So when some do materialize, it’s a little like a birdwatcher spotting a variegated flycatcher.

Last week I held one of my West “Drafting Clearer Contracts” seminars in Boston; a good time was had by all. Present were two associates from Brown Rudnick, an AmLaw 200 law firm. They were kind enough to provide the following testimonials:

This seminar was insightful, very well structured, and covered key topics. Ken Adams was very engaging and presented the material in a way that made it interesting and accessible. What I learned will be very helpful in my law-firm work. I expect to be consulting regularly not only Ken’s book but also the seminar slides and exercises.

Lan L. Marinelli
Associate, Brown Rudnick LLP

The exercises that we worked through together were a valuable part of the seminar. Ken is a great speaker—he kept the room engaged and made the seminar interesting. I know that I’ll be implementing most of the drafting suggestions in my day-to-day work as a corporate associate. Thank you for a great seminar. Well done!

Shelly L. Shaw
Associate, Brown Rudnick LLP

So I remain confident that how many law-firm associates attend my seminars is a function of a stew of cultural issues that have little to do with the merits of my seminars or the relevance of the topic. In any event, the show goes on:

• October 13, Minneapolis
• October 20, Washington, D.C.
• November 3, Toronto

Incidentally, I’ll continue doing my seminars even after Koncision Contract Automation is up and running. I expect we’ll come up with some sort of interesting marketing tie-in.

If you’d like to take advantage of my being in the area and arrange an in-house seminar, send me an email

Ken Adams has continually presented a great “Drafting Clearer Contracts” training program for our associates. His sessions are extremely clear and organized and participants always come away with useful take-aways.

Lori Thomas, Professional Development Manager, Gardere Wynne Sewell LLP

Although I’ve spent a significant part of my practice drafting documents, Ken Adams’s hands-on program reminded me of important issues that often get buried in verbiage, and it taught me new thought and drafting skills. For example, using his “categories of contract language” to focus on what you’re trying to accomplish in a given provision helped me think about ‘shall’ and ‘must’ in a new way. His exercises were stimulating, interesting, on point, and current. A great set of materials and a lot of fun!

Timothy J. Tyler, Counsel, Vinson & Elkins LLP

To keep things interesting on this blog—at least for me!—every so often I’ll get on my soapbox about the state of mainstream contract drafting, or look fondly to some grand utopian document-assembly future. But my instinct is rooted in the practical. I’m acutely aware of the hurdles facing any law firm looking to put its contract process on a rational footing, and the challenges facing new associates trying to make sense of the contact verbiage they’re asked to slog through. So when I conduct a seminar at a law firm, we discuss not only what language works best,  but also which battles are worth fighting and which are not worth fighting, depending on what hat you’re wearing in a given deal.

I think it’s that mix of the rigorous and the practical that makes my in-house ”Drafting Clearer Contracts” seminars work.

And 2009 just got busier, as I’ve added some new “Contract Drafting—Language and Layout” public seminar dates, namely U.S. dates for the second half of 2009 and new Toronto and Vancouver dates. Click here for the details.

Remember that members of the ABA Section of Business Law are entitled to a discount on my U.S. seminars. And if any chapter of the Association of Corporate Counsel wants to arrange a discount for its members, let me know.

To whet your appetite, here are some newly harvested testimonials:

This was by far one of the most useful professional development programs I have attended in years. I highly recommend it to lawyers of all levels of experience. Lisa Houston, Knowledge Management Lawyer, Fraser Milner Casgrain LLP

An excellent presentation. Quite eye opening—it eliminated some of the myths of archaic drafting. That was very helpful.
David Holmes, Associate, Miller Thomson LLP

This is the most useful CLE I have ever attended. Ken Adams’s Manual will be an essential resource for me now.” Rob DesRoches, Canadian Institute for Health Information (CIHI)

This course provided excellent information and practical suggestions. Ken Adams’s common sense approach to contract drafting was refreshing. Jane Fedoretz, Counsel, Petro-Canada

Ken’s seminar proved its value in the first hour, and I’ll be recommending it to my colleagues. Here’s to well-drafted contracts! Marilyn Erwin, Manager, Contracts & Pricing Dept., Teledyne Scientific & Imaging, LLC

Most of the testimonials are from my most recent Toronto date, attended by a sellout crowd of 76. It went tremendously well.

