The BUSKLAW Newsletter

“Career Path” is an overused term to describe how we should conduct our professional lives to reach our full potential. In my experience, most self-help books on this subject assume that we have more control over our lives than we actually do. The old adage, “Man proposes, God disposes,” is not evident in these books. And yet there are ways for contracts lawyers to reach their full potential - how about by catching those pesky typographical errors ("typos")?  Is there anything more rewarding to a contracts lawyer than catching a typographical error? Of course not. I once did a long and complicated real estate license agreement, only to have my client point out the fact that on page 39, section 1, paragraph A, subsection (i), clause (z) of the contract I drafted, the word “thee” should be “the.” I can’t tell you enough about the warm fuzzy feeling that this observation created in the depths of my soul!  At best, typographical errors are embarrassing and have only...

I don't usually post links to comic strips, but this one to Pearls Before Swine relates to contracts, so here you go - it's good for a few laughs before Xmas: http://www.gocomics.com/pearlsbeforeswine/2015/12/20

'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 ...

Do you need a contract for your business? What if you don't have a lawyer to call for that? Do you jump on the Web, go to the first DIY legal site that Google brings up, select a form that sounds right, download it for a fee, fill in the blanks, and hope for the best? Or do you find an old contract that your lawyer drafted for a similar deal and just change the parties' names, the date, the business information, and send it to the other side for signature?  Congratulations! You went the "instantly create a contract" route! Who needs a lawyer when you already have a contract form that seems OK? You saved your company money that can now be put into the office Christmas party fund. You aren't even a lawyer, but you're a smart cookie - C Suite material for certain. So don't be afraid to shop for an expensive toy - like that  Tesla Model X with the handy bio-weapon defense mode . But don't sign that check to Tesla just yet. Instead, make sure that y...

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...

Does your company use RFPs ( R equests f or P roposal) in finding vendors for information technology products? RFPs are an essential part of the technology acquisition process. Some companies provide their RFP - and the vendor's response to it - to their attorney tasked to legally document the deal only  after the vendor is informally awarded the project. The company attorney may not even be a part of the RFP process.  This practice is unwise. T o be effective, your company's IT business team should work closely with your attorney to create a comprehensive RFP designed to obtain detailed information - not only about the prospective vendor's solution, but also about the vendor itself.    In my experience, every RFP should contain the following two questions for the vendor: 1.Have any of your customers or former customers terminated a contract before the engagement was completed? If yes, please explain and specify the contact names and phone numbers of these ...

This is a follow-up to my recent post about contractual "gotchas." Some lawyers think that they're being crafty (and doing their clients a favor) by  deliberately introducing ambiguous provisions in a contract.  Plain-language expert Ken Adams points to an example from a 2007 post here . And negotiation expert and author Victoria Pynchon points to another example  (involving the meaning of "sudden and accidental" from environmental liability insurance policies) from her Negotiation Law Blog . This gamesmanship strategy is not only ethically questionable but also likely to backfire on the supposedly crafty lawyer because ambiguity often cuts both ways - and courts often interpret ambiguous provisions in a contract against the parties who drafted them.   A lawyer negotiating a contract under a tight deadline may use that pressure as an excuse to leave a disputed provision open to interpretation to meet the deadline. This is risky business - it may lead to co...