Instead, I’ve moved my online base to www.koncision.com, the home of my new venture, Koncision Contract Automation. Part of that site is my new blog, The Koncise Drafter.

I go into greater detail in the inaugural post on the new blog. I won’t get maudlin, as I hope you’ll join me at The Koncise Drafter. See you there!

I subsequently figured out that law-firm KM people were too busy trying to avoid utter irrelevance. And since then KM has lost whatever buzz it had. The spotlight has moved on—currently it’s trained on “social media.”

If you ever thought the notion of KM made sense, I have some depressing reading for you: this post by Greg Lambert on 3 Geeks and a Law Blog. In it, Greg shares some thoughts prompted by a recent KM conference, leading him to wonder “if KM just needs to be scrapped at law firms altogether.”

What caught my attention was one of the comments—presumably offered by a panel member—that Greg says he heard at the conference:

When asked about “who” creates the documentation behind a firm’s model documents resource, the answer was that this would be a good opportunity for those in KM who were former practicing attorneys. (Translated: “You’ll need to have someone in KM do this, because no one else in the firm will.”)

I agree with Greg—if your attorneys play no part in your template initiative, that doesn’t bode well. But law firms are ill-suited to implementing and maintaining a rigorous template initiative, so benign neglect may be the best that you can expect. (For more on that, see this October 2009 blog post.)

But there are exceptions. Wilson Sonsini comes to mind; see this April 2009 blog post.

Aside from issues that relate specifically to law-firm template initiatives, a broader existential problem for KM is that knowledge, aka information, is increasingly a commodity, and the real action is in applying information to the facts. That’s why law firms are increasingly outsourcing the KM function to vendors such as the Practical Law Company. And that’s where Koncision comes in.

In any event, I no longer seek out KM people at U.S. law firms. (As with so many other things, Canada is a different matter.)

But in the enforced idleness of a marathon weather-disrupted trip home, I summoned the following thoughts regarding the ACC annual meeting, presented as tweets that might have been:

• On the way to #ACCAM10. Traveller’s tip: For unencumbered travel, don’t bring w/ U 80 lbs of books to give away.
• Atlanta weather delays. Best way to appreciate size of Atlanta airport is to sprint from one end of C concourse to far end of D concourse.
• Have arrived at San Antonio Marriott Riverwalk. Happy to let bell hop manhandle books.
• Say hi to guys at Business Integrity booth. Enjoy pretending to be ContractExpress salesman; look forward to having Koncision booth someday.
• At hotel. Spend 30 secs admiring view so feel getting $$$ worth. Note uncanny resemblance to every Marriott room ever been in.
• Back at BI booth. Shawn Cheadle & Flo Pinigis (on my panel) drop by. Press copy MSCD on them whether they want it or not.
• Immune to charms of booth giveaways.
• Not inclined to mix business travel w/ sightseeing. But ashamed no plans to see Alamo.
• Quiet Mon. night & Tues. morning reviewing notes for panel.
• Room for contract-drafting panel size of airplane hangar. Surely some mistake! Maybe 400 people.
• Panel gathers; finally meet fourth member, Chris Koa.
• Mikes too low, so have to hunch, and need to talk right into them, so look like about to impart state secrets.
• Get thru session unscathed; end by saying have copies of MSCD to unload to true lovers of contract language.
• Scrum of people waiting at BI booth; 30 books gone in two minutes.
• Fun part of #ACCAM10 meeting is seeing contacts not met face2face, inc. David Cohen, Jeff Wheeler, Jim Brashear, and—gasp!—Jeff Carr.
• Started evening semi-crashing 1 party, then on to 2 others. Only disappointment = quality of margaritas downhill over course of evening.
• Nice having people introduce themselves, say how they enjoyed session, find MSCD useful.
• After final chat w/ Tim Allen of Business Integrity head off to airport much lighter than on arrival.
• More Atlanta weather delays! The usual chaos. Make it to Atlanta, then stuck.
• Down in tube station at midnite. Lost in supermarket. Need song about airport wee-hours anomie.
• Face-on-tray-table hardly = beauty sleep. Home after 23 hours.

© 2010 Kenneth A. Adams

You may copy and distribute without charge this publication’s table of contents, on condition that you include the above copyright notice in any copies.

You may not otherwise copy or distribute any part of this publication without the author’s permission, except as permitted by copyright law. This restriction applies not only to making paper copies for use by others but also to other forms of copying and distribution, including distributing this publication by email or by putting a copy online.

Direct any requests for permission to copy this publication to Kenneth A. Adams at [email address].