With that in mind, I’ve been mulling over the feedback from a three-hour “Contract Drafting—Language and Layout” seminar I gave late last year at a well-known mid-size Washington, D.C. law firm. On the off chance that any of you might find it of interest, here’s the gist of it.

But before you leap in, bear in mind that because this was an in-house seminar for mostly first- and second-year associates, it meant the audience was both captive and inexperienced. I find that makes for distinctive feedback.

Positive Feedback

The feeback was sent me by the professional development manager. I asked that she give me her thoughts, too, as she could be counted on to have a rather broader perspective than the participants. Her verdict:

You had a great impact here, a lot of partners were requesting your book after the presentation and were very interested in it.

As for the 18 participants, if I combine the responses to the various questions, 85% were strongly favorable or favorable, and the rest were neutral, apart from one outlier response to one of the questions. Below is a selection of the positive things they had to say.

Mr. Adams did a good job of making broad introductions to the drafting and style points covered in the manual. It was a well-organized and though-out presentation.

The book is great. I’m glad I got to take one with me. I think it will be a very handy reference.

The portion on kinds of language and how they function in a contract was incredible—especially seeing how a misplaced “shall” can really change the meaning of a provision.

He did a great job of picking out a few important but succinct points to cover in his presentation, without trying to cover everything in his book.

The presentation … demonstrated in a memorable way the problems of ambiguity that can arise from bad drafting habits.

The topic really applies in day-to-day lawyer life, and I think it was the perfect time to attend for 1st and 2nd year attorneys. It answered A LOT of the questions that I have wanted to ask before but, given project deadlines, felt that it would waste time to ask.

I thought he did a phenomenal job packing actual useful information into a tight time frame, and he often distilled the philosophy behind his choices into nuggets that could be useful in more than one situation in the future.

It was kind of like Guberman for contracts, and considering how great Guberman is, that’s a big compliment.

The final comment was my favorite! Guberman is Ross Guberman, an inordinately successful legal-writing guy, and an email buddy.

Feedback that Raised Questions

Here’s some feedback that didn’t relate so much to the quality of the seminar but instead raised important questions about how, if at all, the participants could make use of what was discussed in the seminar:

This was a very useful program. However, unless partners agree with what was taught, we will not be able to implement many of the suggestions.

At every seminar, this is the elephant in the room. It’s why I suggest that a partner or two attend, but even that only goes so far towards addressing the issue, as each partner will likely have their own preferences.

Here’s what I tell associates: Ascertain how open any given partner is to clearer and more effective drafting. If you’re working for someone who’s open to change, you can discuss with them your ideas for doing things differently. If he or she is a stickler for tradition, then you’ll have to forget about using MSCD-compliant language. But even then, your MSCD-derived knowledge will be of use—in reviewing traditional language, you’ll be able to distinguish what’s harmless from what’s pernicious. And as you become more senior, you’ll have increasing discretion to draft as you see fit. For more on these issues, see this September 2006 post.

[His idiosyncracies] are so different than what is normally used that applying them would actually take more client time than is necessary. It would be a waste to employ many of his suggestions because they would either be changed by partners or the other side. It is much more efficient in a law firm to draft something (even if wordy) the way that everyone expects. It will avoid lengthy markups and unnecessary fights with the other side over things that don’t really matter. No one is going to sue someone over where the definitions show up in an agreement.

A few points: First, see the previous comment. Second, as I noted in the immediately preceding post, I work within the prevailing idiom; I don’t think I’m anyone’s idea of a radical. Third, as also noted in that post, it’s standard deal etiquette that you stick with the drafter’s language unless you have good reason for asking for a change. Fourth, I’m uncertain about the notion that if everyone agrees on certain language, it doesn’t matter if it’s suboptimal. And fifth, clear drafting is about more than avoiding litigation—it’s also about making a document easier to read and easier to use.

Not-So-Positive Feedback

Of course, I paid particular attention to the the less positive comments. Here are the most pertinent ones, with my commentary.

I expected a bit less about “clean/lean writing” and more about the substance of drafting a contract.

MSCD, and this seminar, are about how to say whatever you want to say in a contract. And I’m not sure what the commenter meant by “substance.” The substance of franchise agreements? Security agreements? Prenuptial agreements? Boilerplate? The commenter may have had in mind the structure of M&A contracts—that’s a different seminar.

