Review: A Manual of Style for Contract Drafting

I haven’t written a book review in over 10 years, so I’ve probably lost touch with the conventions of the form. I’m not sure, for example, if it’s kosher to just say “This book is great, you need this book, go and buy this book.” Is there supposed to be some kind of prelude or set-up before making a recommendation? I can’t remember. So I’m just going to say it: lots of lawyers should go buy Ken Adams’ fourth edition of A Manual of Style for Contract Drafting. That’s the nutshell version of my review. This book is great. You need this book. Buy this book. (The image on the right has a link to the publisher’s site, where you can buy it.)

As an authority on legal writing, Adams is the contracts-specific version of Bryan Garner. If you’re a lawyer who drafts contracts, this book is obviously for you. (Did you see the title?) In fact, you probably already own a prior edition. I’m not familiar with the prior editions, so I can’t speak to what has been changed or added for version 4.0. But contracts continue to evolve and continue to be the subject of litigation—and Adams’ manual is well designed to help you improve the clarity and precision of your contracts, which is another way of saying it is well designed to help your contracts hold up in litigation—so, even if you already have an older edition, I can’t imagine why you wouldn’t want this, the latest, most up-to-date guide for improving the clarity and precision of your contracts. In short, if you’re a contract writer, you need this book.

But more importantly (from where I sit), litigators need it too. Seriously. I dug into this manual as someone who cares about good legal writing in general—but I also went through it with the eyes of a litigator. And I’m telling you: any litigator who handles litigation over contracts (or agreements, or covenants, or even rules, regulations, or statutes) ought to be interested in having this manual on her desk.

Chapter 1 has a brief discussion of “optimal” contract language. Chapter 3 discusses categories of contract language (e.g., “Language of Performance,” “Language of Obligation,” “Language of Discretion”). Chapter 4 discusses contract organization (e.g., sections, subsections, cross-references). Chapter 6 discusses the use of defined terms. And Chapters 7–15 discuss aspects or components of contracts that regularly become issues in litigation (e.g., the term “material adverse change,” references to time, syntactic ambiguity).

Each chapter is of interest not only to the contract drafter, but also to the contract litigator. For example, Chapter 8 discusses the common contractual requirement that a party use “reasonable efforts.” This discussion is helpful not only for the lawyer who must draft a contract to include this requirement, but also for the lawyer who must handle litigation over this requirement. First, the chapter is a good place to begin researching the law on this contractual term (see ¶¶ 8.36–8.64, discussing caselaw about the meaning and enforceability of “reasonable efforts” provisions). And even better: the chapter includes original research content (see ¶¶ 8.19–8.32, discussing the history of and difference between “reasonable efforts” and “best efforts”), which litigators might want to cite as authoritative, when making arguments about how a court should interpret these provisions—the same way we sometimes cite Scalia and Garner’s book on canons of textual interpretation.

Like I said, you need this book. And as an added bonus—for the true legal-writing nerds out there—the book even includes a chapter on contract typography (Chapter 16).

I don’t agree with everything that Adams says, when it comes to style recommendations. For example, Adams takes a hardline stance against using contractions in contracts. (See ¶ 17.36.) As I’ve made clear in the past, I don’t share this aversion to contractions, even in the most formal legal writing. And I also wish Adams had provided a more extensive discussion of the proper or best uses of punctuation (at ¶ 17.37)—perhaps with some examples of how punctuation has become the subject of litigation. But maybe that’s part of what he’s planning for version 5.0.

In the meantime, go buy version 4.0. It’s a must-have for your legal-writing reference desk. And I’ll race you to see who cites it first in a brief about contractual interpretation.

UPDATE: Adams points out (correctly) that I missed some of his discussions of punctuation in my perusal of this edition, because they pop up in other parts of the book instead of in the short section labeled “Punctuation.” Readers looking for tips or insights on punctuation should be sure to check the index for terms like punctuationcommacolon, etc.

Good Lawyer Apps

I haven’t written a blog post in a long time. Let’s blame it on my busy transition to a new law firm. Anyway, to get back on track I thought I’d write a quick post on the iPhone apps that I use most in my lawyerly activities. So, here they are, in no particular order:

Count – I love this little app for calculating deadlines. Super easy and cool, the way it works.

Dropbox – Most people are familiar with Dropbox. I love it. No better way to make my files easily accessible from anywhere, when I’m traveling or just working from home. Also makes it easy to post a link to a doc online (like a brief you just filed) or to send a doc to someone when you’re not at your computer.

Genius Scan – There are a lot of convert-to-PDF apps out there, and I have no idea whether this is the “best” one or not. But it’s the one I downloaded and learned how to use several years ago, so I’m used to it and I like it. Take photos of pages and the app will convert them to PDF for saving or sending. It’s come in handy so, so many times.

