The BUSKLAW Newsletter

Some folks may believe that writing well and Christmas have little in common, but I dispelled that notion two years ago in  my post about writing well on Christmas . And I have uncovered additional evidence for this holiday season.  I wasn't looking for that evidence, but it popped up in a sales contract that I was reading. The line was something like, "If any Good is nonconforming...." Wait a second. How can the "Good" be non-conforming? Wouldn't that fall to the province of the "Bad"? Then it hit me: the drafter was using "Good" as the singular of "Goods," a term of art defined in the Uniform Commercial Code ("UCC"), the statute regulating the sale of Goods adopted by almost every State.  But not "Good." The UCC doesn't use that word. The reason is simple. Would you walk into your local dry cleaners and ask "Is my pant ready?" You would likely get a quizzical expression from the clerk who mi...

To continue the title: Paul. As in Sir Paul McCartney . But in 1969, there was a problem: several radio stations broadcast a conspiracy theory: Paul died in a car crash in 1966 . And the remaining Beatles covered it up and replaced the dead Paul with an (apparently equally-talented) imposter. Fans began scouring Beatles songs for evidence of the ruse; they pointed to "The walrus was Paul" line from the song  W hite Onion , concluding that "walrus" was the Greek word for corpse (it isn't). in reality, John Lennon was messing with fans' propensity to find meaning to those lyrics when there was none. In an interview for what later became the Beatles Anthology television documentary , John said:  I threw the line in—"the Walrus was Paul"—just to confuse everybody a bit more. It could have been "The fox terrier is Paul." I mean, it's just a bit of poetry. I was having a laugh because there'd been so much gobbledygook about Pepper—...

In contracts, words are weapons. A lawyer who effectively drafts contracts will make careful word choices because the client's fate often depends on it. And every word in a contract has meaning: two recent cases support that truth.  First, we have Heimer v. Companion Life Insurance Co. , a 6th Circuit Court of Appeals decision issued just a few days ago. One Beau Heimer got drunk with his friends, but they all decided to take their motorbikes off-road for even more fun. Unfortunately, Beau collided with one of his pals and suffered major injuries; the medical expenses to put Beau back into some semblance of order exceeded $200,000.00. Beau filed a claim with Companion Insurance, but they declined to pay. Why? Because the vehicle insurance policy that they issued to Beau contained an exclusion for the illegal use of alcohol .  Beau's attorney was crafty. He argued that Beau didn't illegally use alcohol. Beau was not a minor and didn't drink in defiance of a court ...

(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 evangeli...

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 ...

"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 supe...

I love pie and plain English about equally, although plain English is less fattening. Pie - especially the caramel toffee apple variety - for Thanksgiving is especially grand because afterward, you can eat leftover pie for breakfast without a lot of guilt. And chances are that the rest of the household won't consider pie a suitable breakfast food, so you're good to go.  Grand Rapids, Michigan, is blessed with an excellent source of pies: Sweetie-licious . Until recently, they had two locations: one in GR's Downtown Market  and the other in beautiful  East Grand Rapids . I grew up in EGR and still fond of the place. So it was very convenient to journey across town to Sweetie's EGR location to pick up a pie for holidays (or when the pie lust grew to be unbearable). Because life isn't fair, Sweetie-licious closed its EGR location several months ago. (But mercifully their Downtown Market location is still going strong.) When I sauntered past their empty EGR sto...

Until 1800 or so, lawyers who drafted contracts in the U.K. were called scriveners, and they were paid by the number of words in their documents. More words resulted in more money. This encouraged the use of excessive words in contracts - and the legal mumbo jumbo that plagues the legal profession to this day.  "Empty" words in a contract are more than just unnecessary; they create ambiguity, cause confusion, incite litigation, and increase the time it takes to read and understand a contract, especially for the business folks who must understand the contract to effectively administer it.   Most contracts (especially the forms that you can download from LegalZoom and R ocketLawyer - excuse me if I don't give you the links) contain empty words, and these are some of the worst offenders: Archaic words. At the beginning of a contract, you'll often see a paragraph with the heading "Recitals" followed by several "Whereas" clauses and conclud...

