Due to nobody’s request, whatsoever, I opened a Twitter account. If you wish to receive somewhat infrequent updates on contract drafting, wine, esoterica and ND football (not necessarily in that order!), and anything else that strikes me as worthwhile to twit about (or is it tweet?), send an email to me: ChadB1216@gmail.com.
And let me know that you’re not following me for commercial gain. So far, I’ve only let my esoterica podcast pal, Tim Binnall, follow me, perhaps you will be number 2!
Although at times football weather, Summer is here, and that means a temporary abandonment of the heavier reds and stronger whites for lighter fare. Here’s a list of our favorites this Summer; as usual, all of these are moderately priced (under $20, because last I checked, the TARP money hadn’t yet been deposited) and all are dry:
Whites: Forget Chard, Pinot Gris, and Sauvignon Blanc, we’ve been enjoying a Vermentino from Sardinia, the 2007 Argiolas Costamolino.
Reds: The winner this Summer is Cosantino Winery’s The Med (2005), a blend of Mediterranean grape varietals
This wine is not a heavy red. It pairs well with any pasta in a red sauce or pizza. The notes are cherries, tamarind, and ripe tannins. The wine is barrel-aged for 7 months, but the oak taste is subtle.
In second place, I would put an inexpensive yet well done French Bordeaux from the Medoc appellation: the 2005 Chateau La Lauzette
This is a cab-based blend that can be drunk young or ensconced on your wine rack to drink several years from now. It has only a hint of the French barnyard notes that drive us crazy if overdone.
Coffee! A beverage that you can enjoy at 7 AM on a Saturday in July. As I write this, I’m finishing up a cup of Summer Solstice Blend from Intelligentsia. This is direct trade coffee from our favorite coffee purveyor (take that Starbucks!) As the vendor says, this coffee with its butterscotch notes is reminiscent of a great Chardonnay.
So, what are you drinking this Summer and why? Let me know.
My goal is to update this Blog more often, but with several colleagues on vacation, guess who fills in?
Thanks for blogging with me thus far!
As a kid, I was much impressed by how Detective Joe Friday (Jack Webb) in Dragnet could calm even the most hysterical of female witnesses to heinous criminal acts with his deadpan, “Just the facts, ma’am.” I resolved that I too would use this phrase to calm down my mother when she stridently decided that Summer mornings were better spent doing household chores (or even worse, practicing the piano) than watching the 9AM “Early Show” on Channel 8 with such classics as A Night at the Opera, Twelve O’Clock High, and Stagecoach…
Let’s just say that this phrase worked better out of the mouth of Joe Friday than 9-year old Chaddie Busk.
But I digress. As a contracts lawyer, we now ponder the weighty question in the AdamsDrafting Blog of whether, in a contractual notice provision, the drafter should use “telecopier,” “fax,” or “facsimile” to describe “legal” notices sent by this device. After some discussion, Ken Adams (a contracts scholar par excellence), concludes that the term “fax” is now perfectly appropriate even in formal contexts.
Unfortunately, lawyers never agree on anything, which is why, with few exceptions, I try to avoid their company. (I occasionally get a brochure to take a cruise with my fellow lawyers, and they immediately go into the trash. Can you imagine being on a cruise ship with all lawyers, hitting an iceberg and then deciding who gets to go in the lifeboat as opposed to treading water? Yikes!) So, I felt compelled to post the following comment on Ken’s Blog:
I have an easy solution to this problem: leave out notice via fax, facsimile, or telecopier entirely. My company has only a few fax machines on each floor of its headquarters, and it is not unheard of that an important letter sent via fax has languished in a fax machine because no one bothered to check the machine, or the letter was picked up by mistake by the wrong addressee. In my opinion, the best way to assure effective contractual notices is either by overnight courier or US certified mail, return receipt requested.
Then there is the matter of email notices. I allow for email notices as valid if and when acknowledged by the recipient and sent to a generic email address (e.g., legal-notices@ yourcompany.com) which comes to me (in the Legal Department) or another attorney when I am unavailable.
Finally, as other commentators point out, the era of the fax machine is coming to a close, so the tried and true notice provision allowing for faxed, facsimile, or telecopied notices requires updating.
To which Ken kindly responded:
Chad: I acknowledge in my post that fax is unlikely to be with us much longer. And your comment reminds me that I should tackle the question of email notices. Ken
Thanks for blogging with me thus far.
