IP Draughts has been playing a new drafting game. He was recently introduced to a website that hosts the BlaBlaMeter. You can paste any text into the BlaBlaMeter and it will give you a score. A low score is good.
This blog generally gets a score of 0.2, which is good but not perfect. IP Draughts tested some judges’ scores, using the patent case of Conor v Angiotech. The judgments of the House of Lords scored 0.19. The judgment of Jacob LJ in the Court of Appeal received a score of 0.16. No surprise there!
IP Draughts tested some of his contract drafting, as published in our book on biotech agreements. Precedent 8(c) is a detailed licence agreement. It receives a score of 0.22 – starting to get a bit windy! However, there is hope for the next generation. Last week, IP Draughts’ trainee, AnnMarie Humphries, prepared standard conditions of sale for a client. They came in at a very respectable 0.2.
Some readers will be familiar with the European Commission’s standard funding agreement for Framework 7 research projects. Annex II to the agreement contains the main contract terms. IP Draughts tested Annex II, and it scored 0.43. The BlaBlaMeter commented:
Something’s getting a bit fishy. You probably want to sell something, or you’re trying to impress somebody. It still may be an acceptable result for a scientific text.
Can readers offer any text from the legal world that scores better than 0.16 or worse than 0.43?
Mr Pettifog
Mark Anderson
Paul Maclennan
Stephen Brett
Victor Warner
IP Draughts 
Further to my earlier comment, when I included the heading in my jurisdiction paragraph:
Applicable Law/Jurisdiction/Service of Process. The laws of the State of New York, without giving effect to its principles of conflicts of law, govern this agreement and all proceedings arising out of it. Venue for any action hereunder shall be a competent court within the County of New York. Nothing contained herein shall limit Company’s rights to institute suit in jurisdictions other than New York in seeking equitable relief to prevent or otherwise re-strain a breach of the agreement. Service of process of any such action may, among other methods, be served upon Seller in accordance with paragraph 13.1 and shall be deemed to have the same force and effect as personal service.
The meter hit 0.66. Am I truly at fault here, or is the meter fallible? I would welcome suggestions as to how these ideas might be expressed in a manner that offends the meter less.
Congratulations on the score for the notices clause!
Your law and jurisdiction clause is covering technical points using legal expressions. On a rough count, it seems to be addressing about 9 or 10 very specific points, many of which probably go over the heads of non-lawyers. I am not saying this is bad, just trying to analyse why the score is high. Your clause uses legal terms of art such as service and deemed service, conflicts of laws, venue, instituting suit, and equitable relief,
I put my standard law and jurisdiction clause through the meter. It is more generic than yours and doesn’t get into all of the same issues, particularly the question of service and conflict of laws. It reads:
The validity, construction and performance of this Agreement will be governed by English law and will be subject to the exclusive jurisdiction of the English courts to which the parties hereby submit, except that a Party may seek an interim injunction in any court of competent jurisdiction.
This doesn’t get a score as it isn’t at least 3 sentences. So I tried again, adding a heading and separating the last phrase into a new sentence, ie:
Law and jurisdiction. The validity, construction and performance of this Agreement will be governed by English law and will be subject to the exclusive jurisdiction of the English courts to which the parties hereby submit. However, a Party may seek an interim injunction in any court of competent jurisdiction.
This received a score of 0.19, which is not far off our other writing, as mentioned in the article.
I made several attempts to revise your wording, but it made very little difference to the score and in some cases it made the score worse!
For example, I tried the following:
Law, jurisdiction and service. The laws of the State of New York (but not its conflict-of-law principles) govern this agreement. The courts of the County of New York have exclusive jurisdiction, except that Company may seek an injunction in any court of competent jurisdiction. If Company serves a writ on Seller by the method stated in paragraph 13.1, this will have the same effect as personal service.
This received a score of 0.54, which is a bit better than 0.67 but not much! If you take out the heading, it brings it down to 0.32, which is where you came in! In relation to the heading, perhaps (and this is just a guess) one of the BlaBlaMeter’s criteria is to assess the ratio of long words to short words in a sentence?
Many thanks for your interest. I tried some variants myself. The problematic sentence appears to be the last sentence authorizing service by mail. This is in fact the language least likely to survive negotiation. I eliminated it, and replaced it faut de mieux with the next and ultimate section of the agreement, thus reading:
1.1. The laws of the State of New York, without giving effect to its principles of conflicts of law, govern this agreement and all proceedings arising out of it.
1.2. Venue for any action hereunder shall be a competent court within the County of New York.
1.3. Nothing herein shall limit Company’s rights to institute suit in jurisdictions other than New York in seeking equitable relief to prevent or otherwise restrain a breach of the agreement.
1.4. This agreement constitutes only an offer until signed by the last party. The parties nevertheless intend this agreement to take effect from the date stated in the introductory clause.
This brings the score down to 0.29.
Incidentally, I note that in our contracts a venue provision is of great importance, and its importance not always understood by UK solicitors in my experience. It is important inasmuch as the courts of each of the states will try cases applying a sister state’s law, provided that they have personal jurisdiction. Contracting with a party in California, I might thus find my client defending an action in California absent a venue provision. Limiting to New York County not only eliminates travel time to the other four boroughs, but makes it probable that the case will be heard before a judge who has experience of IP contracts, and in an appellate department with a body of decisional law on point.
I tried the notice provision of one of my record royalty agreement:
13.1. All notices to Seller shall be in writing and shall be delivered personally or sent by first class mail or overnight express, addressed to Seller’s address first above written.
13.2. All notices to Company shall be in writing and shall be sent postage prepaid by registered or certified mail, return receipt requested, and addressed to Company’s address first above-written, with a copy to The Law Offices of Christopher R. Whent, 270 Madi-son Avenue, Suite 1410, New York, NY 10016.
13.3. All properly addressed notices shall be deemed given on the date of delivery if delivered personally, and shall be deemed given one (1) day after the mailing date if delivered by U.S. mail or on the date due if given by overnight express. Any notice of change of address shall be prospective only.
This registered 0.06. Other sections of the agreement registered between 0.14 and 0.23, with an outlier at 0.56.
I thought I would try the famous Lord Denning case in which he said “It was bluebell time in Kent”. Lord Denning was famous for the simplicity of his language. The case is Hinz v Berry [1970] 2 QB 40 (Court of Appeal). It receives a score of 0.09!
See http://www.luyulei.net/cases/06_05-Hinz-v-Berry.html