Frequently Asked Questions
There is no limit on the types of legal documents that can be discussed or commented on, including publicly available legal documents such as financing and corporate transaction agreements. The only requirement is that the publications or documents be publicly available. Do not comment on confidential or nonpublic materials. Linking to the piece that is the subject of the comment is encouraged to facilitate further dialogue on the site.
No, they are assigned randomly.
We accept all types of comments. Some comments will be aimed at the crux of a position to address a significant legal issue, or undermine a legal conclusion, while others will be more in the nature of suggestions or highlighting additional considerations or perspectives. Comments that reveal a lack of attention to detail in the underlying piece are also accepted, as details can matter in the legal profession. Pointing out overlooked but relevant case law or problematic drafting can be helpful. We just asked for civility in the comment.
Comments can raise issues with the work product or lend further support to the original piece, such as by pointing out a new angle, perspective, or nuance. If it is possible, cite cases, or provide explanations, or provide or cite other similar agreements in the comment that will allow readers to verify the accuracy of the comment, increasing its quality.
With respect to publicly available transaction documents, comments can focus on errors, ambiguities, or issues or suggest improved language. Since most transaction documents are the product of negotiation, comments should be careful not to describe points as errors if those points might have been lost in negotiation. We reserve the right to note that possibility if your comment does not do so. For instance, while most investment-grade companies are not required to pledge collateral to support their credit facilities, the inclusion of collateral should not be characterized as a mistake but as an unusual requirement. Further, do not make comments based on personal knowledge that is not publicly verifiable. For instance, you cannot say, "That law firm specializes in litigation and lacks the expertise to negotiate this corporate agreement, which is why it is so poor," or "Counsel is just a closer with a reputation for accepting drafts from opposing counsel without comment, so that is likely why this provision is so onerous to their client." We reserve the right to moderate such comments.
We aim to focus the discussion on publicly verifiable facts and analysis, so comments should be supported with citations or precedent (preferably made within the comment itself), point out obvious errors (whether in analysis, research, or drafting), or otherwise be objectively verifiable. To avoid defamation claims, comments should adhere to this standard and approach. Authors who may be unhappy with your comments are less likely to be litigious when your criticisms are analytically solid and/or verifiable.
Being passionate about a point is great, but using inflammatory language simply reflects poorly on the commenter and often reduces the effectiveness of the comment itself. Readers may dismiss the comment entirely if the author is viewed as unhinged and unreasonable. While debates can get heated, adhere to a standard of respect.
We are interested in insightful commentary that will advance the understanding of legal issues, result in improved legal documentation, correct mistakes and suggest additional areas of research or the expansions of analysis. While we intend for our publication guidelines to be fluid and updated from time to time, the following are our current guidelines, and comments are evaluated by our moderators with these points in mind:
-Comments should not contain spelling, grammar, or other errors; please proofread carefully before you post. It is difficult to take a comment seriously when it contains errors. Note that comments can be edited after posting until the point when another comment is posted. A prereview screen is available when drafting comments, and we encourage you to use it.
- Comments that do not address legal issues or are otherwise not legal in nature are inappropriate for the site.
-Comments that merely agree with another comment but do not add anything substantive to the dialogue should be avoided. Similarly, comments that reflect unsupported opinions, such as "this provision is wrong" or "this agreement was poorly negotiated," are inappropriate for the site.
-If you believe that case law has been missed, cite the missing case law in your comment. If you believe that facts have been interpreted incorrectly, provide supporting evidence for your assertion and explain the defects with particularity. Avoid broad brushing and vague, disapproving commentary lacking in specific details.
- If the language in a document is ambiguous or in error, suggest improved text or corrected language. If you believe that off-market provisions are included in an agreement, link to another publicly available precedent to demonstrate the accuracy of your assertion, and if credit quality is relevant, identify the credit ratings of the other companies as well as the company at issue. Often, credit ratings drive the terms of agreements, so higher-rated companies will have less onerous terms in their agreements. Be careful to make sure any comments to documents are in the nature of what is or is not a "market standard" reference precedent from companies with a similar rating. The goal of the site is to be helpful. Comments based on market terms may be moderated if apposite supporting precedent is not provided.
