Tag: Odds and Ends

Sporadically I hear from readers who simply want to thank me for my work. I know people read my stuff, but it’s gratifying when someone takes the time to let me know that they’ve found it worthwhile.

Because it’s a particularly nice example of this sort of communication, here’s an email I received yesterday:

EMAIL MESSAGE

THIS EMAIL is written as of this twenty ninth (29th) day of March, 2018, by and from [name]  (“Author”), a resident of and residing in the state of Florida, to Ken Adams (“Recipient”), a resident of and residing in the [state/commonwealth] of [fill in].

LET IT BE READ AND KNOWN BY ALL RECIPIENTS HERETO THAT,

I think its good practice to write people who have helped or inspired me.

I’ve been a contracts manager in the federal contracting industry for some twenty years now. I’ve had many spirited negotiations over the years, hearing the most absurd defenses of archaic contract construction and terminology.

I first saw your unequivocating style over ten years ago and have frequently referred to your publications to inform and improve my work.

Last year I established a consultancy to help companies propose, win and perform within the government procurement market. My clients are often very small businesses with no templates or staff legal support, so I am now very frequently constructing agreements. The more I do, the more I find myself relying on your scholarship.

Your career has helped the state of our art and the quality of my work, and I’m personally grateful to you for that.

Truly,

[Name]

Does contract prose matter? Of course it does. Even if you assume that the parties have notionally agreed on the terms of the deal, how you express those terms in a contract can determine how that transaction fares.

But many people who work with contracts don’t realize that. Some might be contract managers who regard contract prose as a lawyer thing, so they tune it out. Others might be titans of BigLaw who think that coming up with wording is something best left to minions. And still others—the biggest group, I suspect—might be copy-and-paste monkeys who think that contract prose is something you recycle rather than create.

For their benefit, here are the different reasons why contract prose matters.

Telling the Story

A deal consists of disparate elements; it’s the drafter’s job to weave them into a coherent whole. This involves following some basic rules: Don’t put the definition section at the front of the body of the contract. Generally, don’t try to group one party’s obligations in a section or article entitled Acme’s Obligations. And so on.

But the more complex the transaction, the more challenging that task is. You have to break the contract down to its constituent elements, reshape them, and rearrange them. If you do a good job, the reader understands better what’s going on. Reviewing, negotiating, and monitoring performance all happen more smoothly and more quickly.

Avoiding Unpleasant Surprises

Because contract language is limited and stylized, and because a lot is at stake, often things aren’t as they seem: you think the contract says X, but someone argues that in fact it says Y.

This sort of problem arises when you indulge in, for example, the notion that efforts variants involve different degrees of onerousness, or the notion that it’s helpful to say indemnify and hold harmless. When legalistic hairsplitting is at odds with semantics and logic, things get ugly.

Confusion also lurks in the many forms of ambiguity that can afflict a contract. Ambiguity of the part versus the whole; syntactic ambiguity; ambiguity in reference to time; and so on. See this article for an overview. Being able to spot this kind of ambiguity isn’t a skill that comes naturally. Instead, it requires that you train yourself. (A Manual of Style for Contract Drafting is the best resource for that.) It’s a skill that pays off, because ambiguity routinely causes disputes.

Dispelling the Fog

Even if they don’t directly result in a dispute, the shortcomings of traditional contract prose—bollixed verb structures, redundancy, archaisms, rhetorical emphasis, and so on—create a fog that makes it harder to figure out what’s going on. So everything takes longer. And the fog makes it harder to spot and root out sources of confusion.

***

So if you care about not wasting time and money, contract prose matters. If you care about being more competitive, contract prose matters. If you care about reducing the risk of contract disputes, contract prose matters.

The only time contract prose doesn’t matter is when contracts themselves don’t matter. I wrote this LinkedIn article about whether contracts matter. It might be that we’re at risk of contracts not mattering, simply because for some of us the rule of law doesn’t matter.

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Above is a screenshot my daughter sent me a few days ago, showing texts she exchanged with a friend. “Hahaha” indeed.

I thought of it on reading Casey Flaherty’s post touching on my work (here). Casey accurately summarizes my, uh, lack of restraint.

I know some people wonder why I’m so in-your-face. A commentator on litigation writing once earnestly advised me to be more easygoing. “Don’t tell people they’re wrong! Instead say, ‘That’s great, but have you considered doing it this way instead?’”

Two factors underlie my approach.

First, contract language is different. It’s more limited and stylized than litigation writing, and more hinges on nuances of wording. If you’re inartful in how you word a sentence in a brief, any adverse consequences are likely to be modest. By contrast, an awkward choice in contract language and the result might just blow the deal. Or lead to years of litigation. Or both. So pussyfooting around dysfunction in contract language does no one any favors.

And second, if you want to effect change in a field as precedent-driven as contract drafting, it does no good to murmur deferentially in someone’s ear: you’ll be ignored. That’s why I tout my wares in the marketplace of ideas from atop the biggest soapbox I can find, and why I speak as plainly as I can. I have yet to encounter someone who has said, “We would have hired you to give us a seminar or rewrite our templates, but you’re too darn abrasive!” And if someone actually feels that way, they’re fooling themselves: if they’re distressed by my candor, they’d likely fall into a dead faint when faced with the messy change required to retool their contracts.

The nature of my plain-speaking depends on what provokes it. Usually when I critique a contract drafted by a big law firm or a global company, I’m clinical in demonstrating that the emperor is lacking some clothes. I figure that the emperor isn’t going to lose sleep over what I have to say, although a few times I’ve attempted to contact a company before publishing my analysis of one of their contracts.

If a company goes out of its way to claim that its suboptimal drafting is something to be emulated, or if a prominent commentor says something stoopid, a stiffer response is in order. And if you publicly denigrate my work, I give myself free reign to set things straight.

But in all this, I try not to be a jerk.

While I was in London in November, I recorded a 26-minute Practical Law Company video with Daphne Perry on how to make contracts clearer. (What else did you expect!) Go here; if you don’t have a Practical Law Company account, you’ll have to sign up for a free trial to view it.

I’d be happy to hear what you think.