So You’re “Hosed” If You Use Older Lawyers for Your Contracts?

Here’s the opening of this Gigaom story, by Stacey Higginbotham:

One of the biggest roadblock to adopting the public cloud for Rich Roseman, former CIO at 21st Century Fox had nothing to do with bandwidth, vendor-lock in or security. It had to do with lawyers. Specifically, old lawyers who couldn’t adapt their contracts to the new world of the cloud.

“If your attorneys are in their 40s, 50s or 60s, you’re hosed,” he said at the eCloud Summit, an event hosted by Actifio in Austin, Texas.

I’m mildly annoyed to find myself fifty-four years old, which makes me either “older” or downright “old,” depending on one’s perspective. But at the risk of stating the obvious, it’s not age per se that’s the evil here. Instead, it’s attitude. Does your lawyer rely on inscrutable terms of art instead of stating meaning clearly? Does your lawyer spend inordinate amounts of time engaged in negotiation theater? Is your lawyer fond of the archaisms and redundancies that characterize the traditional prose of contracts? Well then, yes, you are hosed.

But bringing to bear a different approach isn’t a function of age: there are plenty of young lawyers out there who know only how to regurgitate and tweak the time-honored language of precedent contracts. Instead, it’s a matter of flipping a switch and changing from passive drafting to active drafting.

That said, there’s a strong correlation between age and passive drafting, simply because passive drafting has long been standard practice. But now there’s a different way, and it’s up to each lawyer, including us oldsters, to choose how to go about working with contracts.

The biggest agent of change will be time. To tweak and repurpose something that the linguist Patricia Cukor-Avila said about the “quotative like” (here), perhaps eventually all the people who hate active drafting are going to be dead, and the ones who use it are going to be in control.

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.