The BUSKLAW Newsletter

A non-disparagement clause in a commercial contract discourages one party from saying bad things (whether or not true) about the other party. The clause is  common in litigation settlement agreements and employee termination agreements. In the latter, the purpose of a non-disparagement clause is to prevent the former employee from criticizing their former employer after the discontinuation of employment. In a litigation settlement agreement, this clause is included so that new customers (or vendors) won't be discouraged from doing business with the settling parties.  As a general rule, a non-disparagement provision in a non-consumer contract is valid and enforceable. But damages resulting from their breach may be difficult to prove, because what is your reputation worth before compared to after the provision has been breached? You would likely be forced to hire expert witnesses to testify about reputational damage substantiated by customer or social media surveys; in...

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...

“I’m a lawyer. I solve problems you never knew existed with words you don’t understand.” On the internet, you can buy a t-shirt bearing this indictment against lawyers. But is this allegation credible enough to be displayed to the public - or is it cringeworthy? Let’s pull it apart and see where we end up! This is a true story. In the 1980s and 90s, a local real estate agent (call him Steve), owned a series of family restaurants in the small cities surrounding Grand Rapids, Michigan. Each restaurant had a PA system that re-broadcast local radio stations to Steve’s customers. One day, an ASCAP representative visited one of Steve’s restaurants, heard the radio station on the PA, and asked the manager if the establishment had a license to re-broadcast the music. The manager referred the ASCAP representative to Steve, who promptly told the representative to “pound sand.” Steve used his common sense to conclude that if he could listen to radio stations in his car or at home witho...

(Author’s Note: I originally wrote this post for Y2K, but I’ve updated it using plain English.  Happy April Fool’s Day 2016!)             A standard force majeure contract clause, where "Acts of God" excuse one party from performing their obligations without that non-performance being a breach of contract, are so 20th Century. So what if fire, flood, hurricane, snowstorm, or riot excuse contractual non-performance. Those events are too mundane to contemplate! Contract lawyers desperately need a force majeure clause for the clear and present dangers of the new(er) millennium! So, as a public service to the legal profession, I’ve assumed the heavy burden of drafting a "new age" force majeure clause for my colleagues to freely use: Either party's non-performance of this agreement will be excused to the extent that it is caused by the occurrence of any of the following events or circumstances: (i) Alien abduction, alien i...

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!!)

As a kid, I was impressed by how Detective Joe Friday (Jack Webb) in the television show  Dragnet could calm even the most upset witness to a heinous criminal act with his deadpan, “Just the facts, ma’am.”  I resolved that I too would use the same tone of voice to calm my mother when she stridently decided that summer mornings were better spent doing household chores (or confronting the piano) than watching the daily 9 AM “Early Show” on Channel 8 with such classic films as A Night at the Opera , Twelve O’Clock High , and Stagecoach .  Did this strategy work? Let’s just say that Joe Friday's detached tone of voice worked a lot better for Joe Friday than 9-year-old Chaddie Busk trying to convince his mother (a formidable lady who has since leveled up) that the Early Show was indeed worth watching and that the chores - and practicing the dreaded piano - could wait. But I digress. As a contracts lawyer, we now ponder the weighty question in the AdamsDrafting Blog of w...