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.

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

  1. I looked at the Gigacom story to see what the sins of the older lawyers were:

    ‘The companies spent a year arguing a single point in the negotiations over who would cover the credit monitoring for the roughly 50,000 employees that would need the service should the Concur service experience a security breach.

    ‘At that point, Roseman said that he took a look at the cost of covering the employees, which his company already did, and the cost of paying the lawyer for the negotiations for that year and realized that this single point was beyond silly and they just did the deal. But it’s that sort of mentality that can suck the agility out of bringing on a cloud provider if you aren’t careful.’

    Apparently Mr. Roseman’s assumption was that a lawyer in her 20s or 30s wouldn’t sweat the small stuff as an older lawyer would.


    I’d have guessed that with experience, a lawyer gets a growing sense of the difference between the forest and the trees.

    The Gigacom article said that Citi ‘is a big believer in the benefits of moving to the cloud, so it is building an internal one.’ Sounds like a head cold.

    ‘The cloud’ uses the definite article although its name is legion, with many public clouds of varying caste (‘by public cloud, they meant service provider clouds from Verizon or IBM, not Google or Amazon’) and many private clouds.

    Reminds me of the old days when radio was new and not everybody had ‘the radio’. Does one ask another, ‘Has your firm the cloud?’

    The article also said ‘Maybe in a decade we’ll be having panels about the shift to decentralized blockchain-based architectures.’

    Blockchain is ‘the decentralized data transaction processing technology behind Bitcoin’ and mustn’t be judged by its user, one supposes.

    What’s wanted is perhaps not so much active drafting as bona fide nerdity.

    if so, perhaps Mr. Roseman is right; the saying about old dogs and new tricks comes to mind.

  2. I learnt a new word today: hosed. It seems to be a synonym for screwed. Or stuffed, as they say in the Antipodes.

    I hope the computer nerd learnt a lesson from his experience, which is that he should work more closely with his lawyer to evaluate risk and decide which terms are important in his contracts, and should then manage his lawyer effectively. If all he learnt was to use a younger lawyer, then he’s mis-diagnosed the problem. He’s hosed himself. Don’t they have pants for that?


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