This is the year 2010, and I encourage lawyers to get out of the habit of using static, outdated words and phrases in their writing. There are so many articles and books about “Plain English” which recite all these subjective guideposts for effective legal writing. I can break them all down into one general rule, which is: If you wouldn’t Say It, don’t Write It.

Hypothetically, if a lawyer is asked by her client, “where is my settlement check?,” I doubt the lawyer would respond by saying, “it is enclosed herewith.” Similarly, if the client asks her lawyer, “what’s going on with my case,” the lawyer probably wouldn’t begin the response with the phrase, “Please be advised…” So, why do we use these words and phrases in our legal writing?

In spite of all the suggestions for great legal writing, too many archaic words and phrases are still in use today. Instead of all the articles about how to revise legal writing, maybe the question should be, why are lawyers so wedded to legalese and why won’t they change. Is it for Formality; Exclusivity; or because of Precedent? Once we answer that question, hopefully we can begin to move away from the herewiths and heretofores and arguendos.

Tags: legal writing, legalese, plain english

It is becoming very common for contracts to contain a clause stating that “Any and all disputes arising under this contract will be settled by arbitration.” Arbitration is simply an agreement between parties that their disputes will be settled through arbitration rather than in court. Arbitration is favored by federal and state courts as a form of “Alternative Dispute Resolution” (ADR) and is one of the fastest growing means of settling disputes. The dispute is submitted to a private, non-judicial person who often has practical knowledge of the matter in dispute.

Arbitration has many similarities to a court case, but there are also some significant differences. Read on…

Tags: ADR, alternative dispute resolution, arbitration, dispute

You can find just about anything on the Internet, from a meatloaf recipe to a Yorkshire Terrier. The Internet can be a valuable tool or a source of entertainment, but it is a risky place to find a commercial lease form. “One Size Fits All” Lease forms may contain seemingly appropriate legalese like “subrogation” and “condition precedent,” but if you don’t know what those terms mean, you shouldn’t use them.

Generally, commercial leases are Read on…

Tags: acceleration clause, breach of lease, commercial lease, liability insurance, liquidated damages clause