The other day, I was walking down the road when I was waylaid by two longtime readers, Chris Lemens and A. Wright Burke. They stuck a hood over my head and hauled me behind the bicycle sheds. They then proceeded to thrash me. I think Chris wielded a shillelagh, whereas A. Wright Burke, despite his higher-education trappings (M. Phil. and all), preferred a round-bodied sap. All the while, Chris berated me for my clumsy indemnification language, and A. Wright Burke made it clear that he would inflict on me a force majeure event that I’d remember.
Or at least that’s what it felt like. The results are on display in this post on my force majeure language and this post on my indemnification language. All I can say is that I’m a better man for it!
But this raises an old question: If I’m so obviously fallible, what kind of a sorry excuse for an expert am I?
That’s something I explored last year in this post in connection with my analysis of a kind of ambiguity. And my response this time around is essentially the same.
Deal provisions don’t spring, fully formed and immaculate, from anyone’s brain. Writing is different from editing: every writer, no matter how accomplished, would benefit from an editor, because in the act of writing you lose the perspective required of an editor. And that’s particularly the case when you’re dealing with contract prose. So I gratefully accept the licks administered by my readers.
Indeed, perhaps what qualifies me for my self-appointed task is that I have sufficient semantic acuity, and sufficient zeal, to take a crack at different provisions, digest the critiques offered, and come up with something better, and do so repeatedly.
Thank you sir, may I have another!
I believe it’s just more proof of The Wisdom of Crowds.
Brian Rogers tested the idea on Quora when he asked What’s the best anti-assignment provision in a contract ever? The wisdom of the crowd there is constrained to only up-voting the best of the submissions.
Here, however, when you post a particular contract provision, the crowd is able to comment on the whole provision or, as happens more often, on particular parts of the provision. The result is that the wisdom of the crowd results in making a great provision even better.
The wisdom of the crowd is what led Chris Murphy and me to create Lawful.ly. Although Lawful.ly may not have a non-disclosure agreement as perfect as Koncision’s NDA, it will–through the wisdom of the crowd–offer an NDA better than the thousands of NDAs scattered about on the internet.
Maybe the wisdom of the crowd is softening you up a little? :-)
Thanks for reminding me of this angle! I’ve indeed said elsewhere, including in this post, that pure crowdsourcing of contract language is never going to work. But if you have an editor with sufficient credentials and credibility to attract comments, digest them, and offer a result that’s reliable and authoritative, sure.
Ken:
And now you have a story to share with clients to show how you empathize when they are on the receiving end of an analysis like that in MSCD Appendix 1-B (which is a Lucern hammer compared to the shillelagh of my post)!
Chris
Lucern hammer: http://en.wikipedia.org/wiki/Lucerne_hammer
You win the obscure-weaponry prize—I won’t attempt to top it!