert, and the gunslinger followed." 

Thus begins Stephen King's epic story of the gunslinger, Roland Deschain, and the popular Dark Tower series of novels describing his adventures. But King didn't have to write this sentence that way; he could have consulted with the typical lawyer, politician, or company PR department first. Had he done so, the sentence may have appeared so:

"The bad hombre who was dressed mostly in dark clothing and running fast across an arid land was pursued by a multi-armed, extremely dangerous, and notorious vigilante."
The difference in these two sentences is clear. King's concise short sentence creates an image that grabs the reader's attention and raises provocative questions. Who is the man in black? Who is the gunslinger? Why is he after the man in black? But the Bizarro World Stephen King sentence - with its ethnic slur, passive voice, ambiguity, suppositions, and superfluous adjectives …