After my last post lamented that Le Cigare Volant 2003 the “UFO Wine” could not be found in West Michigan, I happened to find it at a local wine merchant after all and picked up a bottle for around US $30. Normally, this price point for wine is high for me, but since I had a coupon for 20% off (in exchange for my email address, I guess everyone has his price!), I picked up a bottle and with some excellent homemade lasagna and fig salad, uncorked unscrewed the cap with much anticipation. But rather than be abducted by a sublime mixture of ripe fruits, dark chocolate and a hint of tobacco, my palate was greeted instead with a fairly ordinary red wine blend. Blah. Those little gray aliens were smart not to land in the California vineyard producing that wine; the buggers appear to have discriminating taste buds after all, apart from the cattle mutilations, of course.
However, unless corked (ha, no chance of that with a screw top), each bottle of wine can be appreciated to some extent. As Maya remarked in Sideways (and this is one of the best wine quotes ever):
I like to think about what was going on the year the grapes were growing; how the sun was shining; if it rained. I like to think about all the people who tended and picked the grapes. And if it's an old wine, how many of them must be dead by now. I like how wine continues to evolve, like if I opened a bottle of wine today it would taste different than if I'd opened it on any other day, because a bottle of wine is actually alive. And it's constantly evolving and gaining complexity. That is, until it peaks, like your '61. And then it begins its steady, inevitable decline.
So, even though the “UFO wine” was not out of this world, it was still well, wine for God’s sake, and something to be savored with good food, family and friends.
Thanks for blogging with me thus far.
Picture yourself in a vineyard nearly the sleepy town of Chateauneuf-du-Pape in France’s Rhone region. It is a hot, cloudless day in September, 1954. Ostensibly, nothing is going on to disturb the dignity and repose of the ripening grapes. Suddenly, you see a cloud forming on the horizon, and it is growing much too quickly as it heads straight for the vineyard. Hovering over the winemaker’s chateau, what can only be described as a UFO emerges from the cloud and proceeds to send a destructive death ray on the helpless vines below. Mon Dieu! Shall we call out the Gendarmerie! No, they will likely be ineffectual against this otherworldly assault on the lifeblood of France. Here’s an idea, LET’S PASS A LAW FORBIDDING UFOS FROM LANDING IN THE VINEYARD! Which is exactly what the City Council of Chateauneuf-du Pape did in 1954 to keep those pesky aliens from molesting the grapes from their cigar-like spaceships! And as a result, alien spacecraft have avoided those vineyards ever since, and we can all rest easier knowing that those fantastic Rhone wines will forever be in good supply for imbibing by carbon-based life forms.
Like any lover of wine and science fiction, I’ve spent countless hours wondering what wine would pair well with UFO watching. Finally, the above vintage from Bonny Doon Vineyard should serve nicely and is California winemaker Randall Grahm’s (a/k/a The Rhone Ranger) tribute to the wines from that region. It is a blend of Grenache, Syrah, and Mourvedre and of course (just my luck) it can’t be found in Western Michigan. Should pair perfectly with roast beast, wild game, or a night spent scanning the Lake Michigan horizon for cigar-shaped spacecraft. If only I could find a bottle, I’m certain that I would see numerous alien spacecraft cavorting about after 4 0r 5 glasses!
Thanks for blogging with me thus far, and Cheers!
The premise for this post is that Nondisclosure Agreements ("NDAs") are overprescribed and overlawyered. Just as doctors have overprescribed antibiotics, resulting in a degraded efficacy to cure disease, lawyers have prepared too many generic NDAs, resulting in a reduced ability to protect specific and legitimate confidential information of their clients.
Observations in support:
By my math (lucky this isn't algebra!), that leaves the typical NDA like a half-swing at the plate. Can a half swing hit a home run? Hardly, more likely a lucky single to first base.
If, as a business person, you really need an NDA to pursue a relationship with a new vendor or customer, consider telling your lawyer to first, make the NDA concentrate on specific information to safeguard and be limited in duration; second, eliminate the more general exceptions to the non-disclosure obligation; and third, spell out how damages will be calculated in the event of the recipient’s breach. You don't need a large dose of NDA antibiotics when a legal aspirin in the form of a focused NDA will suffice.
Taking these steps will increase the value of NDAs to your organization, and the recipients of your confidential business information will better understand their nondisclosure obligations.
Thanks for blogging with me thus far!
