Just to confirm what we discussed… — The first line of an email sent after a call.
To recap our call… — A summary follows, so that both sides have the same record.
Can you put that in writing? — A spoken promise is not yet enough.
Boilerplate. — The standard clauses of a contract. The word first meant the iron plates of a boiler. Later it meant ready-made text that newspapers received on metal plates. Ed McBain used it for legal text in 1965: “The rest of the will was boilerplate.”
The concert rider of the rock band Van Halen for its 1982 world tour included the line: “M&M’s (WARNING: ABSOLUTELY NO BROWN ONES).” In his 1997 memoir, the singer David Lee Roth recalled the clause as: “There will be no brown M&M’s in the backstage area, upon pain of forfeiture of the show, with full compensation.”
Roth explained the reason. The rider contained detailed technical and safety requirements, and the candy clause showed whether the venue had read them. If he found brown M&M’s, he wrote, “Guaranteed you’re going to arrive at a technical error. They didn’t read the contract.”
Many American contracts end with an integration clause. A typical version reads: “This Agreement contains the entire understanding between the Parties and supersedes any prior understandings.”
Under the parol evidence rule, earlier promises and conversations “generally” cannot be used to contradict the written terms. They can still be used to show “illegality, fraud, duress, mistake.”
Before using a gym, a climbing wall or a trampoline park in the United States, customers usually sign a release of liability. They agree not to sue the business if they are injured.
The protection has limits. Nearly every state refuses to enforce a waiver of liability for gross negligence, and a few states, among them Louisiana and Oregon, do not allow recreational businesses to use such releases to stop lawsuits.
Since April 1, 2025, California landlords must photograph a rental unit when the tenant moves out, before deducting anything from the security deposit. For tenancies starting on or after July 1, 2025, they must also photograph it at move-in.
The photos go to the tenant together with the written list of charges. The landlord must return the deposit within 21 days of the tenant moving out.
At a first visit to an American doctor, the patient is handed a clipboard with forms. One asks the patient to sign that they have received the practice’s notice of privacy practices.
The HIPAA Privacy Rule requires a provider with a direct treatment relationship to “make a good faith effort to obtain written acknowledgments” from patients “that they have received the provider’s notice,” at first service delivery.
On June 30, 2000, at Congress Hall in Philadelphia, President Bill Clinton signed the Electronic Signatures in Global and National Commerce Act. He used a smart card to sign it. “With the swipe of a smart card and the click of a mouse, they will be able to finalize mortgages, sign insurance contracts, or open brokerage accounts.”
Under the law, a contract or signature “may not be denied legal effect, validity, or enforceability solely because it is in electronic form.” A consumer’s consent to electronic records cannot be assumed from silence.
In October 2023 Dr. Kanokporn Tangsuan died of a severe allergic reaction after eating at a restaurant at Disney Springs in Florida. Her husband, Jeffrey Piccolo, sued. Disney asked the court to send the case to arbitration. He had agreed to Disney’s terms when he signed up for a Disney+ trial in 2019, and again when he bought Epcot tickets online in 2023.
After public criticism, Disney reversed course in August 2024. “We’ve decided to waive our right to arbitration and have the matter proceed in court,” said Josh D’Amaro of Disney.
In October 2001, as the Enron investigation began, a lawyer at the accounting firm Arthur Andersen told employees to follow the firm’s “documentation and retention policy.” “Extensive shredding of documents and deletion of e-mail messages followed,” until November 9, the day after the SEC’s subpoena.
A jury found Andersen guilty of obstruction of justice on June 15, 2002. The firm surrendered its CPA license on August 31 and stopped operating in the United States. In 2005 the Supreme Court unanimously overturned the conviction because the jury instructions were too vague.
In Zubulake v. UBS Warburg, heard between 2003 and 2005, Judge Shira Scheindlin ruled that once a lawsuit is likely, a company must preserve its relevant records, including email. Lawyers must ensure this “by instituting a litigation hold on key data.”
UBS had failed to preserve relevant emails stored on backup tapes, although its duty to preserve began “at least as early as August 16, 2001.” The judge instructed the jury that it could infer the lost emails would have hurt UBS.