Copies of this book can be purchased at [URL] or by calling [phone number].

This represents a big improvement; I’m embarrassed to read the previous version!

Rather than list the various forms of legitimate copying that readers might engage in, I’m banking on those being covered by the carveout for copying permitted by copyright law.

I eliminated the unattractive “finger-wagging,” to use commenter Westmorlandia’s term. But I still say, albeit more gently, that improper copying doesn’t just mean running off photocopies.

I had contemplated saying “Restrictions against unauthorized copying are intended to ensure that authors and publishers are able to continue developing and distributing original works.” But it sounds a bit pious. And anyone who is unaware of the publishing facts of life is presumably not going to be swayed by a copyright notice.

I’ll be arriving in San Antonio on Monday afternoon. Aside from my panel duties, I’ll be attending some other sessions, roaming the halls, and hanging at booth 306 with Business Integrity, my technology partners in Koncision Contract Automation.

I’ll also be engaging in some guerilla marketing. I’m taking with me a bunch of copies of A Manual of Style for Contract Drafting, and sporadically on Monday and Tuesday I’ll be sending out Twitter updates saying that if you’re one of the first X people to find me at a given location and utter the specified magic words, I’ll thrust in your hands a free copy of MSCD.

But to receive those Twitter updates, you’ll have to follow my new Twitter username, @KonciseD. It has a lame hip-hop vibe that I’m sure will make my teenage daughter gag. It’s derived from the name of my soon-to-be blog, The Koncise Drafter. I’m switching my online identity from AdamsDrafting to Koncision, and this is the first step. I’ll be mothballing @AdamsDrafting, and I’ll be a bit more active on Twitter going forward.

So if you want to be in the running to get a free copy of MSCD, or if you want to continue to receive my Twitter updates, follow me by going to http://twitter.com/KonciseD and clicking on the “Follow” button.

GLOBAL firm Jones Day has poached Tony Wassaf from Allens Arthur Robinson and appointed him partner in the firm’s Sydney office.

The energy and resources specialist has more than 25 years experience in the sector and said he was keen to work for a firm that gave clients the best international expertise.

Sydney office partner in charge Chris Ahern said he was delighted Wassaf had joined the firm. “Tony has built an international reputation for his commercial focus, his ability to quickly identify issues and find solutions and his strength in contract drafting. He will help complement and enhance Jones Day’s world-wide standing in this vital economic area,” he said.

A big-firm partner being complimented on his contract drafting? I can’t recall ever having seen that in print. In the U.S., the general assumption seems to be that contract drafting is something you push as far down the food chain as possible. (See this March 2007 blog post for more about that.)

And on the same day as I saw that notice, someone who attended my Washington, D.C. seminar for West LegalEdcenter remarked how of all the lawyers around the world that he’s retained to work on his company’s contracts, the Australians were the sharpest.

So do Australians take their contract drafting especially seriously? Is the language of mainstream business contracts any less dysfunctional in Australia?

The final bit of text that I have to prepare is the copyright notice. Here’s what it would look like if I were to base it on West’s standard copyright notice:

Copyright © 2010 Kenneth A. Adams, All rights reserved.

Copyright law prohibits the reproduction or transmission in any form or by any means, whether mechanical, photographic or electronic, of any portion of this publication without the express permission of Kenneth A. Adams.

Kenneth A. Adams hereby consents to the copying of the Table of Contents ONLY of this publication for internal or personal use provided (1) copies of the Table of Contents are distributed at no cost, and (2) proper notice of copyright is affixed to each copy. This consent does not extend to any other kind of copying, such as copying any portion of this publication other than the Table of Contents for internal purposes, or for creating new collective works for resale.

All requests for permission to make copies of all or any part of this publication, other than the Table of Contents, should be addressed to:

But I can’t resist tinkering with prose. And given that The Structure of M&A Contracts will be available only as a PDF file, I thought it might be appropriate to have the copyright notice reflect the greater risk of illicit copying. So here’s what I came up with:

Copyright © 2010 Kenneth A. Adams

Copyright law prohibits you from reproducing or transmitting, whether by mechanical, photographic, or electronic means, any portion of this publication without the permission of Kenneth A. Adams.

Because this publication is available only as a Portable Document Format (PDF) file, it would be a simple matter for any purchaser to disseminate copies widely. But just as distributing photocopies of a book would violate copyright, it would be against the law for anyone who purchases this publication to forward it to anyone else without the copyright holder’s permission. And pilfering content makes it harder for authors and publishers to develop and distribute original works. This publication is readily available at a modest price—there’s no justification for illicit copying.

