An Outsider’s Observations on My Contract-Drafting World: A Q&A with Mark Herrmann

Recently, I’d been feeling restless. Irritable. Prone to laughing jags and fits of tears. I knew that I needed the wisdom of one graced with insight. So I set off a quest, and in the Karakoram, on a ledge high on Gasherbrum IV, I found him, sitting cross-legged in a loin cloth, making origami out of glossy law-firm marketing brochures.

It was Mark Herrmann. Yes, I know that he’s vice president, chief counsel—litigation, and global chief compliance officer at Aon plc. But it was as author of The Curmudgeon’s Guide to Practicing Law, contributor to Above the Law, and author of broadsides such as How to Write Articles that Don’t Generate Business that I sought him out.

Of course, he’s not a transactional guy, but I thought that would put him above the fray, better able to divine patterns in the masses scurrying to and fro on the dusty plains below.

So I asked him my questions. He cocked a quizzical eyebrow and grabbed a Franklin-Christoph Model 40 pocket fountain pen and a sheet of paper from the stack next to him. For the next two minutes, the pen skittered across and down, across and down, leaving a trail of jagged script, with only the occasional cry of a Himalayan eagle to break the silence. Then he handed me the sheet of paper and kicked me off the mountain.

Below are my questions and his answers:

***

Ken: Unlike litigation writing, most contract drafting involves copying, then tweaking. As I discuss in this article and this article, the result has been systemic dysfunction: lack of guidelines, lack of training, reliance on misbegotten conventional wisdom, a tolerance for—nay, insistence on—impenetrable gibberish in one’s contracts, and stultifying inertia. Any thoughts? Suggestions?

Mark: Please don’t think that corporate lawyers are a special breed.

Much litigation writing (particularly in smaller or repetitive cases) involves copying, then tweaking.  One of my first assignments as a young lawyer was to write a motion to dismiss in a wrongful discharge case. The partner gave me a motion that he’d recently filed in another case. I dutifully lifted the arguments, copied many of the paragraphs, and adapted the form motion to fit my case. When I handed the partner my draft, he told me that it wasn’t very good.

“How can it not be good? It’s almost identical to a brief you filed last month.”

“The last brief wasn’t very good. I received that draft from a mediocre associate. I figured the court would grant our motion and give leave to amend no matter what we filed, so I didn’t spend the time (and money) needed to make the brief better. But you have to learn how to be a good lawyer; your brief has to be better.”

This was a revelation to me: My job wasn’t just to copy mindlessly, but to produce top-notch work! Who’d a thunk it?

(Decades later, when I was defending a mass tort, I asked a mid-level associate to draft a motion to dismiss a case that had recently been filed in Michigan. I gave the associate an analogous motion that we’d filed a week earlier in a Pennsylvania, because that was the sample most conveniently at hand. Several days later, the associate handed me a brief that changed the name of the plaintiff, but otherwise made all of the arguments that we’d made under Pennsylvania law, continuing to cite only the Pennsylvania cases that we’d used in the earlier brief. People have a seemingly unlimited capacity to act without thinking.)

Once you adopt the attitude that your job is not to copy mindlessly, but rather to produce top-notch work, it changes the way you approach everything. The senior partner gives you a draft, and you don’t just say that it looks good to you. You think about it, add new arguments, and suggest changes. If you’re any good at all, that attitude – not the routine complacency – will be the route to success.

But how can we fix the tendency to copy mindlessly and produce poor quality work? You would hope that clients appreciate good work; that partners want to impress clients; and that partners would thus work with associates to create top-notch contracts. That isn’t true for all clients or all partners, and it surely isn’t true of all contracts, but you’d hope that, over time, the fittest would survive and prosper.

Ken: In this post I describe how I attempted to engage with, and was ignored by, two big-company general counsel with a reputation for being innovative. What prompts that sort of if-I-ignore-it-it-will-go-away mentality? What prompts actual innovation (as opposed to posturing)? Is it the mindset that a general counsel brings to the job, or do you need some sort of crisis to break the logjam? Or does a general counsel actually have rather limited control? Is a GC less like a CEO and more like the manager of a football (soccer) team, gesticulating from the sidelines?

