I used to be reticent about asking for feedback after giving an in-house seminar—heaven forbid that I should be a nuisance! But I now make a point of asking for such feedback. I’m acutely aware that my seminars are a mixture of bad news (Everything you know is wrong!) and good news (Here’s how to fix it!), and so it’s important for me to have a good sense of how my message is being received.
With that in mind, I’ve been mulling over the feedback from a three-hour “Contract Drafting—Language and Layout” seminar I gave late last year at a well-known mid-size Washington, D.C. law firm. On the off chance that any of you might find it of interest, here’s the gist of it.
But before you leap in, bear in mind that because this was an in-house seminar for mostly first- and second-year associates, it meant the audience was both captive and inexperienced. I find that makes for distinctive feedback.
Positive Feedback
The feeback was sent me by the professional development manager. I asked that she give me her thoughts, too, as she could be counted on to have a rather broader perspective than the participants. Her verdict:
You had a great impact here, a lot of partners were requesting your book after the presentation and were very interested in it.
As for the 18 participants, if I combine the responses to the various questions, 85% were strongly favorable or favorable, and the rest were neutral, apart from one outlier response to one of the questions. Below is a selection of the positive things they had to say.
Mr. Adams did a good job of making broad introductions to the drafting and style points covered in the manual. It was a well-organized and though-out presentation.
The book is great. I’m glad I got to take one with me. I think it will be a very handy reference.
The portion on kinds of language and how they function in a contract was incredible—especially seeing how a misplaced “shall” can really change the meaning of a provision.
He did a great job of picking out a few important but succinct points to cover in his presentation, without trying to cover everything in his book.
The presentation … demonstrated in a memorable way the problems of ambiguity that can arise from bad drafting habits.
The topic really applies in day-to-day lawyer life, and I think it was the perfect time to attend for 1st and 2nd year attorneys. It answered A LOT of the questions that I have wanted to ask before but, given project deadlines, felt that it would waste time to ask.
I thought he did a phenomenal job packing actual useful information into a tight time frame, and he often distilled the philosophy behind his choices into nuggets that could be useful in more than one situation in the future.
It was kind of like Guberman for contracts, and considering how great Guberman is, that’s a big compliment.
The final comment was my favorite! Guberman is Ross Guberman, an inordinately successful legal-writing guy, and an email buddy.
Feedback that Raised Questions
Here’s some feedback that didn’t relate so much to the quality of the seminar but instead raised important questions about how, if at all, the participants could make use of what was discussed in the seminar:
This was a very useful program. However, unless partners agree with what was taught, we will not be able to implement many of the suggestions.
At every seminar, this is the elephant in the room. It’s why I suggest that a partner or two attend, but even that only goes so far towards addressing the issue, as each partner will likely have their own preferences.
Here’s what I tell associates: Ascertain how open any given partner is to clearer and more effective drafting. If you’re working for someone who’s open to change, you can discuss with them your ideas for doing things differently. If he or she is a stickler for tradition, then you’ll have to forget about using MSCD-compliant language. But even then, your MSCD-derived knowledge will be of use—in reviewing traditional language, you’ll be able to distinguish what’s harmless from what’s pernicious. And as you become more senior, you’ll have increasing discretion to draft as you see fit. For more on these issues, see this September 2006 post.
[His idiosyncracies] are so different than what is normally used that applying them would actually take more client time than is necessary. It would be a waste to employ many of his suggestions because they would either be changed by partners or the other side. It is much more efficient in a law firm to draft something (even if wordy) the way that everyone expects. It will avoid lengthy markups and unnecessary fights with the other side over things that don’t really matter. No one is going to sue someone over where the definitions show up in an agreement.
A few points: First, see the previous comment. Second, as I noted in the immediately preceding post, I work within the prevailing idiom; I don’t think I’m anyone’s idea of a radical. Third, as also noted in that post, it’s standard deal etiquette that you stick with the drafter’s language unless you have good reason for asking for a change. Fourth, I’m uncertain about the notion that if everyone agrees on certain language, it doesn’t matter if it’s suboptimal. And fifth, clear drafting is about more than avoiding litigation—it’s also about making a document easier to read and easier to use.
Not-So-Positive Feedback
Of course, I paid particular attention to the the less positive comments. Here are the most pertinent ones, with my commentary.
I expected a bit less about “clean/lean writing” and more about the substance of drafting a contract.
MSCD, and this seminar, are about how to say whatever you want to say in a contract. And I’m not sure what the commenter meant by “substance.” The substance of franchise agreements? Security agreements? Prenuptial agreements? Boilerplate? The commenter may have had in mind the structure of M&A contracts—that’s a different seminar.
It would have been great if he spent more time on the pitfalls of drafting language (obligations, conditions, performance) and less on the technical part of putting together an agreement.
This commenter is referring to my discussion of the categories of contract language. I agree that this is the single most important topic, but we spent about 40 minutes on it out of the 2 hours and 45 minutes of instruction. If I were to devote more time to it, it would have been hard to describe the seminar as a general overview.
Mr. Adams is a bit doctrinaire in his approach. I disagreed with several of his stylistic choices and “rules.”
See this November 2008 blog post.
The speaker had a difficult time keeping my attention. He is obviously an expert in the subject, but seemed a bit too “in the clouds” or in the “ivory tower” rather than giving day-to-day advice to attorneys drafting documents.
Jeepers! It’s been a while since someone suggested I was “ivory tower.” More generally, as I noted in this July 2008 post about my public seminars, I’ve come to accept that any group may well contain someone who’s not going to be satisfied with what I have to offer.
