I’m gearing up for the fall seminar season. Here are the public “Drafting Clearer Contracts” seminars I’ll be giving through the end of the year:
- Boston, MA, September 15 (Hey, Bingham associates—it’s being held in your building!)
- Minneapolis, MN, October 12
- Washington, D.C., October 25
- New York, NY, November 2
- Toronto, ON, November 16
- Santa Clara, CA, December 8
I hope to see some of you at these sessions.
I’ve also been looking over the feedback from the first part of the year. Most participants found the seminar worthwhile, giving feedback that’s consistent with the testimonials on this page [link no longer available].
But I’ve come to expect that half the time, someone will leave a seminar disgruntled. I’ve found it instructive to examine the feedback from any such unhappy camper, to see how I might win over anyone who comes to future seminars prepared to have a similar reaction.
With that in mind, here’s the gist of what one unhappy (and anonymous) participant had to say, along with how I might have responded, had I known that participant’s name:
Adams is a rebel, so following his advice is risky: Sure, many guidelines in MSCD run counter to the conventional wisdom. But that doesn’t increase risk—instead, following MSCD‘s recommendations allows you to reduce risk, in that you’re drafting clearly, rather than using opaque traditional language and relying courts to sort out any confusion.
I wouldn’t be able to implement the changes Adams recommends: The only obstacles to making the changes I recommend are lack of time and lack of authority. If you find yourself drafting contracts for a traditionalist, then of course you have to give them what they want. But in that situation, the MSCD approach would still add value—you’d focus on those contexts where a traditional usage could pose real problems, and you’d let slide other infelicities.
Adams isn’t into “plain language”: Sure, I’m a “plain language” guy. But I prefer not to use that label, because in some people’s minds it’s associated with the movement to simplify consumer documents, rather than business contracts. Instead, I refer to using “standard English.”
The seminar was too basic: What are you looking for? This seminar address how to say clearly and efficiently whatever you want to say in a contract. As such, it’s suitable for all levels of experience, because much of what I have to say comes as a surprise to even experienced drafters. Sure, we cover some basic stuff—that’s because drafters get a lot of basic stuff wrong. But if you’re looking for advice on substantive matters—how to handle disclaimer of warranties, what to put in an arbitration provision, etc.—this isn’t the seminar for you.
In responding to questions from participants, Adams shoots from the hip and is dismissive: When I respond to questions and comments from participants, I’m under two constraints. First, usually I can’t devote much time to a given question or comment. And second, the foundation of my approach to contract language is that for any given drafting goal, there will be one most efficient approach and a bunch of also-rans, and nothing is gained by my mollycoddling anyone. But evidently to some people I come across as abrupt or flip. That’s something I’ll continue to work on.
Adams is arrogant: As sad as it might seem, studying the building blocks of contract language is my grand passion. I try to share with seminar participants some of that passion—if I didn’t, things would get dull pretty quickly for all concerned. And sure, I’m no shrinking violet. So far my seminar persona has worked out fine, but I’ll keep an eye out for signs of bumptiousness.
Well, I have to say, regardless of style issues, I generally find that you have a extremely logical approach worthy of our profession. The sense I have from reading your blog regularly (and the comments) is that when people try and disagree with you, they usually don’t marshall their arguments with as much evidence as you present because you spend so much time thinking through these kinds of drafting issues. I’m sure they are a bit intimidated by your thoughtful contentions, resulting in their negative feedback. While we all, of course, need to constantly improve our level of diplomacy (and kudos to you for being open to that issue), I think most criticisms launched in your direction are due to you bucking the conventional drafting approach. Since that approach increases ambiguity and the likelihood of contract disputes, and, in doing so, reduces client value, I’m glad you’ll continue to be passionate about clarity and brevity.
In this vein, I have a blog post about how overly expansive dispute resolution and arbitration clauses do not serve clients well here: http://www.whichdraft.com/howto/?p=241
Hello, Ken –
I have attended your seminar, so has my assistant, and I use MSCD as the text for my law school course on contracts drafting. What people fail to realize, and I think that you grasp this point, is that you must have a certain level of confidence/arrogance/control to effectively stand up in front of people and offer a logical alternative to so-called “tried and true” practice. If you are mealy-mouthed, it just isn’t going to get any traction, and everyone’s time (including yours) would be wasted.
I would like to see “Ken v.2, Advanced” for more experienced drafters that would perhaps dig into substantive issues of law and drafting advice covering issues across a spectrum of agreement types. (I know, I know… I am probably still getting some of the basic stuff wrong!)
Take care,
FITZ
You can’t please everyone, particularly for something as practitioner-focused as contract drafting, where everyone brings their own, diverse experiences to the seminar. Sometimes, there is an awkward sod in the room. It’s a fact of life. What matters is the average score on the feedback forms. 4.5 out of 5 is fantastic. Anything over 4 is great.
Most of our courses include practical exercises. Most people enjoy doing the exercises. But I have had one person walk out of the seminar because he was asked to do an exercise. Ever since, I have introduced the exercises with a reassuring statement that it is not an exam, and people are not being judged, it is just a way of discussing the points previously taught.
My favourite recently was a comment on a feedback form for what was generally praised as a useful course. The comment was to the effect that the course was at too basic a level, but that was inevitable as the speakers lacked the ability to teach anything more advanced! This was after I had spent hours making a very dry subject as interesting as I could. I suspect the commenter was used to making anonymous comments on the internet!