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[EDITED] In a scene from the classic movie Cool Hand Luke, Paul Newman takes the pot in a poker game after the last other player drops out.  Bystander George Ken­nedy reaches in and turns over New­man’s cards to reveal … nothing.  Ken­nedy mocks the other player, saying “he beat you with nothin’!”  Newman smiles and says, “Yeah, well, sometimes nothin’ can be a real cool hand.”

Contract professionals might riff off of that line:  Sometimes boring can be real cool. Many such folks would disagree with legal-writing expert Bryan Garner when he as­serts categorically (in a fine article) that the end of a sentence is sup­posedly its most im­por­tant part be­cause the end of the sentence packs the most punch. See Bryan A. Garner, How to start a sentence: Con­sid­er all your altern­a­tives, and sprinkle in some con­junc­tions, too (ABAJournal.com).

In a contract, it’s less important for the writing to pack a punch than it is for each sentence to make its point quick­ly, precisely, and under­stan­d­ably, so as to help speed up legal review and get the contract to signature soon­er.  And that will usually call for the kind of boring, just-the-facts-ma’am style — Alice will do X, Bob may do Y — that Garner urges writers to avoid.  [EDIT: See the end of this post for a Twitter discussion between Garner and me.]

Now to be sure, someone drafting a legal brief wants the brief to catch and hold the judge’s at­ten­tion. And in that setting, Garner is certainly right when he says that it can be bor­ing for the writer to just keep chugging along with plain old subject-verb-object sentences:

As professional rhetoricians, readers of this column should know what the most important part of a sentence is: the end. Many writers mistakenly think it’s the beginning: They begin a disproportionate number of sent­en­ces with the grammatical subject, and they rarely depart from the subject-verb-object pattern.

Boring legal writers create paragraphs of sentence after sentence begin­ning with a client’s or litigant’s name; interesting writers, by contrast, spice their prose with syntactic variety.

… A sentence might begin with an adverbial of time: “Last April, John died.” Or maybe it would include an adverbial of place: “While visiting Columbus last week, John died.”

Notice how the poignancy is lost if we were to write: “John died last April” or “John died while visiting Columbus last week.”

(Emphasis and extra paragraphing added).

But drafting a contract is not quite the same as drafting a brief for litigation, nor is reading a contract the same as reading a legal brief. When a contract reviewer looks at a draft agreement, she knows that her client gen­er­al­ly has just two ques­tions:

  1. Can I safely sign this now? 
  2. (If the answer is no:) How quickly can you make it signable? 

Many contract reviewers would say that they can better answer these client ques­tions when the con­tract uses simple, even boring, language, with short para­graphs and sentences.  (And when you draft a contract, the client gen­er­al­ly wants to pay only for “good enough” language that can be signed quickly, not for elegant literary prose.)

As always, writers must keep in mind who their readers are and what those readers will be trying to accomplish. When trying to get a workable contract to signature sooner, “bor-ing!” will normally be the way to go.

EDIT: Garner tweeted that “The principle of end weight—putting emphatic words at the ends of sentences to avoid syntactic fizzle—applies almost as strongly to contractual drafting as in other expository prose. @DCToedt, you give no contrary examples.”  He attached a photo of “Not this” and “But this” examples:

I tweeted in response: “In each of your examples, your typical overworked contract reviewer is reading as rapidly as possible and so (I claim) would prefer your ‘Not this’ example because it gets to the point immediately.”  Followed by:  “As the military briefing acronym goes: BLUF – Bottom Line Up Front.”

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Summary:  When drafting an arbitration carve-out to allow claims for injunctive relief to go to court instead of to arbitration, it might be a bad idea to exclude the entire action in which injunctive relief is sought.

A party brought a Sherman Act antitrust lawsuit, seeking both damages and injunctive relief. The defendant moved to compel arbitration because of the following provision in an allegedly-applicable agreement:

… Any dispute arising under or related to this Agreement (except for [i] actions seeking injunctive relief and [ii] disputes related to [intellectual property]), shall be resolved by binding arbitration in accordance with the arbitration rules of the American Arbitration Association ….

Archer and White Sales, Inc., v. Henry Schein, Inc., No. 16-41674, slip op. at 2 (5th Cir. Dec. 21, 2017) (emphasis and bracketed romanettes added).

The Fifth Circuit affirmed the district court’s refusal to compel arbitration, while acknowledging that the incorporated AAA rules clearly delegated the ques­tion of arbitrability to the arbitrator.  Because of the express carve-out of actions seeking injunctive relief, the court said, “the argument that the claim at hand is within the scope of the arbitration agreement is wholly ground­less” and therefore “the district court may decide the gateway issue of arbitrability despite a valid delegation clause.”  Id. at 4 (cleaned up; emphasis added).

