Recently on Twitter, Lawrence Hsieh (aka@ContractAdviser) compared me to longtime sports-radio provocateur Mike Francesa. And the next day a reader emailed me to say, among other things, “I like reading your comments but you are, I have to say it, opinionated!”
So am I just spouting opinion?
First, let’s get our terminology straight.
On the one hand, there are facts—information that can be objectively verified. On the other hand, there’s opinion—any belief or judgment that rests on grounds insufficient to produce complete certainty. Opinion is what you offer when you don’t have all the facts. Or when you’re using subjective criteria. Or when you’re making a prediction.
When I assess a given usage, a piece of drafting, or a particular approach to the drafting process, what I do is offer value judgments: What works, what doesn’t work. Whether X is more efficient than Y. That’s not equivalent to Mike Francesa suggesting whether a given trade will work out for the Yankees. Instead, I’m stating facts, although I’m sure you’ll find some opinion here and there.
If you think I have my facts wrong—it’s been known to happen!—let me know. But facts, right or wrong, are different from opinion. And @ContractAdviser recognized that in saying about me, in his Francesa-related tweet, “you might not like what you hear, but he’s correct most of the time.” Opinions aren’t correct or incorrect—facts are.
You may be creating a false dichotomy here. Two people in possession of the same facts may interpret them differently (let’s leave it to the Platonists and the Wittgensteinians to duke it out over whether it is even possible to describe “facts” uniformly or at all). For that matter, a “value judgment” is just another type of opinion: you value precision of expression more highly than, for example, deference to established court precedent and prognosticating whether a court will reach the same conclusion you do. There are perfectly good reasons why you have your preferences, but that doesn’t make your preferences objective and someone else’s subjective.
Vance: I realize that people have probably built academic careers around the nuances I’m groping at, so I’m prepared to abandon this analysis entirely. But that said, it’s not a matter of my preferences being objective and someone else’s subjective. Instead, I’m saying that analyzing the efficacy of a given usage isn’t subject to the uncertainty that characterizes opinion. If someone else and I disagree over a given usage, we’re not trading opinion. Instead, I’d expect that one or other of us has the better of the argument. Ken
Ken, that is a very interesting comment. Once we have a definition of efficacy, we can analyse whether X or Y is
more efficacious, and this can be viewed as a question of fact (or who
has the better of the argument) and not opinion.
The problem as I see it is that you subjectively set up a definition of efficacy, which as Vance says involves choices, eg preferring precision of expression over court precedent. It is a good definition, but it is subjective, not objective.
So, for anyone who doesn’t 100% agree with your definition, choosing between X and Y is no longer a question of fact but is a matter of opinion.
Mark: How deferential one should be to courts isn’t a matter of opinion. Instead, one simply adopts a position and defends it with whatever empirical evidence one can muster. In that regard, nothing I’ve seen suggests that adopting a more deferential approach would lead to clearer contract language.
And it’s rare than anyone wishes to engage me in rational discussion on the subject. Instead, they invoke the notion of “tested contract language” not to set the scene but as an end in itself, as a trope, an invocation.
Ken
Ken, that wasn’t really my point. Your view is, I think, that “clearer contract language” is the sole criterion on which to judge wording. You expand on what you mean by clearer contract language in MSCD.
Whether this is the right basis on which to draft contract wording is a matter of opinion, or at least it is using my understanding of the word “opinion”. The mix of criteria that I use (and teach others to use) overlaps to a large extent with yours but it is not identical. One of the ways in which it is not identical is that I want my wording to be clear AND to be interpreted correctly by judges, with all their faults.
You note that it is rare that anyone engages you in rational discussion on the subject. I would respectfully suggest that this may be because your feisty style, your definition of the criteria by which arguments may be judged, and the home territory advantage that you have on your own blog, make it extremely difficult for anyone to win an argument with you on this blog. In fact, I don’t recall it happening.
Reply
Mark: Some abstract notion of clear language isn’t the sole criterion I use. Instead, my lode star is avoiding dispute. To achieve that, I use standard English and keep a watchful eye on what language causes disputes or causes judges to come a cropper.
