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I broke the link for yesterday’s post

A friend pointed out that the email announcement about yesterday’s post (which was about the use of em-dashes and par­en­the­ses in contracts) in­clu­ded a busted link to the post. I tracked down the cause, which was that I’d added invisible hyphens to the title of the post for a nicer-looking right margin.  The WordPress editor automatically included those invisible hyphens in the URL for the post, which broke the link that went out in the email an­nounce­ment.  I apologize for any inconvenience to readers.

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Ken Adams says he doesn’t use em-dashes in contracts (or parentheticals either).  Ken cites Bryan Garner for the proposition that em-dashes can sub­sti­tute for parentheticals and colons, but he says he doesn’t use parentheti­cals in contracts, and he prefers to be consistent in using just colons.

In contrast: I use both em-dashes and par­en­thet­i­cals in contracts — albeit judiciously — when they serve the ultimate purpose of every contract: To educate, and some­times, to persuade, the reader. That reader might be the other side’s contract re­view­er; it might be a business person; perhaps someday, it might be a judge.

Both em-dashes and par­en­the­ses can be useful in contracts, because:

  • they’re eye-catching — em-dashes es­pec­i­ally so — which can help the other side’s con­tract reviewer more-quickly grasp what you’re trying to say (which in turn can help speed up the other side’s legal review and get the contract to signature sooner); and
  • they provide more visual separation than commas, which can help avoid later disputes about the meaning of complex clauses.

Here’s a before-and-after  example that I recently used in my contract-drafting course, when we re­vised a wall-of-words provision copied from the Verizon-Yahoo asset purchase agreement:

BEFORE:

2.15  Real Property.

(a) (i) Each material lease or sublease (a “Lease”) pursuant to which Seller (to the extent related to the Business) or any of the Business Subsidiaries leases or subleases real property (excluding all leases or subleases for data centers) (the “Leased Real Property”) is in full force and effect and Seller or the applicable Business Subsidiary has good and valid leasehold title in each parcel of the Leased Real Property pursuant to such Lease, free and clear of all Encumbrances other than Permitted Encumbrances, except in each case where such failure would not, individually or in the aggregate, reasonably be expected to have a Business Material Adverse Effect and (ii) there are no defaults by Seller or a Business Subsidiary (or any conditions or events that, after notice or the lapse of time or both, would constitute a default by Seller or a Business Subsidiary) and to the Knowledge of Seller, there are no defaults by any other party to such Lease (or any conditions or events that, after notice or the lapse of time or both, would constitute a default by such other party) under such Lease, except where such defaults would not, individually or in the aggregate, reasonably be expected to have a Business Material Adverse Effect.

AFTER, with em-dashes:

2.15  Real Property.

(a)  Except as provided below, the term “Lease” refers to a material lease (or a material sublease*) under which Seller — to the extent related to the Business — or any of the Business Subsidiaries leases or subleases real property (the “Leased Real Property”).

[In class, we broke up the rest of the above “wall of words” into additional, shorter, subdivisions.]

To me at least, the em-dashes in the After version provide better visual sep­ar­a­tion than the parentheses in the Before version, and certainly more so than would have been offered by commas. This can be useful, and perhaps even critical, in seeking to avoid future dis­putes about the meanings of long-ish provisions.

More generally:  Ten years ago, Ken opined that “in a contract you don’t reason or explain. You just state rules.” Ken ‘s view would be fine if people were computers, which do exactly as they’re told: nothing more, nothing less. But people aren’t computers:

  • Humans’ memories are often short and can sometimes be “creative.”
  • A contracting party’s circumstances can change after the contract is signed — by the time a dispute arises, key employees and executives of a party could have different views of what’s important, and they might have forgotten (perhaps conveniently) what mattered during the con­tract negotiations.
  • And let’s not forget another important group of people: Business people, party counsel, judges, jurors, and arbitrators can be influenced by what they think is right and fair — and sometimes, the wording of the contract’s terms can make a difference.

The contract drafter’s ul­tim­ate mission, I submit, is to educate the reader and, where necessary, persuade them to do what your client now wants them to do.  Of course, you don’t want to overdo the use of em-dashes and parentheses, lest the draft be visually jarring to the reader.  But don’t be afraid to use em-dashes, or par­en­thet­icals, or footnotes, or whatever other language will help you get a work­able contract to signature sooner — and, maybe someday, help to persuade someone to do what your client wants.

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Law professor Eric Goldman reports about a case from last week in which the suppliers of a weight-loss food product included a “thou shalt not post any neg­ative reviews” gag clause in their contracts with consumers. The Fed­eral Trade Commission sued the suppliers on grounds that the gag clause (plus other practices) were unfair, in violation of section 5 of the FTC Act. Last Fri­day a federal district court in Florida granted summary judgment against the sup­pliers, awarding the FTC a permanent injunction and disgorgement of the suppliers’ gross receipts minus refunds — with the suppliers’ owners to be per­sonally liable — in an amount to be determined.  FTC v. Roca Labs, Inc., No. 8:15-cv-2231-T-35TBM, slip op. (M.D. Fla. Sept. 14, 2018).

The gag clause does seem pretty obnoxious, judging by the court’s summary:

Since at least September 2012, Defendants have included a non-dis­par­age­ment clause, also known as a “gag clause,” in the Terms and Conditions that prohibited customers from publishing disparaging comments about Roca Labs products. The Terms and Conditions also indicated that the pur­ch­ase price [which was $480 with “valid insurance,” $640 otherwise] was “con­­di­tional,” “dis­count­ed,” or “subsidized” in exchange for the customer’s agree­ment to the gag clause and other provisions in the Terms and Con­di­tions. The Terms and Conditions stated that the purchaser agrees to pay the full price of the product, $1,580.00, if the purchaser breached the gag clause.

