Michigan Bar Journal — The BUSKLAW Newsletter

Since my retirement from in-house corporate law in 2014, I've written or co-written several articles about using plain-language in contracts for the Michigan Bar Journal. And a new article has recently appeared in the October 2017 issue. But those articles haven't been a lone endeavor in any sense; I've had several plain-language experts give me their input along the way:

Plain English Scholar and WMU-Cooley Law School Distinguished Professor Emeritus Joe Kimble who invited me to write for the Journal to begin with and has since freely given me editorial advice that not only benefits the particular article du jour but also helps my legal writing generally. And a hat tip to Journal Editor Linda Novak who has put, editorially-speaking, the "frosting on the cake" before publication of these articles.
Michael Braem, J.D., Contract Manager of the Michigan State University College of Human Medicine, who has co-authored some of the articles with me. Michael has also become a friend who doesn't mince words about 45's daily shenanigans.
Dr. Peter Schakel, Hope College English Professor Emeritus. Peter taught me basic writing at Hope College as a freshman in the fall of 1970. He was also my debate coach and mentor while at Hope. After retiring from Hope a few months ago (he joined the faculty in 1968!), he is still teaching at Hope part-time We meet for lunch in Holland at least once a year and talk about good writing style. I quoted Peter's thoughts on The Burkean Pentad in the Curiouser article cited below.
Ken Adams, J.D., legal writing expert par excellence and the author of what may be described as the plain-language Bible in contract drafting: A Manual of Style for Contract Drafting. I've learned a lot from Ken's book and blog and don't pretend to match his expertise gained from years of thinking and writing about plain-language concepts.

So I thank Joe, Linda, Michael, Peter, and Ken for giving this plain-language convert their valuable editorial assistance and sage advice. They refined my written thoughts on plain-language concepts and were never hesitant to give me constructive criticism.

So here are the titles of and links to the Journal articles (in PDF format) that I have thus far authored or co-authored in chronological order (most recent first):

MBJ Month & Year	Author(s) & Title
October 2017	Busk, Using Shall or Will to Create Obligations in Business Contracts
October 2016	Busk & Braem, Curiouser and Curiouser Excuses for Legal Jargon
August 2015	Busk & Braem, What Bilbo Baggins’s Contract Teaches About Plain Language
February 2015	Busk, Why I Made Plain-Language Changes to Your Contract
January 2015	Busk, Fighting the Good Fight: Plain-Language Tales from the Corporate Trenches

Finally, I would be remiss not to call out those few lost legal souls, deaf to the merits of plain language in contract drafting, who have crossed my path over the years. Debate is healthy unless you start from a bias that tolerates - or favors - legal jargon. Then it's pointless.

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If you find this post worthwhile, please consider sharing it with your colleagues. The link to this blog is www.busklaw.blogspot.com and my website is www.busklaw.com. And my email address is busklaw@charter.net. Thanks!

This post is directed to a small Michigan-based technology business with several employees who write code or produce other creative work. Start-up technology businesses may find this post especially relevant; established smaller technology firms may also find this useful. As always, the recommendations in this post should not be taken as legal advice and are simply general guidelines for your consideration.

Here are what I consider basic legal protections that you – the astute entrepreneur - should have in place for your technology business from the day that you open the door:

Protect Your Intellectual Property. Your creative output may be protected by U.S. patent, copyright, trademark, or trade secret law. Know the basics of these legal protections by reading this excellent article in the February, 2016 issue of the Michigan Bar Journal. Then, find a good intellectual property (I.P.) attorney to discuss the best cost-effective ways to protect your valuable I.P. assets.

Have Your People Sign Employment (or Independent Contractor) Agreements. Your employees should sign employment contracts as an integral part of the hiring process. Standard provisions should include confidentiality, I.P. rights assignment outside of the work for hire doctrine, non-compete, conflict of interest, and acknowledgment of any separate human resources policies such as vacations, benefits, leave of absence, etc. And consider including a mandatory arbitration provision in exchange for discharging an employee only for “good cause.” Finally, if you want to classify any of your people as independent contractors rather than employees, you will need to have special agreements with these folks to (hopefully) avoid tax and other liability problems.

Respect the Formalities of Your Business Entity. Whether you are a corporation, limited partnership, or limited liability company, there are statutory requirements to observe if you want to keep the legal protections afforded by these entities intact. Your attorney should help you understand these formalities. In the case of a corporation, you need to have annual shareholders’ and directors’ meetings with appropriate business actions. And it’s wise to have your lawyer attend these meetings, if only to make sure that the appropriate resolutions are properly enacted and put in the best legal form. The danger of ignoring the required formalities includes personal liability for debts incurred by the business entity.

Adopt a Record Retention Policy. Even a small business can be hit with a lawsuit, and when that happens, you’ll be glad that your board of directors adopted a record retention policy (RRP) and appointed one of your detail-oriented employees as a record retention manager. The RRP should detail how long and in what form your business must keep its documents, including emails, contracts, employment agreements, payroll records, purchase orders, invoices, receipts, licenses, etc. It should also specify when the policy will be suspended if there is litigation (this is called a “litigation hold”). An RRP is vital to justify the normal destruction of business data that may be requested by a plaintiff’s attorney on a "fishing expedition." Your business may be small, but you need an RRP! And once adopted, make sure that you follow it (as with all of your other company policies)!

Have the Necessary Insurance in Place. Find a good insurance broker who understands your business and then buy the necessary insurance to protect your people and assets. For a technology firm, consider technology errors and omissions insurance. If you keep customer data (especially credit card data) on your servers or subcontract that function to a third party, you should obtain a cyber and privacy insurance policy to protect you from claims resulting from a data breach. And you can also insure against cyber ransom, as this article notes.

Protect Yourself with Contracts. Even if you have only a handful of contracts, make sure they are signed, dated, safely stored, can be produced in a legible format, and don’t put you at a disadvantage. And don’t accept any contract that lands on your desk, however innocent it may appear, without first consulting with your attorney! Agreements to be wary of include leases (if you lease equipment or your business location), supplier agreements, customer agreements, bank loans, service agreements, and non-disclosure agreements. (And avoid letters of intent for the reasons discussed here.) These documents will contain legal jargon that you won’t understand. Consider having your attorney draft a set of plain-language purchase order terms and conditions that you can routinely send to your suppliers. And tell your attorney that you want a plain-language arbitration provision in all of your contracts to avoid the burdensome time and expense of litigation! Finally, don't try to save a few bucks by going to an Internet legal forms site and downloading a document that sounds okay to you. You're rolling the dice with that approach!

Do Lunch with These Three. You’ll be busy building your business, but you’ll still get hungry around noon. Resist the habit of avoiding lunch (exception: to exercise) and take the following three people to lunch on a regular basis: your attorney, your outside accountant, and your insurance broker. You “don’t know what you don’t know,” so you’ll benefit from talking to these folks. If you don't benefit, find a replacement for the unhelpful person.

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Smaller firms aren't immune to the risks of doing business in a litigious culture. You need to devote time, effort, and the necessary expense to keep your firm on an even keel by considering these basic suggestions.

If you find this post worthwhile, please consider telling your colleagues about it. The link to this blog is www.busklaw.blogspot.com and my website is www.busklaw.com. Thanks!