That raises a general question: Do you ever consult litigators when drafting? Do you think it adds value to do so?

It would seem sensible to consult litigators in this manner. But as there seems to be little consensus among litigators when it comes to dispute-resolution strategies, you might get all sorts of advice of uncertain reliability.

The title says it all: “Litigators Losing Love of Arbitration Argue for Trials.” But what caught my eye was the suggestions made by those interviewed for the article regarding how you can attempt to limit any downside to arbitration by addressing certain issues in the arbitration provisions:

• require a nonjury trial in the event of a dispute, or at least specify a certain jurisdiction, preferably in federal court
• specify the number of hours or days each side will get to present their case
• limit the number of depositions each side is allowed, when documents should be turned over, and how many days of testimony there should be
• specify that the losing party pays for the other side’s costs

These suggestions serve as a reminder that whatever arbitration clause you use—the AAA standard arbitration clause, my redraft of it (see this PDF of my article on the subject), or something else—commentators on arbitration generally recommend that you supplement it.

But don’t expect unanimity on that score. One of those interviewed for Passarella’s article said that he doesn’t think it’s a good idea for clients to tailor their arbitration clauses to set some ground rules.

And don’t expect consensus on the pros and cons of arbitration. I’ve seen other articles suggesting that arbitration is becoming more trouble than it’s worth; see for example this 2007 New York Law Journal article.  But I also recall seeing this more-upbeat 2006 article from the Daily Business Review.

As far as I can tell, no law school in the United States co-exists in a university along with an academic law department. If a university has a law school, every professor of law is in the law school.

We should reconsider this model. A different approach is for universities to have both a professional law school and an academic law department.

Under this approach, the professional school would be staffed by instructors whose job is to teach legal skills to lawyers-in-training. Instructors would not be expected to write books or articles. Instead, they would bring expertise in teaching practical skills.

Mazzone’s proposal has come in for some snark at the hands of Legal Blog Watch and Above the Law. For the heck of it, here’s my take:

Far from being unique to law schools, the tension between teaching and research is endemic in higher education. Given that it’s something that universities wrestle with too, I find simplistic Mazzone’s notion of grafting onto an amenable university the theoretical side of law school.

And creating a wall between theory and practice would likely encourage the less-desirable traits in each sphere:

As regards theory, topics that are the subject of faculty research have some grounding, however remote, in how law operates in society. Absolving research academics from routinely having to deal with ugly practical realities would likely render the fruit of their research even more sterile than it currently is.

As regards practice, leaving the training side of law school to “instructors” would institutionalize the two-cultures divide that you already see in law schools. (I’m a member of Penn Law’s adjunct faculty and I teach a “practical” topic, so I must be doubly ignoble.) Leaving training to second-class-citizen instructors would perhaps make it more likely that a given training program merely recycles the stale conventional wisdom.

So research and training would both benefit from cross-pollination between theory’s broader perspective and practice’s focus on expediency.

A related December 2009 blog post: Practitioners and Scholarship: Oil and Water?

But it can also be surplussage, in that if something is stated as an obligation, then necessarily it’s mandatory. That’s why I think mandatory can be omitted from the following examples:

The parties agree that all claims, disputes or controversies arising out of or relating to this Agreement that do not involve an action brought by a third party against either party shall be resolved and determined exclusively under mandatory mediation and arbitration procedures [read in accordance with this section 13].

In addition to the Scheduled Payments set forth in this Note, Borrowers will make each mandatory prepayment [read prepayment] of the principal of this Note required by the Credit Agreement, including, without limitation, the mandatory prepayments [read prepayments] of the principal of this Note in the form of Excess Cash Flow Payments in the manner and to the extent set forth in the Credit Agreement.

So you might want to think for a moment before using mandatory.

To commoditize drafting, you need optimal technology—in ContractExpress, I’ve certainly got that. And you need a rigorous “house style” for your contract language—got that too.

