I just received the following broadside from a reader:
You choose to use your blog to tout your own book and for self-validation. I certainly hope you are not deceiving yourself that your purpose is to foster discussion or refine your own body of knowledge. That’s fine, each to his own, I just wonder why you have the comments turned on. Because you so enjoy taking potshots at anyone who begs to disagree? That’s all you’ve done the rare times I have commented, you are abusive and demeaning—that’s why I use an alias, so if our paths ever cross you won’t be able to berate my stupidity in person.
Sad as it might seem, I’m passionate about contract language. And the marketplace of ideas involves having ideas do battle. And readers need to be entertained. And you can’t please all the people all the time. On the other hand, I want to encourage fruitful discussion.
Since last September, when I last revisited the issue of how I respond to comments, I’ve done my best to maintain an assertive-yet-civil tone, and periodically I’ll go back and tone down a response that could be construed as unduly feisty. Before the missive quoted above, since last September no one had complained. If you think I need to make any adjustments in this department—in other words, if in any of my blog posts or comments I come off as a jerk—please let me know.
I don't mix it up in the comments here too much, but I haven't seen anything from you that was impolite or rude. There isn't a long-term blogger out there that hasn't been trained, by experience, to be firm with commentators, since anything less than that quickly devolves into endless, rambling debates.
You can't please everyone. See, e.g., http://www.cynical-c.com/?cat=85
I read your blog consistently and I haven't seen anything from you that was impolite or rude either. I enjoy reading it and I hope you continue.
Ken, I hope we are a community of friends in this discussion, having far more in common than anything we disagree on. Anyone who reads this blog is likely to care about good contract drafting.
You asked me about the tone of your response to your last posting, and I thought it was perfect – asserting your point without ramming it home in an unpleasant way. Your answer certainly did not come across as abusive or demeaning.
I happen to disagree with the substance of your reply, by the way, in that I don’t think strict rules are necessary; we can live with strong recommendations. There we are – two different views. Does anything more need to be said?
I think you are right to keep monitoring the tone of your responses. You are in a powerful position as advocate, judge, jury and executioner of this blog, and what one person views as an entertainingly robust and feisty assertion another person may perceive as a demeaning put-down. It might be different if you were merely acting as advocate; however, as manager of the blog you have the final say, and I think this creates additional responsibilities.
From my own perspective, there are times when I would prefer this blog to be more of an open discussion, rather than be focussed so much on whether an idea complies with MSCD. There are, in my view, areas where disagreement is possible and healthy. For example, I think that some of your views are influenced by US law, US corporate legal practice and US linguistic usage, and aren’t so obviously right when looked at from outside the US. However, I entirely accept that it is your blog, and there is no right or wrong in how you should manage it. You are the one with the energy and vision to make the blog happen, and I am grateful for your investment of time in it.
With best wishes
Mark
Mark: Thanks for your comment. Regarding my response to your comment on my post about doing an online test, I've revised it to make my point clearer. It's not a matter of "rules," as that suggests imposing usages by fiat, which would be impossible.
And I remain steadfastly of the view that MSCD's recommendations apply in any jurisdiction where contracts are drafted in English. If you follow MSCD's recommendations, you'll articulate your meaning using standard English, instead of rolling the dice and relying on courts to breathe meaning into magic words. Very rarely a different set of rules applies. For example, for purposes of option contracts governed by Texas law, a sham recital of consideration will be enforceable. Whenever I encounter such an exception, I make a point of noting it.
But the bigger issue is that English practitioners and judges seem to be committed to a magic-words approach. Maybe I'll have the courage to do a blog post about the implications of that!
Ken
My view is that this blog is a valuable, educational and enjoyable resource. While I agree with Mark (for the reasons he gives) that not all the specific points made are indeed applicable to lawyers drafting contracts in the UK, subject to the laws of England and Wales, I do agree with Ken that the aim of good drafting is something that should not stop at the jurisdictional frontier.
There are times, though, when I have wanted to discuss something from a UK perspective but have felt constrained from doing so just because I hadn't read the relevant chapter in MSCD or a previous post in the blog's archive. However, I accept that some modicum of reading is more useful prior to commenting and have refrained from comment in those cases where I have not read these in advance.
It's your blog, Ken, and you do us all a great service in providing it. I'm delighted you wrote the book and I have shared my copy with co-workers. Why not promote something you believe in? You've never been anything but polite, while encouraging discussion. Imagine if you didn't have strong opinions — we're all entitled to them and I've never seen you disparage anyone for theirs.
I've been reading this blog for about three years and I don't think I've ever noticed Ken be anything but fair. The internet brings out a tendency in people to respond without thinking things through, but I’ve never seen Ken treat a comment in a way that made me raise my eyebrows.
This original poster could be having one over on you Ken. Alias said – "that’s why I use an alias, so if our paths ever cross you won’t be able to berate my stupidity in person." I doubt that a person who felt the need to defend themselves would admit that they are stupid.
You do dole out a fair bit a criticism, but that's part of the blog. So, Alias’ statement that you enjoy taking potshots is probably correct, but what lawyer doesn’t. However, you use discretion in your posts. I've seen you edit some of your comments to me and we both agreed to have one of our threads taken down because it was a bit uncivilized. If you check your wit then the blog is much less readable. Contract language is dull enough as-is.
Perhaps anon is simply jealous of your successful books – maybe a frustrated competitor! I guess you had better keep doing what you are doing …
What you do on this blog is great, Ken, but I am slightly closer to "Anon" in my view of your responses. Mark's final paragraph, I think, hits on one key issue. The argument in favor of a particular position on a drafting issue should always be something more than that the position conforms to your views in the MSCD. Separately, you are too dismissive, I believe, of responses that question your views on the basis of practical considerations in contact drafting and commercial negotiations. While I appreciate your elevation of the dialogue regarding contract drafting in many ways, your manner of responding to those opposing viewpoints often has struck me as dogmatic to a fault.
Damon: My approach is based on the notion that of the various ways to accomplish a given drafting goal, one will be more efficient than the others. I think I've proved that I’m more than willing to engage in debate, and I’ve happily fessed up to mistakes. If I stick to my guns on a given issue, it’s not because I’m “dogmatic”—it’s because I think I have the better argument.
And it’s rather difficult to defend myself against the charge of being dismissive of practical considerations. It’s counterproductive to deal in generalities—it would have been better to call me on something when I say it, so that I, and others, could respond. In the final paragraph of his comment, Mark made a specific point; it’s one that I’m familiar with, so I countered it. That’s the way it’s supposed to work.
I'm acutely aware that drafters often have to opt for the expedient rather than the ideal. But that doesn't mean that in making my recommendations I should too.
I recall that in a comment that formed the basis of a November 2009 blog post (https://www.adamsdrafting.com/2009/11/20/why-bother-learning-to-draft-contracts-more-clearly/), you suggested that most of what I do is of little practical significance. Based on that comment, and this one too, I gather that you don't have a problem with my tone or with specific recommendations that I make. Instead, I think you're questioning my entire approach.
Ken
What you do, I believe, is very useful. Neither my Nov 2009 post nor the one above was intended to suggest otherwise. By my Nov 2009 post, I simply hoped to highlight a general attitude among practicing firm attorneys because I believed, and still believe, that it would best answer your question in that case. Regarding the above post, my point is aimed less at your approach to contract drafting, which I respect and support, than at how I react when reading your responses to individual disagreements when they pop up on this blog. That is just my opinion, of course, and the other posts here demonstrate that many folks react more positively.