• Ken Adams

Thanks to LegalSifter, Another Example of Dysfunctional Boilerplate Is Brought to Light

Updated: Jan 24

I’ve been LegalSifter’s chief content officer for a little over a year. And I gotta say, it has rather constrained my lifestyle!

For the previous 14 years, I had sporadic speaking engagements and consulting gigs. That left me oodles of time for ruminating about contract language. Now I’m a regular working stiff. Oh well—I was happy to do whatever it takes to build something that makes my approach to contract language more widely available.

But something unexpected has happened. As part of my workaday LegalSifter tasks, I’ve been exposed to way more contract-language issues than would have otherwise been the case. That’s because building and overhauling specifications for a bunch of Sifters—our name for our algorithms—has resulted in my spending untold hours rooting around in contracts, looking at all the ways one might address a given issue. In the process, I discover unexpected stuff.

Last night’s activities offered an example of that. I thought we could improve our Sifter Execution in Counterparts, so I looked at dozens of “counterparts” provisions. In the process, I noticed two things. First, it’s not clear what the word counterpart means. I and others have been under the impression that it refers to a copy of a contract signed by fewer than all parties, but Black’s Law Dictionary says counterpart means “duplicate.”

And “counterparts” provisions routinely exhibit a problem I’ve encountered in other provisions—they say the same thing twice, once in a way that broadly makes sense, once in a way that doesn’t.

For my blog post discussing those issues, go here.

So that’s been an unexpected benefit of my LegalSifter role. And LegalSifter customers also benefit from such discoveries, in that what I discover makes itself into the advice we offer them. I’ll soon be revising the advice that accompanies Execution in Counterparts. (The advice will continue to say that “counterparts” provisions state the obvious.)

(Bonus point: I’m looking to change the name of Execution in Counterparts to Signing in Counterparts. The word execute is jargon for giving legal effect to something by signing it, and using jargon isn’t a great way to communicate. And execute and execution are ambiguous, as they could be understood as referring to one or the other of signing a contract and performing under a contract. That can cause fights; for an example of that, see this blog post.)