SignEasy – Ever need to sign a doc and send it back to someone? This app lets you do that without having to print first & scan after signing. Just open the doc in the app, affix your electronic signature, and send it back. You can also check boxes on forms, fill in dates, or use initials instead of full signature. It’s great.

Wunderlist – I love this app for making lists. Lists of books I need to read; articles I need to write; vinyl albums I want to buy; vinyl albums I already own; restaurants I like in the cities I travel to most frequently. Oh, and to-do lists. It’s good for that, too.

Twitter – Yes, Twitter. It’s where I get all my legal news (and regular news). It’s an alternative to email (using DMs). And for those of us who feel awkward at happy hour or at other in-person “networking” events, Twitter is a phenomenal networking (and marketing) tool. If you don’t already know about the #AppellateTwitter community, you’re way behind the curve. (See here, here, and here.) Get on the ball.

Bobby – I just discovered this app a couple weeks ago. It’s kind of awesome. You use it to track subscriptions, which for me means using it to track journal/magazine subscriptions as well as bar association and organization memberships. By “track,” I mean keep track of when it’s time to renew those memberships and subscriptions, so they don’t expire. This is especially helpful for those journals or organizations that never send reminders.

Patreon and the iPhone Podcasts app – I’m not devoted to the pre-installed podcast app, but I’ve never bothered to find an alternative. I don’t care that much about the app itself; the point here is that you need a podcast app of some kind. This is where I use this post about apps as a vehicle for telling you about the law-related podcasts you should listen to. I use Patreon (the app) to get the insider-only episodes of First Mondays, and I use the pre-installed Podcasts app to get everything else. And for me, “everything else” includes First Mondays, Slate’s Amicus, What Trump Can Teach Us About Con Law, Oyez’s Supreme Court Oral Arguments, Heightened Scrutiny, and Radiolab’s More Perfect. If you have recommendations for other law-related podcasts, I’d love to hear them.

VoiceRecorder – I don’t use it for work very often, but, when my oral argument prep includes recording myself, this is the app I use.

MiniKeePass – This is the password-management app I use. Nothing flashy. I’m sure there are others that are more user-friendly, etc., but this is the one I got used to several years ago.

Time (Intapp) – I haven’t actually used this app yet, but my new firm uses Intapp’s desktop program for entering time, so I’m planning to use the phone version as soon as I get around to setting it up on my phone…

There are lots of other useful apps for legal work, especially if we start talking about apps in which one might do actual legal work, like Goodreader or Google Docs. But my goal here was to list some of the apps that I find useful for doing all that tangential, work-related stuff that we do in addition to actual brief writing. Hope it was helpful!

Circuit Splits

CCsplits6There’s a split over the common-law right of access to pre-indictment warrant materials. See here at p.19.

There’s a split over whether the award of costs under FRCP 41(d) includes the award of attorneys’ fees. See here at p.4.

There’s a split over enhancing sentences for “otherwise extensive” criminal activity. See here at p.20-22.

There’s a post-Johnson split over whether the U.S. Parole Commission can reimpose special parole on a defendant. See here at p.5-6.

The courts disagree about whether claims arising under the ADA or the RA survive the death of a party. See here at p.2.

There’s a split over whether the ex parte questioning of a treating physician by an adverse party is permitted and, if so, how such interviews should be conducted. See here at p.3.

There’s a split over whether, under CFR § 778.114, the employer or the employee bears the burden of proving they did or didn’t agree to a fixed weekly wage for fluctuating hours. See here at p.7 n.22.

And the circuits “appear to be divided” over whether the Fourth Amendment protects against the subsequent theft of lawfully seized items. See here at p.11.

A (very) quick look at standing in data-breach cases

I got curious and pulled up a bunch of cases to look at when plaintiffs have Article III standing to sue based on a data breach that has exposed personal information. Note: this was not an exhaustive search, and this is not an extensive analysis. But here’s what I found.

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Waiver Problems (or Why You Should Hire an Appellate Lawyer)

I did a quick search. In 2016 (just one year, Jan. 1 through Dec. 31), in the Dallas Court of Appeals (just one of the appellate courts in Texas), in what Westlaw identifies as “commercial” cases (just one narrow area of the law), there were at least nine appeals in which waiver was a problem. To me, that seems like a lot—because “commercial” cases typically involve high-dollar claims and high-caliber lawyers on both sides. And if we broaden our scope a bit, there were another 149 “civil” cases that popped up in my search for “waiver”—and many of those likely involved actual waiver problems, too. These waiver problems demonstrate why litigants should consider hiring an appellate lawyer.

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Circuit Splits

path-18197_960_720There’s a split over whether IDEA fee shifting should have a long or short statute of limitations. See here at 5 n.2.

There’s a split over whether reckless offenses are predicate offenses under 18 U.S.C. § 924(e). See here at 14 n.10.

Apparently, circuits disagree about how to interpret “directly and independently of all other causes.” See here at 2.