This post is directed to a small Michigan-based technology business with several employees who write code or produce other creative work. Start-up technology businesses may find this post especially relevant; established smaller technology firms may also find this useful. As always, the recommendations in this post should not be taken as legal advice and are simply general guidelines for your consideration. Here are what I consider basic legal protections that you – the astute entrepreneur - should have in place for your technology business from the day that you open the door: Protect Your Intellectual Property . Your creative output may be protected by U.S. patent, copyright, trademark, or trade secret law. Know the basics of these legal protections by reading this excellent article in the February, 2016 issue of the Michigan Bar Journal . Then, find a good intellectual property (I.P.) attorney to discuss the best cost-effective ways to protect your valuable I.P. assets....

I just read a public letter from the senior management of a Michigan-based advocacy group to our esteemed Michigan governor that includes this gem of a sentence: "Despite claims and assurances of those representing the Health Care Plans, experiences in other states, with recent, very small minor exceptions, not involve persons with developmental services, except for State Plan, medical services." Really? This is bureaucratese (if not lousy writing) at its finest! Do you figure our governor will have any idea of what this sentence means? 40 lashes with a wet noodle for the group that sent this out. You should know better. (And I may contact you to offer my services as an editor - at no charge - to prevent this from ever happening again!!)

'Tis the holiday season. Folks are hanging their Xmas stockings in the hope that S. Claus will fill them with goodies - not lumps of coal - on Xmas Eve. So let's see if your contracts contain troublesome legal jargon that serves no legal or business purpose - contractual lumps of coal.  As you sip your (hopefully fortified) eggnog and scarf down a holiday cookie (or better yet, a Marge's donut ), why not fire up your word-processing software, pull up a recent business contract or two, hit the "find" command, and enter the following words or phrases: "In consideration of" or "for good and valuable consideration"         This is a lump of coal because if there is no actual consideration  (e.g., money changing hands)  in your contract , merely reciting this phrase won't make your contract enforceable. The same analysis applies to the following common contractual phrase, "intending to be legally bound." (Tip of the hat to legal ...

If you are a business person working with contracts, you probably already know that lawsuits - regardless of their outcome - are expensive and time-consuming. And "alternative" dispute resolution procedures such as arbitration don't fare much better if standard arbitration clauses are used. (I use a unique arbitration clause that streamlines the process.) It's better to avoid litigation or arbitration altogether; the best way to do that is to have a contract with provisions that discourage one party from filing suit - or an arbitration petition - against the other party.  What might these anti-litigation, anti-arbitration contractual provisions be? Several come to mind: 1.  A provision that in any lawsuit or arbitration between the parties, the losing party must pay the winning party's attorney fees and court costs. As Attorney Stephen Hulst points out in his Michigan Business Court Blog (9/1/2015) , "It's a good piece of leverage to have, to be ab...

If you're a fan of the Peter Jackson Hobbit movies, you may recall the intimidating contract that the Dwarves foisted upon poor Bilbo Baggins in the first movie ( The Hobbit: An Unexpected Journey ). That contract was full of legal jargon. So my colleague Michael Braem and I decided to write about it for the August, 2015 Michigan Bar Journal's Plain Language column. Here's the link:  http://www.michbar.org/file/barjournal/article/documents/pdf4article2677.pdf . For those of you unfamiliar with the first Hobbit movie, here's a link to a You Tube video showing the Dwarf-drafted contract - and Bilbo's reaction to it: https://www.youtube.com/watch?v=Z2idYEBi51c I'd like to thank Michael for our collaboration and Professor Joe Kimble for thinking out of the box for this Plain Language column. Also, much gratitude goes to the author and designer of the prop contract, New Zealand artist Daniel Reeve, for exchanging numerous emails with the authors about why ...