Post image for Revisiting “No Reliance” Language in Contracts

A (fairly) recent 8th Circuit case reminded me of the importance of including “no reliance” language in even simple contracts.

Exploring the idea of drafting simplified contracts for simple situations, I posted a sample contract for a sale of goods a couple of years ago. The idea was to draft a B2B contract that would afford minimum effective legal protection in situations where there’s no special reason to think that the agreement would be litigated. A reader left the following comment and I revised my form agreement in response:

The Disclaimer of Warranty and Entire Agreement clauses are very likely insufficient to negate claims of fraudulent inducement. I would suggest having a clause to address a potential fraudulent inducement claim even under a “minimum effective legal protection” scenario to decrease the buyer’s opportunity to manufacture factual disputes that would preclude a dismissal in seller’s favor. Language acknowledging that the Buyer is entering into the agreement based only on its own inspection of the goods (even if the seller has superior/peculiar knowledge of the goods) and an acknowledgement that Seller has made no representations about the goods may help.

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Advice

I attended a presentation to a room full of business owners the other day. The presenters were professionals who operate in trusted advisor roles. The topic was improving the value of your business by making yourself less indispensable.

An interesting part of the event was a discussion during the Q&A following the presentation. Someone mentioned the frustration of receiving financial statements from a CPA without commentary. What benefit to the business owner is the information without context, without direction, without advice?

If a business hires a CPA to prepare financial statements, and the CPA delivers financial statements, she’s done her job, right? Maybe. Or maybe not. The consensus in the room was that CPAs who do so aren’t doing their whole job, or at a minimum are letting the opportunity for providing additional value–maybe for additional fees–slip away.

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Post image for Are Lawyers Like Gardeners Who Mow with Scissors?

Law firm business models are under a lot of pressure. And this has been true for quite some time. When I was a young lawyer at a regional corporate firm, I would go to the office early in the morning, leave in the evening, and bill almost every minute in between. And clients would pay for all that time. But it’s increasingly difficult to get clients to oblige.

Companies have long complained about the ever-increasing hourly rates charged for legal work. And during the recession in the late 2000’s, they began to push back on rates in a big way. They also started pulling more of their work in-house. Companies were able to do more of their own legal work because there was simply less to do during the recession. Plus their in-house lawyers were willing to work extra hard in light of market turmoil and job insecurity. Then, when business began to pick up and corporate legal departments once again needed help with overflow, they simply hired new lawyers rather than sending the work to their outside firms.

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Post image for Save Yourself From Yourself With a Simple Email Checklist

The end-of-year deal-closing season has just come to a close. So I’ve been sending a lot of emails that I don’t want to screw up.

We’ve all felt it, that feeling of dread deep in your gut just after you hit “send.” Did I send that sensitive document to the wrong party? Did I attach the right document? Did I delete stuff from the bottom of the email chain that shouldn’t be forwarded? Fearing the worst, you click on the email in your “sent” folder to see whether life will go on as normal. Or whether you’ll need to polish up your resume.

Routine is a quality killer

Sending an email is so easy. It’s so routine. So why do we mess it up so often when there’s so much at stake?

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Post image for Blog Hop — Why I Write

One of my favorite things about blogging is sharing things I find interesting with others. That’s also why I like Twitter so much. So when my friend and fellow blogger Bill Ellis asked me to participate in a blog hop, I jumped at the chance.

Bill’s a branding expert and he writes a blog about what he calls fearless brands, such as Tiffany’s, the Naked Cowboy, the Beatles, and the St. Louis Cardinals. After a successful marketing career at a certain brewery that’s long been known in St. Louis at “the Brewery,” Bill put out his own shingle to help young businesses discover and articulate who they are as well as their key value to the market. Bill’s the first person I called when I decided to launch what has become Blue Maven Law. Here’s a link to Bill’s blog hop post. At the end of this post, I’ll introduce you to some bloggers I admire and whose blogs I read regularly.

