Guess the law firm

I am currently reading a c.100 page contract where the first 25 pages are definitions.

Guess which law firm is identified on the front page as responsible for the drafting.

Clifford Chance? Or one of the other Magic Circle firms…

Slaughter & May

 

read the definitions, Heffalump, read them and understand them

Clue is that the definitions are at the front of the contract.  Rules out A&O who tend to whack them into a schedule at the back. 

I fooking hate contracts where all the important bits are in the definitions

they make my brain hurt

Definitions should be at the front or at the back. But some firms put them in schedule 1 (ie in the middle if you have a bunch of schedules) which is really annoying.

It all depends how often an identical term or concept is going to be used, surely ? The more often it is to be used, the more efficient it is to make it a defined term.

My number one drafting principle was that a document should have no unnecessary duplication. It's shocking how bloated many documents are.

So no problem with 25% of a document being definitions. But does the whole thing really need to be 100 pages... ?

the definitions are the definitions, "unless the context otherwise requires".

Back in the days when I actually regularly drafted stuff myself I used to do loads of drafting through the definitions. Occasionally some old fogey would moan that you shouldn't put operative provisions in the definitions. I used to largely ignore them.  Now that I spend my life reading/marking up contracts other people have drafted I have to say I agree with them (and Heff) it is fvcking annoying. 

Bugbears:

  • defined terms in the main text not picked up in the definitions section.
  • operative terms in the definitions.

definitions like:

"Relevant Event" has the meaning given to such term in schedule 15. 

 

Go fook yourself.

If you can’t stand the bantz, stay out of the kit-chin.

i like misleading definitions, eg

candy shop” means a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of bbb- or higher by standard & poors rating services or a comparable rating from an internationally recognised credit rating agency

Ref the "Candy Shop" I have had real problems explaining this to clients. They would say but it is a bank not a Candy Shop.

yes. the important thing is that u also change utilisation (or equivalent) to “lick” and facility (or equivalent) to “lollipop”

then it makes total sense

i like misleading definitions

I always kind of wanted to define everything in an agreement as a fruit.

"The Apple will buy the Pear from the Orange for a price equal to the Grape.  Pear will be sold including all Strawberries and Bananas save for the Raspberries and Nectarines which shall be excluded."

operative terms in the definitions? that’s nuts - it’s a DEFINITION not an operative provision. one only sees such nonsense from Clowns LLP (new name for the merged firms of Joke Shop and Noidea)

exactly arbiter

and then someone gets confused because nectarines and raspberries r neither strawberries nor bananas

I load up the definitions as it: (1) tends to make the operative terms easier to read; and (2) can be strategically beneficial as the overworked lawyer on the other side often gets bored of reading the definitions in detail and miss key points that are drafted in my favour.  

The kind of shit even the very top firms have missed in documents (even by the time it gets to the executed version) is startling.  

Has it ever actually resulted in a ‘bazinga’ for

your clients tho?

Not sure what a 'bazinga' is.  If you mean some kind of 'big gain' or 'big win'.... I suspect not in most circumstances.  Most deals never get substantively litigated - but clients spend all that extra $$$ on good vs average lawyers in case of the rare "what if" moment (as well as for other reasons).  The higher the value of the deal, the more costly that 'what if' moment might be if you have an unfavourably drafted provision.

I would say the impact is generally more cumulative, rather than any individual item being too significant.  Each change in of itself may give rise to a marginal benefit, but cumulatively it can often result in a rather beneficial/favourable risk allocation profile.  The benefits can manifest in a number of unseen ways (i.e. as in-house lawyers look at making a claim down the line, then realise the contract isn't favourable on the particular point and drop it) or seen ways (when a claim may need to be made, the favourably drafted provisions provided additional leverage in achieving a favourable settlement).