But you also need questionnaires and preloaded contract language that reflect state-of-the-art industry practice and an up-to-date understanding of the law. I’m no expert in specific types of transactions. And even if I were, I certainly wouldn’t want to rely exclusively on my own judgment. That’s why Koncision CA will be constituting editorial boards. I’m currently putting together two together.

Product-Line Editorial Board

One is the editorial board that will be assisting me with our first product, a line of confidentiality agreement templates. This board will have seven members—one from academia, three from company law departments, and three from law firms. No heavy lifting will be involved—instead, the editorial board will spot issues, review outlines, and help determine the scope of this product.

Those who have already agreed to serve on this editorial board are accomplished lawyers with impressive credentials—I’m delighted that I’ll have a chance to work with them. If you have considerable experience dealing with issues relating to confidentiality agreements and think you might want to serve on this editorial board, or if you wish to recommend someone, send me an email.

International Editorial Board

I’m determined that Koncision CA’s customer base will be international rather than purely U.S.-based. But for that to happen, our products have to be formulated with international users in mind. To that end, all our products will be scrutinized by an editorial board composed of lawyers experienced in the law of other jurisdications and in cross-border transactions. Which other jurisctions? Perhaps Europe, China, Japan, the Middle East, South America, and common-law jurisdictions outside the U.S. (England, Canada, Australia). If you’d like to be considered for this editorial board, or if you wish to recommend someone, send me an email.

• Each questionnaire will contain annotations explaining the issues involved in making a given selection.
• The questionnaires will reflect the principal differences among jurisdictions. This feature will doubtless expand over time.
• All contract language will comply with MSCD.
• The approach will be modular, so that, for example, the governing-law provision in one contract will use the same language as the governing-law provision in another contract, except to the extent the transaction requires otherwise.
• I plan that users will have the option of having the output documented annotated with Word comments, for example to explain to a client key features of the draft.
• I have in mind establishing an NDA “benchmark”—a version that can be used for comparison. A user who generates an NDA can distribute a version marked to show changes from the benchmark. If a reader is familiar with the benchmark, they would be able to assess the new NDA much more quickly than they would otherwise. Over time, this feature should save reviewers lots of time—reviewing NDA’s is probably even more of a nuisance than drafting them.
• Users will be offered the choice of subscribing or paying a fee for a single use. On the assumption that one-time users are looking to create their own template instead of using Koncision CA on an ongoing basis, the single-use fee will incorporate a license allowing you to copy and reuse the language in the contract you create.
• We’ll offer licenses to individuals and to organizations.
• Users will be able to track the history of a given template, to see how the questionnaire and the underlying contract language have been adjusted over time.
• I plan on using kiiac (see this March 2009 blog post) to help make sense of the precedent contracts that we’ll be reviewing.

If you have any suggestions or requests, I’d be delighted to hear them. What would it take for you to use Koncision CA?

I’m pleased to announce that I’m partnering with Business Integrity, developer of ContractExpress document-assembly software, to develop Koncision Contract Automation, an online subscription-based service that will make available to lawyers document-assembly templates for business contracts. We’ll be launching our first product, a line of confidentiality agreement templates, in the first quarter of 2011.

This development won’t come as a surprise to longtime readers of this blog, as I’ve certainly dropped enough hints that it’s what I was aiming to do. It’s why I started writing about contract language in the first place. I’m very excited.

The Koncision website is currently a placeholder. You can expect to see a real website, complete with a blog or two, in a couple of months.

I’m posting two other items today relating to Koncision CA. This one is about the editorial boards I’m putting together. And this one is about some features that I’m proposing to incorporate in Koncision CA.

And below is Business Integrity’s press release.

August 20, 2010. For immediate release.

Business Integrity partnering with contract-drafting expert Ken Adams to develop Koncision Contract Automation

NEW YORK—Business Integrity, Inc. has announced that it is partnering with Ken Adams, the leading expert in clear and effective contract language, to develop Koncision Contract Automation, an online subscription-based service that will make available to lawyers document-assembly templates for business contracts. It will be powered by ContractExpress, the document-assembly software developed by Business Integrity.

