In this post I mentioned that I had asked my students at Notre Dame Law School to analyze the verb structures in the “SOW terms & conditions agreement” (available here) that goes with Cisco’s advanced-services statement of work.
Well, I decided that some of you might find of interest my comments on how categories of contract language are handled in the first three pages of that document. Go here for my annotated PDF. To read my comments, you have to download the PDF and open it with your preferred PDF reader. [Updated April 9, 2015: You’ll probably find more convenient the PDF summary, here. It has highlighting and comments on separate pages.]
As is always the case with any categories-of-contract-language analysis, I’m not suggesting that Cisco somehow failed to follow “rules of grammar,” heaven forbid. Instead, they used erratic verb structures, thereby creating the potential for confusion and making the reader work harder. Drafting with erratic verb structures is like doing dentistry while wearing oven gloves. The alternative I offer is a framework of different categories of contract language and their associated verb structures. It’s consistent with everyday English, as adjusted to fit the distinct requirements of contracts. And avoiding risk is as much of a priority as is being clear.
Why choose a Cisco contract for this exercise? Because for the sheer heck of it, earlier this year I did a broader analysis of the first few pages of this document, my highlighted comments leaving the PDF awash in fluorescence. I contacted Cisco about it through different channels, but I didn’t hear back.
The drafting in this template is an embarrassment. But it’s also consistent with the prevailing standards for commercial contracts. The question I’d ask Cisco, and would ask any number of other big companies, is why they’re wedded to their dysfunction, given that they have the resources to do better.
12 thoughts on “My Categories-of-Contract-Language Analysis of a Cisco Template Contract”
For an in-house attorney to care enough to change a widely-used form in response to an unsolicited email, you need to demonstrate how your changes affect some substantive terms in the SOW.
In other words, “Dear Cisco – Your intent is to protect Cisco in your SOW terms, but certain sections of the SOW terms do not do that for the following reasons: …..”
Otherwise, you fall into the synonym trap: you draft with more economy, but the contract you draft and the one they’ve already drafted provide pretty much the same protection.
When you’re talking about a core sales contract that’s entered into hundreds or thousands of times a year, making that contract much clearer and much more concise is not a trivial matter.
Furthermore, the categories-of-contract-language issues I flagged in Cisco’s template include some that routinely create confusion leading to dispute.
I agree that it’s not a trivial matter to make a widely-used form clear and concise. But it’s also not a trivial matter to make changes to a widely-used form that, in Cisco’s experience, works.
I occasionally receive unsolicited comments about my company’s forms, and I delete them almost immediately because they do not tell me the most important thing: “Here are some concrete examples of how your form is hurting you, and here is how I can help you fix that.” That, I think, is the hook anyone needs to get the attention of in-house counsel. And even that has a remote chance of success given the volume of work in-house counsel typically have.
It’s easy to rationalize inertia.
Exactly. And that is why it is so important to have examples of how someone’s form is actually hurting them. Otherwise, you’re just proposing another way of saying the same thing with the same result.
Exactly! And that’s why it is so important to offer concrete examples to show how their form really hurts them and your changes protect them. Otherwise, to them, you’re just saying the same thing a different way but with the same result.
I feel your pain!
Postscript – Thoughts on why Cisco apparently doesn’t care about correcting the flaws in this document: Their customers don’t push them to make any changes, and Cisco has leverage over their customers to sign the document “as is.” Cisco’s lawyers don’t have the foggiest idea of Plain Language. Ken should present his “Drafting Better Contracts” seminar to Cisco’s Legal Department and other IT firms’ counsel should attend as well. In my experience, the only major tech company that is somewhat attentive to Plain Language is Microsoft.
I didn’t go easy on them! Instead, the flagged items relate to just one kind of issue, the categories of contract language. I thought that would be more instructive, as a broader analysis would have resulted in dozens and dozens of comments.
As regards your explanation, it sounds about right. But if Cisco is interested in saving time and money, being more competitive, and avoiding disputes, it should pay more attention to its templates.
Ah, my mistake. Got it now, Ken. Lately, when I make plain language changes to a contract, I have a 4-page “canned” explanation that I send to the other side that supports each change with specific references to you, Professors Kimble and Garner, and Mr. Butterick.
Would you care to share it with my readers?
It is a work in progress, Ken. After some further revisions and polishing, I will send it to you.