Friday, February 1, 2008

Contract Drafting - A Look at Best Efforts

Adams Drafting blogs about writing legal documents about the same way Michael Jordan played basketball. While reading What the Heck Does “Best Efforts” Mean? , I debated myself about actually doing this blog. I get few lawyers reading this blog and this is a bit too much of "inside baseball" for most laypeople. So why am I writing this post? Because the idea of this blog was not to exclude the public.

If you want to see the complexity of drafting contracts, read Adams' article. For those wanting to understand why lawyers are useful for drafting their contracts:

But whereas some lawyers regard reasonable efforts as a misinterpretation-proof replacement for best efforts, others regard both terms as two points on a spectrum of efforts that a party might be required to expend, ranging from the relatively modest to the extraordinary, the latter being represented by best efforts. This interpretation is facilitated by colloquial use of reasonable to mean “not extreme,” as in She got a reasonable grade on her French test.
What difference does this make? Money is my short answer. The difference lies between a contract successfully carrying out the intent of its parties and an unsuccessful one.

For those lawyers in the crowd, think about this paragraph:
I think the problem is that people approach it as an issue to be resolved by case law, whereas I see it first of all as a matter of semantics. What does best efforts mean in general usage? And what are the implications of seeking to have it mean something other than that?
Provocative and worth reading.