Kenneth A. Adams hereby consents to your copying and distributing free of charge this publication’s table of contents.

Direct any requests for permission to copy all or part of this publication (other than the table of contents) to Kenneth A. Adams. His contact information is as follows:

Would my version serve any purpose, or would I just sound like a scold?

By the way, I enjoyed omitting “All rights reserved” from my version. I always thought it sounded pointless; apparently I was right.

But it seems that I’m not the only one not writing reviews of legal texts, as opposed to reviews of general-interest or policy-based books about the law. No journal or blog reviewed the second edition of MSCD. And it has been years since I encountered in passing a review of any law book that I would be inclined to consult regularly. Of the few book reviews I do encounter, a large proportion are of the superficial “this is a useful contribution to the literature” variety.

As an objective test, I did an online search for recent book reviews in one likely outlet, the New York Law Journal. It yielded slim pickings.

There are of course Amazon reviews, but they hardly take up the slack.

A serious review written by someone knowledgeable in the field can be valuable. Relying on a legal text is necessarily a leap of faith, and most readers aren’t going to be in a good position to make an informed decision as to which voice they should heed in the clamorous marketplace of ideas. An informed review can reduce the amount of faith required of a reader.

So I think there would be a place for an online review of law books. It would be overseen by an energetic volunteer editor, and the reviews would be written by lawyers at law firms, company law departments, and law schools. Maybe two or three lawyers could write separate reviews of a given text, if it were significant enough.

I’m aware that dwindling reader interest and evaporating advertising revenues have killed off almost all book-review sections in newspapers. But that trend needn’t apply to a review of legal texts: Nothing constrains a general-interest reader from casting aside a novel in favor of television, social media, or browsing at the vast online buffet, but lawyers will always need legal texts, whether in print or online.

This isn’t an issue I have any experience with, as I no longer do deals, but the idea of locking Word documents strikes me as beyond pointless: It can be easily circumvented. It’s vaguely insulting. Document-comparison software provides greater protection and is more discreet. (For more about document comparison, see this July 2010 blog post.) And the idea of your average law firm or law department locking their documents to protect their copyright is, on several levels, outlandish.

Here’s Jim’s initial salvo, a post to a discussion forum of the Association of Corporate Counsel:

I find it annoying and not very collaborative when opposing counsel tries to lock a Word document with a password in order to limit or track changes. (Same with sending PDF documents to discourage changes.)  As a public service I therefore present:

How To Unlock and Edit a Password Protected Word Document

This works with Word documents that have been password protected to track or prevent edits. It does not unlock Word documents that have a password that prevents opening the file.

• Open with Microsoft Office Word the password protected DOC or DOCX document
• In Word’s File menu, select “Save As” and save the document as an HTM formatted file, noting the saved file location
• Close the document in Word
• Find the saved HTM document file and right click the icon
• Select “Open With” and choose Wordpad
• In Wordpad, search for the text string <w:DocumentProtection
• Highlight and delete the entire line that begins with <w:DocumentProtection and the line directly underneath it that begins with <w:UnprotectPassword.  Make no other changes.
• In Wordpad’s File menu, “Save” the HTM file and exit Wordpad
• RIGHT click the HTM file icon and again select “Open With” but this time choose Microsoft Office Word
• The document is now unprotected, you can edit at will (with or without tracked changes)
• In Word’s File menu, select “Save As” and save the document with the .DOC or .DOCX format

Another friend of the blog, David Munn, general counsel of Pramata Corporation, chimed in:

There’s an even easier way to crack a “protected” Word document.

• Save the document to your hard drive or other location
• Open a new blank document in Word
• In Word 2007, in the Insert menu, select Object and the Select From File. (In Word 2003 I believe it’s simply Insert File from the Insert menu)
• Navigate to the original file and select it. The text of the original document will be inserted into your new document. The document is now unprotected, you can edit at will (with or without tracked changes).

The other lesson from this is that you should never rely on the “protection” in Office if you really need to protect a document.

Jim subsequently received an email from another general counsel:

Rather than make this a public debate, where I run the risk of apparently if not intentionally chastising you in front of our peers, who dismayingly seem, in large part, to agree with you, I find the efforts to subvert the locked document to be less than professional.

If the sender wants to ensure that no one edits the text, those wishes should be respected, if not as a basic matter of copyright law, than as a matter of professional courtesy.  How else can one protect oneself from our unscrupulous brethren who may make changes in a document that runs on for a hundred pages without identifying those edits, whether on purpose or unintentionally?