- While legal questions will be discussed on the site and language to improve documentation may be proposed, the site is not intended to provide legal advice of any kind or nature that can be used or relied on in any particular circumstance. Users are advised that they must consult with their own legal counsel and cannot rely on any suggested language or other advice or purported advice appearing in a comment or otherwise on the site.
-The site is not intended to be an extension of a law firm where lawyers can go to get help in researching an issue or drafting a provision, nor is the site intended to help students with their homework, parsing legal issues, or critiquing case law and other legal works. While requests for explanations may be acceptable, you should demonstrate that you have attempted to understand the provision or have tried to determine whether a particular provision raises a legal issue. Questioning whether a provision violates the law or is ambiguous can be fine, as long as the question explains the potential violation or demonstrates the ambiguity.
- Comments that are general in nature must cite specific articles or documents or contain references to specific guidelines.
-Moderators reserve the right to reject comments that are unclear, appear to be wrong, gratuitously nasty or mean-spirited, or otherwise violate these guidelines.
The site encourages linking to support documentation, whether data, case law or other agreements. This bolsters the credibility of the comment.
When commenting, the site seeks to notify the author of the document or agreement. If that information is not publicly available (sometimes agreements do not provide such information to outside counsel in the notice provision or otherwise), the site will not be able to notify the author.
The moderators do not verify comments for accuracy; it is up to the readers to evaluate the merits of the comments. There is no warranty with respect to the accuracy of any comments, proposed language, or suggestions on the site.
Moderators may remove or edit comments that violate the site's guidelines or are otherwise inconsistent with the mission of the site, which is to improve the quality of legal work through polite and respectful dialogue.
Our readers can help us by reporting comments to us that may violate our guidelines. A reporting button is included on each comment for convenience.
Comments can be made in your real name or anonymously, as you choose.
Users control their identities on the site. For extra precaution, access the site via Tor, utilizing the Tor browser bundle.
The site does not limit the range of legal documents that can be the subject of comment. The site was created, in part, to bypass the blockade that exists in the criticism of legal work product.
The site cannot identify anonymous comments, and moderation is focused on the content of the post, not the author.
The site promotes the free exchange of ideas and is intended to provide a forum for commenting on publicly available legal documentation.
This site provides peer review of publicly available legal documents. The goal is to improve the quality of legal work through scrutiny and discussion. Often, formulations of particular clauses are carried over from one transaction to another and from one law firm to another. So mistakes in drafting and ambiguous phraseology can spread like a virus. The site does not arbitrate drafting disputes, as its philosophy is to promote consensus through debate. Moreover, the site does not have the personnel necessary to undertake such an endeavor.
Counsel has a continual right to reply, and is encouraged to reply, to comments on the site. We believe that attorney work products are often improved through the commenting process. In some cases, counsel will agree with, and learn from, the comments. In other cases, counsel may disagree with the comments. In any event, responses should contain detailed analysis. Simply stating "I disagree" is an unhelpful, unpersuasive response that will not advance the dialogue.
Drafters should be willing and able to defend their work product. An inability to respond to detailed problems with an agreement that are identified in a comment call into question the quality of the agreement.
With respect to documents, sometimes ambiguities in drafting are intentional, at least on the part of one counsel. For instance, counsel may believe that any attempt to clarify a certain point or issue during negotiations will simply result in a clarification to their client's detriment. Off-market provisions may be included in a document as a bargained-for result of negotiations. As such, comments pointing out ambiguities or off-market provisions are not necessarily criticisms of a particular document, given that historical backdrop. On the other hand, ambiguities and the inclusion of off-market provisions may be mistakes. The goal of the comments is to note the issues so that the language and concepts are not used as precedent and replicated in other deal documents, regardless of the drafting and negotiating history. Counsel should not reply to a comment if doing so would reveal client confidence. Finally, the site has a legend stating that comments on particular deal documents are not necessarily indicative of mistakes and are not necessarily a reflection of the competency of counsel.