It would have been great if he spent more time on the pitfalls of drafting language (obligations, conditions, performance) and less on the technical part of putting together an agreement.

This commenter is referring to my discussion of the categories of contract language. I agree that this is the single most important topic, but we spent about 40 minutes on it out of the 2 hours and 45 minutes of instruction. If I were to devote more time to it, it would have been hard to describe the seminar as a general overview.

Mr. Adams is a bit doctrinaire in his approach. I disagreed with several of his stylistic choices and “rules.”

See this November 2008 blog post.

The speaker had a difficult time keeping my attention. He is obviously an expert in the subject, but seemed a bit too “in the clouds” or in the “ivory tower” rather than giving day-to-day advice to attorneys drafting documents.

Jeepers! It’s been a while since someone suggested I was “ivory tower.” More generally, as I noted in this July 2008 post about my public seminars, I’ve come to accept that any group may well contain someone who’s not going to be satisfied with what I have to offer.

I wonder whether we are making full use of the talent we have in-house. I suspect that [name] and [name] or a number of others could have provided a contract drafting seminar that would have compared very favorably with this presentation and would have been talored to the firm’s needs and expectations.

Sure, anyone who has thoroughly digested MSCD could give this seminar. For example, Larry Bell of Benesch has used MSCD in his training program for their associates. But generally partner presentations on contract drafting don’t deal with contract language but instead focus on miscellanous structural and substantive issues in drafting M&A contracts. For more on this, see this article.

And if, as mentioned above, partners generally have their own preferences when it comes to contract language, I’m not sure one can speak of a law firm’s “needs and expectations” in that department. For example, I have yet to encounter a law firm with anything resembling a drafting “house style.”

Even in those instances where my views differ from those of any of the above commenters, the customer is always right. I’ll bear these comments in mind for purposes of future seminars.

Customising Law-Firm Seminars

I’ll close with a further comment from the professional development manager:

Because our firm is used to writing contracts a certain way, what I thought might be beneficial to you as the expert and presenter, is to have a writing assessment before your presentation. This can be done either through participants’ writing samples being sent to you and critiqued and using them in your presentation, or interviewing the key partners at the firm to ask them how they have done contracts in the past. You are the expert in the field and it would tailor your presentation to the specific firm you are presenting at and/or consulting at.

This is a great suggestion, but as I mentioned above, the partners likely have their own preferences. And often enough, the drafter simply goes with the usages in whatever contract model is being used. That means I’d just be assessing a mish-mash of drafting styles. In-house seminars at companies are a different matter, as companies tend to have a limited number of templates for commercial contracts. Those templates constitute a limited set of materials that I can usefully critique.

I could imagine critiquing associates’ work sometime after the seminar, once they’ve had a chance to implement some of the things we discussed. Each participant could send me a draft contract; I’d review it, mark it with Word comments, and send it back; then the participant and I would discuss my markup over the phone. But that would be a time-consuming process with a separate price tag.

I give with West Legalworks a public version of my “Contract Drafting—Language and Layout” seminar; click here for information about the seminars scheduled for the first half of 2009. A notable characteristic of my West Legalworks seminars thus far is that only a modest proportion of the participants have come from law firms. (My seminars in Canada are a different story.)

Here are some possible explanations:

• Maybe many firms feel that they don’t need outside help in training their associates in contract drafting, a notion I considered in this article in Lawyers Weekly.
• Maybe the pressures of work make it difficult to spend a day outside the office, particularly when in-house CLE presentations allow you to meet your CLE requirements.
• Maybe firms mistakenly feel they can get the same training from other outside providers (see this blog post).
• Maybe cost is a factor.
• Or maybe lawyers in private practice think their contract drafting is already more than adequate, something I took issue with in my recent National Law Journal op-ed piece.

Whatever the explanation, I’d like to encourage more law-firm lawyers to attend my seminars—when one’s discussing how to effect change in contract drafting, it’s nice to have everyone at the table.

So to that end, West Legalworks is offering members of the Section of Business Law a 20% discount on the registration fee for my seminars. To take advantage of it, register for my seminars by going to the registration page of the West Legalwork website—click here to do so. At checkout, enter the code ABABusLaw20, then click ”Apply.”