In the September 2012 version, the Terms and Conditions stated that cus­tom­ers would have to compensate Defendants $100,000 for talking “badly about the Formula.” In the August 2014 version of the Terms and Con­di­tions, customers were sub­ject to being sued for an injunction and being billed $3,500.00 for legal fees and court costs for publishing any negative com­ments about the De­fend­ants’ products, services, or employees.

That version also provided that Defendants could force purchasers to sign a notarized affidavit stating that the disparaging remarks were incorrect, con­­tained factually incorrect material, and breached the Terms and Conditions.

Slip op. at 7-8 (extra paragraphing added).

As Eric points out in a law-review article, Congress passed the Consumer Re­view Fairness Act of 2016; “[a]s the House Report explains, the law seeks ‘to pre­serve the credibility and value of online consumer reviews by prohibiting non-disparagement clauses restricting negative, yet truthful, reviews of prod­ucts and services by consumers.’ By doing so, the CRFA helps advance the effective functioning of marketplaces.”

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Some presentations cover a series of topics that don’t need to be taken in any particular order.  When that’s the case, the audience will ap­pre­ci­ate being able to vote for the order in which the speaker talks about the topics.

I’ve used the voting procedure below in a talk on startup law that I’ve done for several years for the busi­ness schools at Rice University and the University of Hous­ton. And just the other day I used the voting procedure in a pres­en­ta­tion on risk man­age­­ment as part of a one-day course on IP licen­sing basics for the Hous­ton chap­ter of the Licen­sing Execu­tives Society USA/Canada. Hesam Panahi, a faculty member at the Rice Uni­versity business school, de­scribes this voting procedure to his students as a “Choose Your Own Adventure” ap­proach, after the children’s gamebook series; the students usual­ly respond with chuckles of recognition.

(Incidentally, I’m not the first to think of this approach to doing presentations, as a Google search confirms.)

Show a slide with a menu of topics

First, after your introductory remarks, put up a “menu” slide with a list of topics that you can discuss. Here’s the menu slide for my startup-law talk; each topic is linked to the start of the cor­res­pon­ding sequence of slides in the deck:

Ask the audience to vote for which topic to cover FIRST

A menu of topics for a startup-law presentation

As we’ll see in another image below:  in some presentations, the audience could have a very-different idea of the sequence in which these topics should be addressed.

NOTE: You’ll want to be sure you know the slide number of the menu slide, so that you can quickly return to the menu during the actual presentation, as discussed later.

Do a show-of-hands: Which topic to cover first?

Next, ask for a show of hands about which topic to cover FIRST (with only one vote per person), and jot down the vote counts for each topic. This provides a rough but serviceable indication of the topic sequence that the audience col­lect­ive­ly prefers.

If you’re making a pitch to just one or two people, such as angel in­vest­ors or venture capitalists, you can ask them if they’d like to specify not just the first topic, but the entire sequence of topics. Of course, you’ll want to be ready with your own sequence if they demur.

Or: Use ranked-choice online voting

With a larger audience, you can get an even-better sense of the audience’s collective preference by asking attenders to use their phones to vote online. You can use a service such as PollEverywhere.com, which allows ranked voting and provides a nice bar-graph display in real time. (I have no re­la­tion­ship with PollEverywhere except as a customer.)

Here’s an example from a startup-law talk earlier this year — notice how the preferred sequence of topics, as voted on by this particular audience, is quite different from the sequence in the menu slide above:

The audience’s topic-order preferences for a startup-law presentation

Then proceed per the vote count

Finally, discuss the topics, in the sequence voted on by the audience.  In the “slideshow” mode of Powerpoint, do the following:

  • Click on the appropriate link in the menu slide to go to the corresponding slide sequence.
  • To get back to the menu slide, just type the number of the menu slide and press the Enter key.  (For example, in my start­up-law deck, the above menu slide is #29.) This is how it works in Powerpoint; presumably you can do much the same thing when using other presentation software.

Advantages

Letting your audience vote on your topic sequence offers several advantages for both you and the au­dience:

1. Often you won’t have enough time in your presentation to address all of the topics listed in your menu slide. That’s OK, because with this voting ap­proach, you can be smarter in allocating the time you do have — audiences seem to prefer speakers who dive deep into, and answer questions about, the topics that the attenders actually care about.

2. You won’t need to worry whether you have enough material to fill your time:  Just include extra material in your slide deck, and keep going until your time is up. (This not unlike the way newspaper reporters are trained to write stories in an inverted-pyramid form so that editors can cut from the bottom up to fit the available hard-copy space.)

And who knows: What you thought of as filler material might turn out to be quite important to your particular audience.

3. Sometimes a given topic might not get any votes at all. This isn’t a bad thing: It tells you that, with this audience, you can safely skip the zero-vote topic. Surely that’s better than blindly guessing which topic(s) to address and which to skip.

And again, who knows: With a different audience, your zero-vote topic might turn out to be the favorite.

4. By talking about your topics in the order that your audience prefers, you can safely end your presentation at the scheduled time. That will score points with your audience; it’ll also endear you to your moderator or other organizer, if there is one.

 

 

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More and more, instead of doing long-form summaries of interesting cases that catch my eye, I’m simply tweeting about them at @DCToedt.

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