The first product offered by Koncision CA will be confidentiality agreements, also known as nondisclosure agreements, or NDAs. Because NDAs are the most prevalent sort of business contract, the number of potential users of Koncision CA at law firms and company law departments, both in the U.S. and internationally, is vast.

The aim is to expand Koncision CA’s library of templates by progressively adding other kinds of contracts.

To automate contract drafting, you need both sophisticated and intuitive technology and rigorous contract language. Koncision CA will be the first to offer that combination—ContractExpress is the market-leading document-assembly software and Ken Adams is author of A Manual of Style for Contract Drafting, the first and only comprehensive set of guidelines for modern contract language.

Koncision CA will appoint subject-matter experts to an editorial board for each kind of contract that it offers, and it will use a full range of networking tools to solicit input from users.

Tim Allen, who manages Business Integrity’s operations in North America, said, “We’re delighted to be involved in developing Koncision CA. We expect it to be a breakthrough in making available to transactional lawyers the efficiencies offered by information technology.

Allen added, “No one is better placed than Ken Adams to oversee Koncision CA’s content—he’s done more than anyone else to make contract drafting a rule-driven discipline. Koncision CA unites two top brands—ContractExpress and Ken Adams.”

Ken Adams said, “I’m pleased to be supported in this venture by Business Integrity. For one thing, ContractExpress provides the perfect platform. But beyond that, I’ve greatly enjoyed collaborating with Tim Allen and his colleagues, and we’ve long shared a vision of the best way to draft contracts.

Koncision CA’s NDA template library will be launched in the first quarter of 2011. If you would like Koncision CA to inform you of developments, go to www.koncision.com and join the mailing list.

For more information about Koncision CA, contact Ken Adams at kadams@koncision.com or Tim Allen at tim.allen@business-integrity.com.

More About Business Integrity

Business Integrity develops and markets the ContractExpress family of online document assembly products – for intranet, for extranet, for SharePoint, and now for the Cloud. Business Integrity has an impressive client list of leading law firms and corporations in the US, UK and internationally, which use ContractExpress to reduce the cost and elapsed time required to produce standard contracts and to enable lawyers to focus on high value non-standard contracts. The company was founded in 2001, and is privately held with offices in New York and London. Business Integrity customers include Microsoft, AXA, PepsiCo, Amazon, McAfee, Cisco Systems, Christies, Cadence, Logitech, Henkel Corporation, Allen & Overy, Clifford Chance, Latham & Watkins, Linklaters, Littler Mendelson, Wilson Sonsini, and Perkins Coie, Poyner Spruill, Stikeman Elliot, and Borden Ladner Gervais. For more information, please visit business-integrity.com.

More About Ken Adams

According to the Canadian periodical The Lawyers Weekly, “In the world of contract drafting, Ken Adams is the guru.” His book A Manual of Style for Contract Drafting (ABA 2d ed. 2008) is widely used throughout the legal profession. He gives seminars in the U.S., Canada, and internationally, acts as a consultant and expert witness, and is a lecturer at the University of Pennsylvania Law School. As part of its “Legal Rebels” project, in 2009 the ABA Journal, the magazine of the American Bar Association, named Ken one of fifty leading innovators in the legal profession. He also maintains a blog at www.adamsdrafting.com; the ABA Journal included it in its 2009 “Blawg 100”—its list of the hundred best law blogs.

In my cloistered way, I pay real attention only when the discussion touches on contract drafting. And here’s what Peter had to say on that score:

In legal practice, however, it is only the quality of the words that matter. Whether contract language originated with the lawyer who drafted the contract or a paragraph in a brief explaining a line of authority relevant to the brief’s argument was cut-and-pasted from a brief the lawyer who submitted the brief found online doesn’t matter. What matters is the effect of the words themselves. And, in fact, lawyers almost always begin drafting contracts by cannibalizing other contracts and forms. Yet they never cite to or otherwise acknowledge those sources. There is no reason for them to do so. And, as the passage from Hyde above makes clear, judges cut-and-paste from lawyers’ briefs. In fact, the entire arena of legal writing in practice is rife with unacknowledged borrowing.

