Updated 11 May 2019: This discussion continued across various platforms. Mark Anderson did this post; that prompted this post by Tim Cummins; I responded to Tim’s post with this LinkedIn comment; that prompted a back and forth between Sally Hughes and Mark Anderson. Mark joined me in concluding that further discussion would be a waste of time, but not before his closing salvo, this post. Now on to my original post.
Recently I unexpectedly found myself unleashing a small flurry of polemic. There was this post about traditionalists challenging my changing promises to pay to shall pay in promissory notes, but what’s on my mind now is this post critiquing an article published by the International Association for Contract and Commercial Management (IACCM).
That post prompted this LinkedIn post by Sally Guyer, Global CEO at IACCM. That in turn prompted a comment by me, this response by Sally, and another comment by me. But the issue raised is substantial enough that I want to tackle it in detail in this post.
IACCM and I have a long history of debating how important it is for those who work with contracts to be informed consumers of contract language. The IACCM article and Sally’s post about it were more of the same, and I wanted to better understand the drastic difference in how we approach contract language. I think we’ve gotten to the bottom of it with Sally’s comment or, more specifically, this part of it:
We certainly acknowledge the work that you do as a component of simplification – it just doesn’t go to the level that modern society requires and increasingly demands.
Saying that my work “doesn’t go to the level” might suggest that it’s simplistic. But instead, Sally is in effect saying that because my guidelines are too detailed, they’re inconsistent with the simplicity that IACCM thinks we should strive for. (Saying that my work is a “component of simplification” is damning with faint praise.)
My rebuttal is simplicity itself: Knowing how to express deal terms clearly, so as to make contracts easier to read and to avoid risk, is complicated. Understanding the dysfunction in traditional contract drafting is complicated. Given what’s at stake in contracts, and given the endless nuance of the English language, potential for confusion and dispute lurks around every corner. After all, given the mountain of caselaw devoted to wrestling meaning from confusing contract language, it should come as no surprise that devising guidelines from clear contract language isn’t a cinch. That’s why A Manual of Style for Contract Drafting (MSCD) is 584 pages long. That’s why, for example, my forthcoming article on efforts provisions weighs in at 45 pages.
If Sally were referring to contract substance, she’d get no argument from me: most contracts can be streamlined, sometimes drastically. But my guidelines are about something different: how to say clearly and concisely whatever you want to say in a contract.
Sally doesn’t attempt to offer evidence by getting into specifics. For two reasons, that’s not surprising. First, to get specific, you have to actually read and understand my guidelines, and that’s not something one can do casually. And second, my guidelines are the result of my freakish dedication combined with advice from renowned experts (Rodney Huddleston, anyone?) and comments and tips from countless readers over many years. You would have to look long and hard to find serious flaws; obviously, I’m unaware of any. (But if anyone can point to shortcomings, please do so! You’d be doing me a favor.) It’s much simpler to dismiss my work without even attempting to offer a reasoned justification.
A lack of specifics is also on display in a comment to Sally’s post by Michael Twomey. His advice is limited to recommending that you use a simple structure, with short words and short sentences. That will get you nowhere, but it captures nicely the position of the IACCM camp. As regards my guidelines, he avails himself of rhetorical questions: “Can it be that difficult to express intentions clearly? Or do we really need a 600 page manual to be able to do so?” Yes, it can. And yes, you do.
Given the absence of specifics, I wonder which of my guidelines are lacking. My framework for using verb structures, so, for example, you don’t express as an obligation what should be expressed as a condition? (Go here for my “quick reference” chart.) My recommendations regarding use of the phrase material adverse change? My recommendations for avoiding fights over and and or? My recommendations for efficient use of defined terms? Something else?
As far as I can tell, the only objection to my guidelines from the IACCM camp is that they involve work. To which I say, Welcome to contract language! As I’ve demonstrated in copious detail, you can’t wish away the complexity. That has two main implications. First, the dreadful incoherence of traditional contract drafting is the order of the day: expecting contract managers to do battle with it without the benefit of guidelines is reckless.
And second, if in preparing contract language you’re oblivious to the issues I address in my guidelines, the result will be prose that’s varying degrees of suboptimal. To see exactly what I mean, go here for my 2014 analysis of IBM’s then-new cloud services agreement, and go here for my 2017 critique of an article in the Harvard Business Review by a general counsel at GE Aviation about their new template.
It’s not as if IACCM regards my guidelines as inadequate but is using another set of guidelines. There is no other set of guidelines: MSCD is it. It has sold tens of thousands of copies worldwide. Heck, in a review the English Law Society Gazette called MSCD “extraordinary.” But IACCM prefers that instead of availing themselves of my guidelines, its members wing it when it comes to contract language, a limited and stylized kind of writing where a lot is at stake. That too is extraordinary, but not in a good way.
What explains IACCM’s position? Based on my years as a very casual observer of IACCM, here’s what I think has happened. Lawyers have been accorded primary responsibility for contract drafting. IACCM has accepted that, but grudgingly, in that it regularly complains about how lawyers have messed up contracts. Because IACCM feels it doesn’t have a say over contract language, it has decided that it’s a subject that’s not worthy of its members’ attention. But unfortunately for IACCM’s members, pretending that nuances of contract language don’t exist doesn’t make it so.
To a certain extent, I sympathize. The dysfunction of traditional contract drafting prompts extreme reactions. Traditionalists cling to the established disorder by striving to legitimize the chaos. By contrast, frustration prompts others, including those in the IACCM camp, to reject the idea that a lot is riding on how you say whatever you want to say in a contract. But both reactions leave you without effective guidelines in a context where they’re essential.
So what should IACCM do?
First, it should recommend that its members become informed consumers of contract language, and it should help them with that process. That involves more than, for example, discussing aspects of hot-button deal provisions: again, I’m referring not to what you say in a contract but how you say it. You have to be willing to get under the hood and understand how the engine works. For that, a style guide is essential. I appreciate that MSCD is more than many of people need. That’s why the ABA and I recently agreed that they will publish in 2020 my shorter style guide, entitled Drafting Clearer Contracts. (Now all I have to do is write it!) But note that IACCM isn’t saying, Make your guidelines shorter! They’re saying, We don’t need them!
Second, IACCM should embrace a more balanced approach to redrafting templates, one that seeks economy yet acknowledges that understanding the building blocks of contract language is an essential part of the process.
And third, IACCM could do more with technology. Contract managers would have a much simpler time of it if they were able to draft contracts by answering an annotated online questionnaire, with the output document containing rigorous content that complies with a style guide. And artificial-intelligence technology can greatly help with review of the other side’s draft. (That’s why I’m an advisor to LegalSifter.)
Contract managers represent an important constituency that should play a bigger role in contracting. There’s little about contracts that’s specifically legal, and what there is tends to be what’s least compelling in any given deal. (See this 2011 blog post.) That lawyers have primary responsibility over contracts is the result of a brazen turf grab. I’d like to see contract managers reclaim some of that turf. IACCM could help advance that cause by adopting a more realistic approach to contract language.
Contract managers, do you want more control over what’s in the contracts you work with? Learn the elements of clear contract language, with or without IACCM’s help.