(or: How NOT to do Business with My Client in 2009)
This post is long overdue. For too many years, I have slogged through contracts that vendors wishing to do business with my client have offered up as the “form agreements that everyone signs.” Excuse me, but that is not the case with this lawyer or his client. So, with all due respect to my client's vendors or prospective vendors of non-resale goods, services or intellectual property who may be reading this, here is my list of the
**TOP 7 CRAZY CONTRACTUAL TRICKS**
that won’t impress me or my client:
1. Presentation of your contract with the cover message that “No one ever changes this Agreement.”
CCB: Ha, no contract is written in stone except for the Ten Commandments, so unless your contract was drafted by Yahveh, I can darn well mark it up! If you won’t give me your form agreement as an unprotected MS Word document, I will just revise it on its face and PDF the doc back to you. And it will be a lot harder for you to understand my changes or discuss them with me than if I had sent you a pretty redlined version!
2. Your contract is written in a font less than 11 point, or in 2 columns.
CCB: Repeat after me 20 times, “A contract is not a newspaper.” Then another 20 times, “A contract should be easily read so that it may be readily understood.” Easy reading does not consist of text in any font under 11 point. If you think that using a small font will dissuade me (or any other transactional lawyer worth his or her salt) from reading or marking-up your contract, think again.
3. Your contract is not paginated.
CCB: It’s scary how many vendors are apparently unaware of MS Word’s automatic page number insertion feature.
4. Your contract contains typographical or grammatical errors.
CCB: I don’t go out of my way to look for these types of errors, but I will correct them if I find them because they are unprofessional and further, if our contract is someday litigated or arbitrated, it is not in the best interest of either side’s lawyer to have such errors that inevitably detract from the text of the doc.
5. Your contract contains Goofy provisions.
CCB: No, my client will not agree to sue you only in the City and State of your headquarters unless we also have a business presence in that City and State. No, my client will not agree that your indemnity to us is triggered only by your gross negligence or willful misconduct. No, my client will not agree that your personnel can perform services on our premises without a certificate of commercial general liability insurance that names us as an additional insured. No, my client will not agree to waive personal service of judicial process. No, my client will not agree to pay you interest on overdue amounts that are disputed in good faith. And so forth…
6. Your contract contains an unrealistic sunset date.
CCB: Although the end of your fiscal year or a particular calendar year quarter is usually a reasonable sunset date for the business terms of a contract, you should not set an arbitrary deadline to ink the deal. This is a common ploy used by shady used car dealers, and I’m sure that you don’t want my client to include you in that bunch.
7. You won’t accept a faxed or imaged signature as an “original.”
CCB: It’s 2009, and because the legal profession (along with the Federal Rules of Evidence and the comparable rules of most States along with various E-sign laws) have finally recognized the digital age, it is stupid to ask for a document containing original ink signatures when a legible PDF copy of a contract with imaged signatures has the same effect as an “original.”If you want a hard copy to stick in a file somewhere (that is so 20th Century!), just print out the PDF version.
So, my dear vendors, here you go. Your contractual life in dealing with me and my client in 2009 has just been made easier.
And thanks for blogging with me thus far!
Couldn’t I take ‘em all at once, and have it over, Jacob?
So Ebenezer Scrooge entreats the ghost of Jacob Marley when old Scrooge hears the news that he will be haunted by 3 ghosts in the course of the evening. Although the plea fell upon deaf ears, the triple haunting resulted in Scrooge’s redemption.
Do ghosts haunt you at Christmas? They certainly do me. Because all of my "upstream" blood relatives have passed on, I tend to get re-acquainted with their ghosts around Christmas time each year, when I see and hear them celebrating Christmases long gone in snippets of videos stored somewhere in my gray matter. And of course I am there in those videos as well, wearing a younger man’s clothes.
In a sense, Christmas is the greatest ghost story, for it speaks to the Word becoming flesh and dwelling among us physically for a time, the Ultimate Reverse Haunting, God the Father through the Holy Ghost becoming a physical person with the objective of saving us all. Certainly, it is to humanity’s credit combined with divine grace that He chose to become a human being when He easily could have become something else - or taken His business elsewhere.
After Christmas, the frequency of my hauntings will decline. The videos of the departed Busks will go back into the appropriate mental compartment, and I will focus on enduring a Western Michigan January, February and March. But as Carly Simon sings, There’s always someone haunting someone…and you know who I am, though I never leave my name or number, I’m stuck inside of you…
My Christmas wish for you is simple. Be receptive to your hauntings; let them be a positive force in your life. The shades of the past can often help us live in the present. And if you meet any really interesting spirits, please send them my way, I have questions!
Thanks for blogging with me thus far, and Happy Xmas.
