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'Best Efforts,' 'Commercially Reasonable' and Other Terms No One Understands
Contracting parties routinely use terms like “commercially reasonable” and “best efforts” to describe future performance, sometimes for strategic reasons, but usually because the demands of the deal do not permit the time needed to negotiate what steps will actually occur, or because the parties cannot agree and prefer to table the issue for another day, hoping it will not become a problem. As clients come to learn, however, adopting such undefined terms often leads to costly, time-consuming disputes.
In this article, we explore why these vague contractual terms are routinely used, explain how they have been inconsistently interpreted by the courts, and offer some practical tips to minimize the havoc ambiguous terms can wreak.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Risks of “Baseball Arbitration” in Resolving Real Estate Disputes
“Baseball arbitration” refers to the process used in Major League Baseball in which if an eligible player's representative and the club ownership cannot reach a compensation agreement through negotiation, each party enters a final submission and during a formal hearing each side — player and management — presents its case and then the designated panel of arbitrators chooses one of the salary bids with no other result being allowed. This method has become increasingly popular even beyond the sport of baseball.