And of course it’s no sin. That’s the point.

I added the following comment to Peter’s post:

To discuss contract drafting in the same context as briefs and opinions is to compare apples and oranges. In mainstream drafting, copying-and-pasting from other contracts is certainly no sin. But that’s not because unauthorized copying is OK. Instead, it’s because everyone is copying from a common pool of contract verbiage that they tweak to suit their own purposes. It can’t be attributed to a single source, so there’s no one to provide consent for copying. And no one is in a position to claim that they’ve been harmed by the copying.

But if you invest resources in preparing contract language that improves on the dysfunction of mainstream drafting, that work would be entitled to copyright protection. And you’d likely be none too pleased if someone took the liberty of copying it wholesale.

I discuss these issues in my 2006 New York Law Journal article “Copyright and the Contract Drafter.” A PDF copy is available at http://www.adamsdrafting.com/downloads/Copyright-NYLJ-8.23.06.pdf.

Pardon me if I missed a blog discussion on e-signature (have you had one?), but recently a bunch of companies have requested that we sign our contracts with them using e-signature through a company called EchoSign.

Nice idea in principle, but I have a three issues.

First, I think that it’s poor etiquette for someone to e-sign a contract and process it through Echosign without the other party’s consent. For example, this morning I received an email request that I sign an unspecified document, and when I followed the link to my surprise I found, residing on EchoSign’s server, a contract that I had drafted and regarded as confidential. I was not pleased.

Second, how secure and dependable are services such as EchoSign? Should they be reserved for low-value transactions? Should any contract that contains confidential information be signed with actual signatures only? As an attorney for a publicly traded company in the pharmaceuticals industry, I expect that I’d have to jump through a series of hoops if I wanted to implement a signature-automation service (written statement of purpose, pre-qualification audit, annual review).

And third, if we elect to remain in the Stone Age, how about stating explicitly in a contract that it will be enforceable only if each party signs using a manuscript signature? (I’m on the point of including such a provision in my contracts, as I don’t want to see another of my documents on EchoSign’s servers.)

I’d be interested to know your thoughts.

I have in fact written about EchoSign, in this May 2007 blog post. I mentioned other vendors in this April 2008 post and this May 2010 post. But given the nature of my work, I don’t have occasion to use signature automation, so I’ll let others take a first crack at responding to Fitz.

Aside from causing me to note that it was full of sensible advice, Nancy and Bret’s article prompted two thoughts. First, many of the overworked law-department people who read it might say to themselves, Gee, is that all we have to do? In my spare time, I’ll also clean the Augean stables!

And second, innovation is easier if a goal can be broken down into specific steps. It’s hard to argue with the notion of using “[s]implified standard contract language that includes more ‘plain English’ and less ‘legalese.’” (Although I would quibble that “simplified” is perhaps not the best word to use, as it can be understood to mean “dumbed down.” And for the same reason, in these parts we refer to “standard English” rather than “plain English.”) But anyone inclined to follow this advice would be faced with the question, How do we go about doing that?

Here’s how: First, you adopt a house style that recommends contract usages and layout. It would be hopeless to try to create a full-blown manual of style of your own. I humbly suggest that you piggy-back off of MSCD. I wrote about that in this July 2009 blog post.

Then you train your personnel in using the house style, and you redraft your templates to conform with the house style. And if the deal volume warrants it, you implement a document-assembly system to automate the drafting process.

It sounds like a lot, and it is. But the main obstacle is cultural—getting those in charge to conduct an honest assessment of the costs of hacking at mediocre templates and the costs and benefits of doing things differently.