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.