This kind of “trick” is exactly why laypeople hold us in such disrepute.

Jim responded directly to this email, but it also prompted him to post this follow-up comment on the ACC forum:

My post under this title prompted some interesting discussion about the state of etiquette in modern contract drafting. It seems we lack clear guidelines on aspects of appropriate behavior when sharing electronic copies of draft contracts.

There is a consensus that it is unprofessional to send a reply draft that is marked to show less than all of the changes from the prior draft – even when that inaccuracy is inadvertent (e.g., due to internal versioning problems). There is a perception that it is appropriate behavior for the commenter to provide an accurate, electronic redline draft. There is some debate about the appropriateness of sending an electronic copy that is password-protected so that opposing counsel is “forced” to show all changes.

Earlier posts have already demonstrated that password protecting Word documents is easily defeated and ineffective. Some commenters (publicly or privately) have criticized removing password protection as poor behavior. Other commenters opined that it is poor behavior to apply password protection in the first place.  This post examines those opposing viewpoints.

Attorneys in most, if not all, U.S. jurisdictions have an ethical obligation to ensure that their client’s confidential information is not disclosed to opposing counsel within metadata contained in Word documents. That hidden metadata can contain (depending on software versions and settings) internal versions of the same file, embedded comments, details of proposed changes, identities of persons who reviewed the document and more types of confidential information.

Microsoft provides online guidance about how to redact hidden metadata in Office documents, specific to each version of Office. See this linked white paper from Payne Consulting (which offers consulting services and metadata redaction software) for more information about what kind of information can be found in hidden metadata, and lawyers’ ethical obligations to redact metadata. http://www.payneconsulting.com/pub_books/white_papers/pdf/PayneJuly2006ArticleonMetadata.pdf

To my knowledge, metadata cannot be redacted from a password-protected Word document. That means reviewing counsel who use a password-protected Word document to send their client’s comments to opposing counsel must either (i) disclose whatever metadata is captured in the locked document and risk legal malpractice, or (ii) enter into the locked document only the final changes that the client wants to transmit to opposing counsel.

Many companies would, in their normal process of commenting on a draft agreement, route the electronic copy through various departments, with each inserting proposed changes, questions and embedded comments. The metadata in the resulting agreement can then be expunged, and a redline created by comparing the original to the “cleansed” final version. If the company cannot redact metadata from a locked document, then counsel would need to start from the original version of the locked draft and input into that version only the final changes that the client wants to transmit to opposing counsel. That seems inefficient.

The principal explanation I’ve heard for password protecting Word documents is that the originating counsel lacks confidence that opposing counsel will accurately track changes. There are ways to solve that perceived problem without locking the Word document with a password. Ronald Reagan often quoted the Russian proverb “trust but verify” and that is a good way to treat opposing counsel in contract drafting.

It is easy to use Word or commercially-available document comparison software (e.g., Workshare’s Worksite f/k/a DeltaView) to compare the reply draft from opposing counsel to your own last transmitted draft. Doing your own comparison does not create for opposing counsel the dilemma of either turning over their client’s confidential metadata or slowing down the drafting process. There are also opinions indicating that counsel who rely on opposing counsel’s redlined drafts may be committing legal malpractice and that they should instead do their own document comparison and complete read-through.

Another explanation I’ve heard for password protecting Word documents is that the originating counsel perceives they own the drafting process or the document, some even asserting a copyright.

Attempting to control the drafting process by controlling the electronic drafts was in vogue when I started in big firm practice in the early 1980s but has largely disappeared as electronic documents are now easily shared via email or portals. Contract drafts are now largely a professional collaboration. Many contracts even contain a provision stating that the contract is the product of joint drafting and therefore should not be interpreted against either party as the principal drafter.

Although it is theoretically possible for copyright to exist in a contract, the concept does not apply to the vast majority of contracts because they are not sufficiently creative or original. See Ken Adams’s discussion of contract copyright in this article. http://www.adamsdrafting.com/downloads/Copyright-NYLJ-8.23.06.pdf

Some have noted that reviewing counsel who receive a locked document can simply call the authoring counsel and request an unlocked version.  If the authoring counsel is willing to provide an unlocked version on request, then why make reviewing counsel ask for it? Some counsel or contract administrators send fax versions of documents, presumably to discourage comments. One can call and ask them for an electronic copy, too. As we are trying to define drafting etiquette, however, the question is, Why not send an unlocked electronic copy in the first place?