Criticisms of legal work products may or may not be justified. Comments need to be evaluated on their merits. Some comments may be about significant provisions in an agreement while others may be more granular in nature and insignificant. With respect to serious issues raised in agreements, counsel is encouraged to respond and defend their work. An inability to do so calls into question the quality of the work product.
With respect to the legal work product, some provisions may be less than ideal, but that could be the result of negotiation, compromise, or a strategic decision. Clarification of an ambiguous term in a contract, for instance, could simply result in a disadvantageous clarification from the point of view of one of the parties. Nevertheless, there is obvious merit to comments that note such ambiguities so that if the provision is used as a precedent for other deals, the ambiguity is fixed. Accordingly, comments that suggest improvements in language do not necessarily equate to a negative reflection on the attorneys involved in preparing the original work product. On the other hand, mistakes occur in drafting, and a comment may raise a legitimate question about the quality of the work product. Attorneys are encouraged to respond to comments to the extent that they may do so without revealing client confidence or otherwise compromising ethical obligations. The goal is to improve the quality of legal services.
We do not remove comments from documents that have been fixed in response to comments. Other readers may have similar comments or concerns, and viewing the comment thread history on the site may be helpful to them. Further, the moderators are unlikely to be in a position to arbitrate such disputes as a substantive matters. We note that the correction may be unsatisfactory, superficial, or otherwise wanting, and the comment thread history will continue to be informative.
Comments on documents should not be automatically viewed as a malpractice accusation or even a credible accusation. If the draft can be defended without violating client confidence, attorneys are encouraged to respond and defend their work. If the work product is not defended, that does not mean the draft is flawed or that malpractice occurred. It may, however, reduce confidence in the quality of the work and limit the use of the document as precedent in other transactions. If the draft does not reflect best practices, for whatever reason, knowing that information is beneficial to our community as we strive to produce the highest quality legal work product for our clients.
We are not sure why the motivation of the commentator is at all relevant. Perhaps someone is engaged in a campaign to undermine a particular firm's work or create doubt in the minds of the officers of a specific company about the quality of their existing legal representation. Policing motives are not within the scope of the site, and our readers can evaluate the substance of the comments. If a comment is helpful or accurate, the motive of the commenter is not particularly important. Moderation strives to limit comments to those that are factual or verifiable. Drafters may respond to comments, and readers can form their own conclusions.
You do not need to be a lawyer to comment on the site. The most likely reason a comment has not appeared is because it is awaiting moderation. The status of a comment can be discovered by logging in, after which a comment will be visible but marked as pending moderation. Moderation can take up to a week, so please be patient.
Owners of copyrights may notify the site of potential copyright violations, but the site will vigorously oppose unfounded or spurious demands to remove materials. We call to your attention that the reproduction of figures and texts for the purpose of "criticism" is protected under the Fair Use exception to U.S. copyright legislation, where ExpostFactoForum is incorporated and where the site is hosted.
This site and all comments, publications, or linked publications do not provide legal, accounting, or other professional advice or opinions on specific facts or matters. This site disclaims all liability whatsoever in connection with its use. Readers are encouraged to consult with their own advisers. This site, as well as the comments, may constitute attorney advertising. Notwithstanding the foregoing, evaluating whether a specific malpractice policy covers specific commenters is beyond the scope of this site.
Yes, lawyers who do not want comments on their documents should consider whether they should only represent private companies.
As noted above, the site does not review comments for substantive legal accuracy, so factual comments conforming to our guidelines may be incorrect, misleading, unconvincing, inarticulate, or misguided. For this reason, we urge our readers to evaluate comments critically and make up their own minds about the quality and accuracy of the comments. If you believe that a comment is wrong, misses the point, or is otherwise misguided, post an explanation sharing your views to educate the rest of the community. Drafters are in the best position to evaluate comments, and so they are encouraged to dispel misinterpretations of their work product.
The site will not willingly reveal information that could help identify a commenter who has posted anonymously. The goal of the site is to facilitate dialogue about substantive issues. The site discourages personal attacks and arguments based on anything other than substance. The identity of a commenter ought to be irrelevant to the substance of the comment, and the site wants to encourage commenting, including from those who might be reluctant to comment using their own name.