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Post image for Making Friends Through Blogging

Later this week I’ll be serving on a panel hosted by The Net Impact, the web development company that built my Blue Maven Law website. I’ll be the only civilian (i.e., amateur) on the panel, and my role will be to discuss the good and bad of blogging as a professional services provider. (Here’s a link to info about the event.)

The highlight of the program will be Q&A, but my prepared remarks will focus on two points: (1) blogging (and social media) is a great way to get to know interesting people, and (2) posting substantive articles that answer questions that are on people’s mind is an effective way to generate traffic on your website.

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Post image for What’s the Role of a Commercial Attorney?

As a private attorney who’s responsible for bringing in new business, I often think about why businesses need to hire an attorney to help with their contracts. Here are some thoughts about how I view my role in business transactions.

Not all law practices are alike, but I usually operate in one of two contexts: either I’m dealing with a senior business executive (usually the CEO or the owner) of a company that doesn’t have in-house counsel, or I’m basically doing overflow work from the general counsel’s office of a largish corporation. In those cases, I’m usually dealing with someone in the sales division of the company on each contract, although I’m hired by the general counsel or another senior attorney.

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Post image for If You Could Have Only Two Clauses in Your Contract, Which Would You Choose?

I admit it; I love survival reality shows. It started with “Survivorman,” then “Naked Castaway,” and “Dude, You’re Screwed.” Whether it’s a man alone in the wild with only a few survival items or a commando-type guy kidnapped by his commando-type friends and dropped off someplace remote, if someone’s trying to survive in the wild, I’m going to be interested.

In one survival show, two strangers are dropped off in an inhospitable locale to survive for 21 days. They have nothing on them (not even clothes), but they’re each allowed to bring one survival item. Popular items are a firestarting tool, a knife, and a bowl. With these three tools, you can cover the basics: build a shelter, build a fire for warmth and to cook food and boil water, and hold the water while it boils. Take one of these items away, and you’re missing one of the necessities of food, water, and shelter. Each couple has to make a choice of which necessity to leave to chance.

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Post image for Nozbe Privacy Policy

I signed up for Nozbe today to help me get stuff done — and to keep things from falling through the cracks. I liked their privacy policy, so I thought I would share it with you. (If you notice a surge in my blogging frequency, you’ll know Nozbe works.)

Privacy Policy

Your privacy is of most importance to us.

When you sign up for Nozbe, your data is being stored in our database and you are automatically subscribed to a Nozbe Users’ Newsletter.

Your data won’t be shared or sold to anyone, for any reason. You have the right to remove your account and delete your data if you wish. It’s all up to you.

You can un-subscribe from the Newsletter at any time by clicking on the link at the bottom of every Email message you would receive.

When processing payments we don’t store your credit card details on our servers. We only send them to our bank for validation.

We are dedicated to your data security

Read more on our secure server infrastructure and triple-backups.

Image credit: iphotobank via Shutterstock. Image may not be copied or downloaded.

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website terms of service

Dropbox revised its terms of service recently and sent an email to its users notifying them of the changes. I haven’t read through the entire ToS yet. But Bill Carleton’s post on his Counselor @ Law blog yesterday prompted me to take a look at the arbitration clause. I’m sharing my comment to his post here because I’d like to hear some contrary views. Let me know what you think in the comments or shoot me an email.

Here’s my comment:

Bill: When I read the bit about arbitration in Dropbox’s email alerting me to changes in the ToS, I assumed Dropbox was inserting a class action waiver in response to recent favorable court cases. Many companies have used such provisions to effectively insulate themselves completely from customer complaints. I view this as deeply troublesome, and I’m leaning toward hoping that Congress will overturn recent precedent by legislating consumer protections. (This is in contrast to my initial reaction to the cases, as reflected in my post AT&T Mobility v. Concepcion: Is Class Arbitration Dead?. My views have changed as the subsequent Supreme Court decisions have taken a different tack than I expected and companies have taken advantage of the decisions to the detriment of their customers.)

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