7 phrases to delete from your contracts right now

7 phrases to delete from your contracts right now

In a contract dispute, the courts must give every word in a provision meaning. (See Lowe v. SEC (1985); Reiter v. Sonotone Corp (1979), FDIC v. Singh (1992), and myriad others.) Including unnecessary words in your contracts out of habit or to lend gravitas at best only confuses the reader; at worst it opens the door to unanticipated interpretations.

Are you using the following phrases in your contracts? If so, I urge you to consider why: Is it inertia, or have you thoughtfully considered their meaning?

How to use "neither/nor"

How to use "neither/nor"

My clients frequently ask me whether they're using "nor" correctly. The most common answer is that one should use neither with nor and either with or
  Neither the Company nor any of its Subsidiaries has received notice of any pending investigation.
  Either the Buyer or the Company may terminate this agreement at any time. 

However, there is a bit more you need to watch out for with neither/nor

Common mistakes spellcheck won't catch

Common mistakes spellcheck won't catch

Spellcheck has changed the way we all proofread our writing. While even editors love spellcheck (whether they admit it or not), it has made all of us a bit less diligent as we rely on those squiggly red underlines to let us know when we've transposed letters or made use of "creative" spelling. 

Below are some of the most common errors I see that spellcheck won't catch. While some require no explanation, I've offered some hints for understanding the trickier of them.

Should you use "including but not limited to"?

Should you use "including but not limited to"?

The phrase "including but not limited to" (and its cousins, "including without limitation" and the horribly burdensome "including but not by way of limitation") frequently sparks debate amongst authorities on legal writing.

At best this phrase is redundant. Including means, by definition, that words that follow are part of, but not all of, a set. At worst, this phrase can add another layer of unintended interpretation. Frustratingly, case law doesn't always uphold “but not limited to” as illustrative and not restrictive.

What is a serial comma, and when to use it: Strippers, JFK, and Stalin

What is a serial comma, and when to use it: Strippers, JFK, and Stalin

What is a serial comma?

First off, what is a serial comma (aka the Oxford comma)? It's the comma that comes after the last item in a series, before the and, as in: I like gladiolus, surfing, and sushi.

Why is the serial comma important in legal writing? 

In the above sentence only the daftest of individuals would likely be confused if you left out the serial comma; however, there are cases where, without the serial comma, ambiguity rears its ugly head.