Mark: No one read the materials that you sent to the two general counsel.

In-house life consists of continual triage: You spend all day distinguishing among things that must be done immediately, things that can wait a few days, and things that can safely be deleted unopened or ignored.  Emails from lawyers you’ve never met soliciting your business don’t climb too high on that food chain.

The general counsel who didn’t respond to your solicitation either intentionally ignored your email or decided that it could wait a few days, and then forgot about it.

The other general counsel decided to delegate the task of responding to your email. And the person to whom the GC delegated the response then decided that he could either ignore your email or set it aside for a few days.  If he set it aside, then it’s still there, waiting. It will wait there forever.

I’ve never seen in-house lawyers frantically busy in the ways that my former colleagues and I experienced in private practice – working 22-hour days for the duration of a weeklong trial, or pulling an all-nighter to ensure that a deal closed.  But, no matter the schedule an in-house lawyer adopts – leaving every night at 5, or 6, or 7, or later – that lawyer is still bombarded with phone calls and emails. The in-house lawyer sits down at his desk in the morning and sorts through the emails that arrived from overseas during the past eight hours. He then starts deleting invitations to attend seminars, the brochures forwarded by firms, the emails from IT using words that he doesn’t understand to explain recent upgrades to the system, and invitations to lunch or solicitations from lawyers he’s never heard of. (That’s when your email disappeared.)  He then looks at the emails from the senior executives and important business folks, deciding which ones need immediate attention, and only then turns to messages from people further down the corporate hierarchy.

At that point, it’s 9 am, and the in-house lawyer starts the series of back-to-back-to-back meetings and phone calls that his administrative assistant scheduled for him all day. At 5 pm, the lawyer returns to his desk and repeats the email triage routine.

It’s not that the general counsel wouldn’t care about your ability to improve the quality of work produced by the in-house legal staff (or that he doesn’t have the ability to change things). It’s much more likely that he didn’t have (or chose not to make) the time to focus for a half hour on what you had to offer.

Ken: As I suggest in this post, it might be that many junior lawyers aren’t keen on in-person continuing-legal-education sessions, even those that actually seem worth attending. Do you think that’s the case? If so, what explains that? An internet-addled attention span, so they focus only on whatever they happen to be working on? Bullying by partners? Free-floating fear and loathing? The almighty billable hour?

Mark: I suspect that three things discouraged people from attending your CLE program on legal drafting.

First, your program ran for 4 ½ hours. [KAA: The presentation that prompted my post was actually 1.5 hours, but I mostly do longer programs, so Mark’s point remains relevant.] You thus weren’t offering a bite-size program of material that an associate could immediately put to use. Instead, you were asking people to dedicate a half day to your talk.  For a busy lawyer, that’s a big chunk of time. And, since your program ran for a half day, an associate might think that the class would cover assorted things that wouldn’t matter to the associate (or that the associate figured he already knew).

Second, your topic involved process, not substance. I sense that people are more likely to attend a CLE program on a substantive topic that interests them (or would expand their expertise) than a program that focuses on process (such as legal writing, or dealing with difficult opposing counsel, or the like). Offer a course on the Perishable Agricultural Commodities Act; perhaps you’ll draw a larger crowd. [KAA: My stuff actually attracts more people than most CLE sessions; I think that the issues I mention are endemic.]

Finally, I think you’re right to blame in part “the almighty billable hour” for the sparse attendance at your CLE program.  If people had unlimited time, they’ll surely be more willing to take your course. But if, at the end of the year, associates could have spent four hours (1) lying on a white-sand beach sipping a mojito or (2) listening to your talk on drafting contracts, I think I know which way they’d lean. Given the unfortunate and relentless focus on billing time, lawyers are increasingly unwilling to “waste” time by attending CLE programs, serving on charitable boards (unless those boards offer the potential to develop new business), or otherwise engaging in a well-rounded civic and professional life.

As for me, I’m thinking of getting a new loin cloth, strolling across the Siachen Glacier, and settling in on K2.  Would that be okay with you?

Categories Q&A

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.