There’s a split over “a narrow exception to Rooker-Feldman.” See here at p.5.

There’s a split over the immediate appealability of Parker immunity claims. See here at p.17 n.6.

Circuits disagree about whether a party that fails to challenge a special verdict in the district court can raise the issue on appeal. See here at p.17 n.3.

And there’s a split over what “new evidence” means under Schlup. See here at p.3 n.1.

ICYMI: Twitter Threads

Decided to post links to some of my Twitter threads, because most of these threads could (and maybe should) have been blog posts.

[listed in reverse chronological order]

On the Gorsuch nomination & whether the Democrats should filibuster: 3/20/17

Explaining the legal/policy issue of selling insurance “across state lines”: 3/7/17

A primer on class actions and why we have them: 2/16/17

On the case challenging the scope of Obergefell at SCOTX: 2/13/17

On federalism: 1/30/17

On work-life “balance”: 1/11/17

On appeals, standards of review, and reversal rates: 12/20/16

Some post-election thoughts about the Electoral College: 11/21/16

On judicial vacancies left unfilled: 11/18/16

On court-packing, reverse-court-packing, and constitutional norms: 10/26/16

The thread that launched the #AppellateTwitter coffee mugs: 10/22/16

On Flannery O’Connor & wanting to be an appellate lawyer: 9/14/16

Remembering where I was on 9/11: 9/11/16

On alternative-fee arrangements for appellate work: 9/6/16

On doing pro bono to get appellate experience: 8/23/16

The now-(in)famous thread on the social function of humor: 8/9/16

On RBG expressing political opinions: 7/13/16

On whether current SCOTUS can be called a “liberal” court: 6/28/16

And last but not least, the Twitter version of my life story: 10/23/16

Steed Style Guide, pt. 1

Complaints about The Bluebook have become commonplace. I have many. This, combined with the new availability of The Supreme Court’s Style Guide and The Solicitor General’s Style Guide—and with the longtime presence of Garner’s The Redbook, and with the presence, in Texas, of The Greenbook—has led me to become eclectic in my style choices, when it comes to brief writing. (I also have traces of MLA style still in me, from my days in academia.) Thus, over the years I haven’t been very consistent. I mean, I’m always consistent within a brief, to be sure—that’s imperative. But I haven’t been very consistent from brief to brief (or, more precisely, from case to case). Instead, I’ve been trying things out, here and there, to see how I like this or that.

Now, though, I think I’ve settled into some fairly consistent stylistic preferences that I’m going to go ahead and codify (here, on this blog) in my own personal style guide—with the caveat, of course, that I might change my mind at any moment.

So, without further ado, here is the first installment of the Steed Style Guide:

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Circuit Splits

There’s a split over whether plaintiffs must prove the absence of probable cause when bringing a First Amendment retaliatory-arrest claim. See here at p.19. (Incidentally, this case is a good example of how messed up the law is, on qualified immunity. The question in this case is whether a person has a right against retaliatory arrest even when there is probable cause for the arrest. But the court grants immunity, saying it doesn’t need to determine whether the right exists because the Supreme Court has previously recognized that the right has not been clearly established. In this way, under our current qualified-immunity jurisprudence, when a right isn’t clearly established the courts can just continue to grant immunity on that basis, without ever deciding whether the right exists. Happens all the time. I’ve written more here.)

There’s a split over whether a mandatory supervised-release term may be modified or terminated under section 3583(e). See here at p.4.

There’s a split over whether participants or beneficiaries of an ERISA plan must exhaust internal plan remedies before suing plan fiduciaries on the basis of alleged violations of statutory duties. See here at p.14.

There’s a split over whether the denial of a “Hail Mary” chance at trial constitutes prejudice (in the context of possibly rejecting a plea agreement). See here at p.9 & n.3.

There’s a split over whether burglary requires intent-at-entry or just “the development of intent at any point.” See here at p.5.

Courts are divided over whether the joint-employer or single-integrated-enterprise theory of liability under the FLSA also applies to the personal-jurisdiction inquiry. See here at pp.5-6.

There’s disagreement over the interaction between sections 2680(a) and 2680(h) in the context of determining sovereign immunity. See here at p.15 n.5.

And there’s a split over whether the failure to object to the reasonableness of a sentence upon its imposition requires plain-error review. See here at p.6 n.10.


cxaav8wviaagbjq-1Our band of merry travelers, known affectionately as #AppellateTwitter, has been in the news recently. In case you missed it, first there was some coverage of our crew at Above the Law. Then U.S. Law Week did a story on us, which was cross-posted at Bloomberg BNA. Then Today’s General Counsel did its own little blurb referring to the Law Week article. Then ran a story about us.

And to cap it all off, Judge Dillard (@JudgeDillard) actually cited #AppellateTwitter in a footnote to one of his judicial opinions.

Big League!