My point about rational discussion was limited to the concept of “tested” contract language. I think it’s an unhelpful concept, and I’m not the first to say that.
As regards my tone, it’s been a long time since anyone complained about it. I’m passionate about my subject. And in an attempt to entertain myself and engage readers, I permit myself to have a voice. I’m not aware of having been snide. And commenters have certainly “won,” if winning consists of making me change my opinions. For example, check out my post on “joint and several,” which underwent significant surgery in response to the initial comments.
Ken
Ken, did you ever have nightmares about being in one of those lifts (elevators) where the walls squeeze in and crush you?
In response to your latest points:
1. Noted.
2. Agreed.
3. I wouldn’t say you were snide or inappropriate, and I appreciate that you are entertaining and have a strong voice, which all helps to make this an interesting and valuable blog. Having said that, I do think you may cut off some debate by the degree of passion that you bring to the discussion. Not everyone is comfortable debating at that pitch.
Too tight … can’t breathe … call help … must h
I haven’t reread it recently enough to remember if it bears directly on point, but I remember being intrigued by David Foster Wallace’s essay/review “Authority and American Usage,” which was ostensibly a review of Garner’s Modern American Usage but, as a Wallace essay, of course covered more territory than a typical review. It appears in Wallace’s anthology “Consider the Lobster,” and was probably originally published elsewhere.
I ultimately bought Garner’s Modern American Usage based on the review, though I confess I have seldom opened it and was mostly interested in the introduction that inspired Wallace’s review.
Rereading this, I wonder if I might have landed the comment on the wrong post. It’s a bit of a non sequitur, though I recall the essay mentioned has a lot to say about prescriptivism and attitudes toward usage. Oh well.
Kenneth, I do not know you, but from what I read, you are qualified professional, so it is not a surprise some people say you are “opinionated”. By dedicating a whole article to it, you show it touched you in some way and you would like to make your points clear. What you need to know is that when people say you are “opinionated”, it means you are important!
Ken, not to speak for Mark (below), but I have consistently regarded many of your posts to come across as “defensive”. I think this blog entry is an example of that. I doubt Lawrence Hsieh expected that his observation would be met with an analysis of opinion versus facts.
I’m not saying that your analysis is at all flawed. I think the rigor of your analysis is what draws people to this blog. But in the interest of making this blog inviting to commentary, I believe an acknowlegement of the poster’s point in responses such as “I understand what you’re saying, but…” or “True, but the point I am making is…” would go a long way toward softening the tone. Even now as I am typing my post, my concern, based on past observation, is that you will pick out a sentence or point that I make and respond with a rebuttal rather than approach my post as a discussion.
As to Mr. Hsieh’s comment on being opinionated, as a practicing inhouse transactional attorney, while I am almost 100% in agreement in your analysis of what language would best “avoid dispute”, I have to weigh to what extent this type of analysis is worth my time and worth my effort of negotiation and explanation with the opposing attorney. I think your opinion of the value of this rigorous language is often higher than mine and other attorneys with practices similar to mine. I have no doubt that this rigorous approach has value and, in many instances, is imperative to avoiding dispute. As you have discussed the “good enough” response on this blog many times before, it holds true for those of us who have to balance rigor against time and resources.
Love your blog. It’s the only one I regularly read.
CKM: Ultimately, my readers are a better judge of tone than I am. I guess I aim for “frank” or “straightforward”; I’ll be on the lookout for “defensive”; but I’m not a fan of “mealy-mouthed.” As long as I’m not being rude, I’m not inclined to cosset.
Yes, I’m sure Lawrence didn’t expect me to fasten on his observation, but it gave me an opportunity to explore an issue that I encounter quite often. I enjoy trying to connect the dots in not-so-obvious ways. (By the way, it wasn’t Lawrence who used the word “opinionated.”)Regarding the value of language that complies with my recommendations, I guess that depends on the context. Most of the stuff I’m exposed to is in need of significant help, and there are cost-effective ways of upgrading a company’s templates. But I leave it to others to determine what sort of push-back they’d be likely to get and at what point change becomes more trouble than it’s worth.In any event, I’m pleased that you keep reading!
Ken