Before I published my post The Post-Truth Mindset and “Endeavours” Provisions (here), I ran a draft by one of my English readers. I found what he had to say particularly eloquent, so here it is, with my response. I welcome you to chime in.
You’re asking me to guess UK audience reaction, right? If you carry on doing the same thing (expressing forthright views on contract drafting that make uncomfortable reading for an audience that considers itself to have expertise), you will carry on getting the same results. You know that. Those same results are summarised in your piece. What reaction are you hoping to get?
They can’t burn you as a witch; they can’t get a judge to declare you are wrong; they can’t make you unwelcome in fashionable legal academic institutions. Most of all, they can’t have the debate in an arena where they cannot secure an obvious win but, worse, they might appear to lose. Better just to deny you the oxygen of publicity and have one less thing adding to the already-uncomfortable life of a transactional lawyer. This is a country where we trot out the mantra “technical competence is a given” so often that most lawyers don’t even perceive the need for critical appraisal. When applying for a new role in a law firm, most candidates are too scared to profess their technical skills in case the interviewer thinks they aren’t ‘commercial’ or ‘pragmatic’.
Have you read the work of Seth Godin? If you are miscalculating anything, it might be that your blogs make it hard for readers to identify the Ken Adams tribe. Where is the cohort, however small, where an ambitious reader can find the comfort and support of hanging out with ‘people like me’? An open-minded, intellectually-able, and enquiring lawyer in the UK will rarely come across peers who have read Ken Adams’ work and manifestly deploy it in their work. In an industry where partners have the power of career life and death, and where potential disrupters don’t pay big salaries, a young associate laden with student debts and discovering that their academic training hasn’t equipped them well for client work, is going to need to be a brave spirit to embrace MSCD.
I’m guessing that your most appreciative audience in the UK are folk like me who are independent, well-established and inclined to make a ruckus for a bit of sport. We have clients who enjoy watching us have a bit of mischief with ‘big-law’ practitioners who think they can overwhelm our clients with the sheer weight of their brand. Only a week ago, a combative exchange of views with another lawyer resulted in her telling me that she wouldn’t have this trouble if she were dealing with a magic-circle firm. Celebrity musicians can sing vacuous songs; populist politicians can mobilise bigots; big-name law firms can deploy language that defies objective analysis. The first physician who proclaimed germ-theory and the need to wash hands and surgical instruments was treated like a quack. You get the gist.
Write the piece anyway. Maybe write some other blogs to help people like us feel less lonely and outnumbered.
And here’s my response:
What reaction am I hoping to get? It’s not a matter of hope but of expectation. As you suggest, I expect that traditionalists won’t suddenly decide to join me in the marketplace of ideas.
So why do I bother? This weekend a commenter on LinkedIn attributed it to courage on my part. I appreciate the sentiment, but that’s not it. The only price I pay for sounding off is that those who ignore me will continue to ignore me. That doesn’t keep me awake at night.
Instead, I attribute my persistence to two factors. First, I get a kick out of patrolling the marketplace of ideas. But beyond that, I think that if I demonstrate the shortcomings in the conventional wisdom, it encourages people to try a different approach. Today’s post refers to “the English legal establishment,” but it isn’t the English legal establishment that drafts contracts, it’s a bunch of individuals. If you present individuals a choice between chaos and superstition, on the one hand, and a comprehensive set of guidelines, on the other, some will opt for the guidelines. It helps that with only a couple of exceptions, the recommendations in MSCD fly below the radar.
In this post I mention signs that MSCD is becoming accepted in the United States—becoming “the new orthodoxy,” a phrase I used in this 2014 post. Heck, being a fan of MSCD even got someone a job; see this 2017 post. One sign that it could meet with similar acceptance in the United Kingdom is that in given month, 7% of the 70,000 visitors to adamsdrafting.com are from the UK, behind only the United States, with 50%. On a per-capita basis, Canada is first, then the United States, then the UK.
And my stuff generates enough interest to justify my doing a seminar every year at UCL Faculty of Laws. (This year it’s on 5 November; go here for more information.) Heck, one of the “Magic Circle” law firms even hired me to give not one but two training sessions, although they might have been rather bewildered by what I had to say.
Of course, it’s pointless to think of MSCD becoming better known in the UK unless people can get hold of it. The print version is now available on Amazon at a price close to what the ABA charges (go here), so that might help. (There’s a Kindle version too.) And everyone who attends The Legal English Event in London on 1–2 November (information here) will receive a copy of MSCD at no extra cost; that should put a bunch more copies in circulation.
Beyond that, I welcome any ideas for speeding the process, so that invoking MSCD becomes commonplace rather than a curiosity, allowing you to have your cohort!