I wonder whether we are making full use of the talent we have in-house. I suspect that [name] and [name] or a number of others could have provided a contract drafting seminar that would have compared very favorably with this presentation and would have been talored to the firm’s needs and expectations.
Sure, anyone who has thoroughly digested MSCD could give this seminar. For example, Larry Bell of Benesch has used MSCD in his training program for their associates. But generally partner presentations on contract drafting don’t deal with contract language but instead focus on miscellanous structural and substantive issues in drafting M&A contracts. For more on this, see this article.
And if, as mentioned above, partners generally have their own preferences when it comes to contract language, I’m not sure one can speak of a law firm’s “needs and expectations” in that department. For example, I have yet to encounter a law firm with anything resembling a drafting “house style.”
Even in those instances where my views differ from those of any of the above commenters, the customer is always right. I’ll bear these comments in mind for purposes of future seminars.
Customising Law-Firm Seminars
I’ll close with a further comment from the professional development manager:
Because our firm is used to writing contracts a certain way, what I thought might be beneficial to you as the expert and presenter, is to have a writing assessment before your presentation. This can be done either through participants’ writing samples being sent to you and critiqued and using them in your presentation, or interviewing the key partners at the firm to ask them how they have done contracts in the past. You are the expert in the field and it would tailor your presentation to the specific firm you are presenting at and/or consulting at.
This is a great suggestion, but as I mentioned above, the partners likely have their own preferences. And often enough, the drafter simply goes with the usages in whatever contract model is being used. That means I’d just be assessing a mish-mash of drafting styles. In-house seminars at companies are a different matter, as companies tend to have a limited number of templates for commercial contracts. Those templates constitute a limited set of materials that I can usefully critique.
I could imagine critiquing associates’ work sometime after the seminar, once they’ve had a chance to implement some of the things we discussed. Each participant could send me a draft contract; I’d review it, mark it with Word comments, and send it back; then the participant and I would discuss my markup over the phone. But that would be a time-consuming process with a separate price tag.
Have you considered how much of this constant demand to stick with traditional-drafting is nothing more than an attempt to protect the mystique of the profession (and thereby justify our exhorbitant rates)? You keep citing a justification for your method as making it easier for people to read the contracts. Should we consider that maybe making it more difficult for others to read is exactly what these sorts of people are all about?
We can’t come to a consensus on how to do these things if we’re all working towards conflicting ends. And, I can’t suggest how there’s an easy way to call these ‘mystique of the profession’ people out on their strategies (and I suspect some of them haven’t even consciously realized what they’re doing and why). Sadly, many of those people are also the ones pulling the strings in our law firms, so we sit and watch our profession frittering away its (very thin in the first place) goodwill with its public while others worry about their short-term profitability checks.
(Do you sense that I have little hope for fixing the circumstances you describe in any BigLaw (and even MidLaw) setting? It’s only likely to occur in those settings where like-minded lawyers have struck out on their own and determined as a matter of policy from the start that they aren’t going to fall into the old paradigm of using the same form of agreement that was used in 1963, and they’re going to be willing to sell their policy to their clients as a benefit. And, they need to be willing to cede the mystique and trust that people will still see value in their services even after the clientele can actually understand what it is that we do!)
Anonymous Pest: I’m much more placid about this than you are. Probably because you, as a practicing lawyer, are constantly doing deals based on crappy contracts. Me, I get to say my piece, then move on. I’m not seeking to cram anything down anyone’s throat.
I’m also optimistic about change. On one side, we have order, in the form of MSCD; on the other, we have chaos. People will opt for order, although they may not get to enjoy its benefits until the Old Guard dies out. In that regard, I’m encouraged by the strong sales of MSCD.
I think of the drastic inconsistencies in English spelling. Once dictionaries were introduced in the mid 1600s, spelling started to stabilize, and by the 1800s most words had set spellings.
But I’m not suggesting that we’ll have to wait 150 years for progress! For one thing, I expect that document assembly will help propagate decent contract language more quickly than would be the case if we waited for the world to change one lawyer at a time.
Ken
I think that what will speed this process up far quicker than any enlightenment through knowledge is the changing face of law.
Clients increasingly seem to care more about clearer, shorter documents and lower costs. I think that these goals are entirely compatible, but they require both increased commoditisation to the extent possible, and better and more efficient technical drafting skills to the extent law cannot be commoditised.
It won’t be too long before anyone drafting lengthy, obscure, head-fugging prose in contracts at the leading edge of commercial law is going to find themselves out of a job. To a client, the “mystique of the profession” is something they have to tolerate, not something they respect. As soon as they find a lawyer who can make their life easy while delivering the same quality, they’ll move on without a second thought.
Most of the work I do is in telecom, and I have had several sets of documents come back with redlines inserting all the “lawyer talk” MSCD abhors, adding, sometimes, multiple pages to what I thought was a complete document. These are mostly inhouse (corporate) counsel, although some large, private lawfirms have performed the same kind of Frankenstein-like surgery.
Disclaimer – I am a lawyer, though I am really a part owner of the business and technically not “practicing law” in the traditional sense.
Disclaimer 2 – The world of telecom agreements is a bit bizarre anyway, with lots of technical stuff, and the creaking legacy of a crumbling regulatory environment.
Ken, I happen to agree with what Anonymous Pest says in his first paragraph. The imperative to uphold jargon and ‘lawyerspeak’ is absolutely linked to billing fees. This observation is based on my experience as a Solicitor and a legal trainer.