… The arbitration clause creates a carve-out for “actions seeking injunctive relief.” It does not limit the exclusion to actions seeking only injunctive relief, nor actions for injunction in aid of an arbitrator’s award. Nor does it limit itself to only claims for injunctive relief. Such readings find no footing within the four corners of the contract. …

We see no plausible argument that the arbitration clause applies here to an action seeking injunctive relief. The mere fact that the arbitration clause allows Archer to avoid arbitration by adding a claim for injunctive relief does not change the clause’s plain meaning.

While ambiguities in the language of the agreement should be resolved in favor of arbitration, we do not override the clear intent of the parties, or reach a result inconsistent with the plain text of the contract, simply because the policy favoring arbitration is implicated.

Id. at 12-13 (cleaned up; emphasis in original, extra paragraphing added).

The court elected not to address a seemingly-simpler argument, seemingly in the interest of reiterating and fleshing out the court’s wholly-groundless doctrine, which apparently ori­gi­nated in Douglas v. Regions Bank, 757 F.3d 460, 464 (5th Cir. 2014):

There is a strong argument that the Dealer Agreement’s invocation of the AAA Rules does not apply to cases that fall within the carve-out. It is not the case that any mention in the parties’ contract of the AAA Rules trumps all other contract language. Here, the interaction between the AAA Rules and the carve-out is at best ambiguous.

On one reading, the Rules apply to “[a]ny dispute arising under or related to [the] Agreement.” On another, the provision expressly exempts certain disputes and the Rules apply only to the remaining disputes.

We need not decide which reading to adopt here because Douglas pro­vides us with another avenue to resolve this issue: the “wholly groundless” inquiry.

Archer and White,slip op. at 8 (extra paragraphing added).

(One wonders whether the wholly-groundless test is being put out there by the Fifth Circuit as a way of protecting judicial turf.)


An Eighth Circuit decision of yesterday reminds us of a harsh reality of busi­ness:  Absent an enforceable non-competition covenant, one of your suppliers might decide to cut out the mid­dle­man, i.e., you, and begin selling directly to your customers.

That’s what happened to a vendor of specialty envelopes:  The vendor’s sup­plier, a manufacturer of envelopes, terminated its relationship with the vendor and began selling directly to the vendor’s customers — and successfully poached two of the manufacturer’s large customers. See Tension Envelope Corp. v. JBM Envelope Co., No. 14-567 (W.D. Mo. Mar. 3, 2015), affirmed, No. 16-3728 (8th Cir. Dec. 8, 2017).

The vendor that lost its customers to its manufacturer seems to have been the trusting sort:  The manufacturer: (i) had been founded by one of the vendor’s own former employees; and (ii) had leased two specialty machines from the vendor. Worse, the vendor seems never to have entered into any kind of written contract with the manufacturer.

Anyway: The vendor sued its former manufacturer for poaching its customers, but to no avail — in part because the vendor had never insisted that its former manufacturer sign a contract with an enforceable non-compete provision.


Email styles: An interesting Hacker News discussion

This Hacker News discussion provides lots of in-the-trenches wisdom about how to write more-effective emails.  (Hacker News is probably the premier discussion site for techies.)

Here are some of the more-interesting takeaways, interspersed with some of my own practices:

1. BLUF: Bottom Line Up Front (from the military) — this might include saying in the first paragraph, e.g., “JANE, please see the request in #5 below.”

2. Short paragraphs.

3. Numbered paragraphs for longer emails, so as to signal changes of topic.

But keep the paragraphs short — use unnumbered continuation paragraphs if necessary.

4. REQUEST: For key paragraphs, use the first word in all-caps as a signal, e.g., RECOMMENDATION; REQUEST (as in this paragraph).

5. All-caps the names of people who should pay particular attention, e.g., JANE in #1 above.  (Or, use @Jane.)

6. Be careful about wording, so as not to appear curt or harsh.


Street view of Taco del Sol from Google MapsIn the news:

  • The landlord of a commercial property in Bozeman, Montana received complaints about the noise and aromas emanating from a Taco del Sol restaurant operated by a tenant.
  • The landlord, purporting to act under its contractual right to make rea­son­able rules, asked the restaurant to stop playing music; to install felt on its chair legs; and to install a new ventilation system.
  • The restaurant installed felt on the chair legs but declined to stop playing music. The restaurant also bought equipment to reroute its existing ventilation system, but the landlord prevented its installation.
  • The landlord sent the restaurant a notice of breach and of the landlord’s intent to terminate the lease if the tenant did not take all the measures demanded by the landlord within 30 days.
  • Shortly after the 30-day cure period expired, the restaurant sued the landlord for a de­clar­a­tory judgment (1) that its conduct was not a breach, and (2) that the land­lord had anticipatorily breached the lease agreement by sending the notice of default. (The tenant also moved out, possibly to this location.)

The trial court held in favor of the restaurant and awarded damages. This week, the state supreme court affirmed. See Bridger del Sol, Inc. v. VincentView, LLC, 2017 MT 293 (Nov. 28, 2017).

For another “own goal” tale in the same vein, see the Common Draft annotation on termination.


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