The Minimum Standards for Discourse: A Response to Tim Cummins

Ah, the marketplace of ideas! You get to set up your soapbox on any street corner and do your darnedest to plug your ideas. May the best ideas win!

But even the rough-and-tumble of the marketplace of ideas has a code of conduct. For one thing, you don’t get to have your ideas prevail over the other guy’s by putting a hood over the other guy’s head, hog-tying them, and throwing them in a ditch.

So I was interested to see this post by Tim Cummins, CEO of the International Association for Contract & Commercial Management (IACCM), on his Commitment Matters blog.

The title is “Beware the Traditional Lawyer,” and ostensibly it’s a critique of an article I co-authored for the Association of Corporate Counsel, “Top Ten Tips in Drafting and Negotiating International Contracts.” (It’s available here.) This is how Tim’s post begins:

In a recent article, the Association of Corporate Counsel offers its ‘Top Ten Tips In Drafting & Negotiating International Contracts’.

While the items listed are worthy considerations, they miss the most critical issues and in some instances, fly in the face of good practice.

So what is wrong? Essentially, the article displays an absence of appreciation for the key risks associated with doing business internationally and the role the contract can and should play in avoiding failure.

Tim then goes on to discuss those issues that he regards as important. I suggest that in a number of respects, Tim’s post fails as a legitimate critique.

First, given the topics Tim touches on in his post, he evidently objects that my co-author and I didn’t write an entirely different article. That’s preposterous. My focus is day-to-day work with contracts, so that’s what the article dealt with. And our ten points fall squarely within the title I was given. Presumably others could write different articles with the same title, and Tim’s welcome to do so, although the topics Tim would have liked to see covered appear to neglect the “drafting” side of things.

Second, he alludes to serious shortcomings in the ACC article without offering any specifics. How exactly does the article “fly in the face of good practice,” other than because we didn’t write a different article? I seriously wonder whether Tim actually read the article. For example, he says that engaging local counsel everywhere can be prohibitively expensive, but that if you reduce costs by implementing alternative dispute resolution, “several of the ‘ten tips’ become redundant.” That makes no sense—the article is about transactional work, not dispute resolution. Furthermore, we mention local counsel in exactly one of our ten points.

Here’s another example to the same effect: Tim says—referring to my co-author and me—“However, they focus primarily on the lawyer’s role in dealing with the consequences of failure (that old security blanket that makes us indispensable) and presume adversarial behaviours.” I have no idea where he got that from. The ACC article discusses basic issues involved in putting a deal together, with the emphasis on avoiding dispute.

Third, he doesn’t mention me or my co-author, and he doesn’t provide a link. Perhaps he thought that gave him license to sandbag us, but he does refer to the article by name. Since anyone could quickly figure out who wrote the article, the appropriate thing to do would have been to mention the authors and provide a link. And given that I’ve had dealings with Tim and IACCM for more than ten years—among other things, I’ve done a couple of “Ask the Expert” calls for IACCM—it would have been diplomatic for Tim to tell me about his post beforehand.

And fourth, Tim in effect takes a swipe at my co-author and me. Presumably we’re examples of the traditional lawyers that he warns his readers about. And he insinuates that we’re not among the “top lawyers” who “aim much higher” than we do in our article.

In sum, Tim’s post is as unprincipled a hatchet job as I’ve seen in my years of wandering the marketplace of ideas. I’ve certainly never previously been on the receiving end of such a misguided broadside.

When I told Tim by email that I wasn’t pleased with his post, and why, his response was a standard non-apology—he was sorry that his post came across as hostile. So there was nothing inadvertent about his post.

I suspect that Tim permitted himself to attack me because I’ve written critically about some of his sacred cows. That’s fine—commentators don’t have to like each other. The bigger question is how his post went so off the rails. Sheer malice is always a possibility, but I suggest a different cause. The little I’ve read of Tim’s writings boils down to generalizations about how we must all do better and cast off the old confrontational ways. So his post about the ACC article had to fit that same narrative. Because what my co-author and I say in the article doesn’t conform to that narrative, he simply exchanged it for his own notion of what our article might have said. All Tim has is that one hammer, so of course our article had to be a nail.

Why discuss this publicly? Why not simply let it go? After all, Tim’s post would have quickly sunk into cyberspace oblivion. If it had been anyone other than Tim, I probably would have done that. But when the head of an organization that’s active in the contract-management community takes it upon himself to publicly attack me and, in particular, my co-author in such an unfounded way, I think it appropriate to respond. And since Tim’s attack was public, it seems appropriate for me to respond publicly.

I’m not writing this out of animosity. Instead, I just want to point out to Tim, and to others hanging out in the marketplace of ideas, that this sort of conduct debases what should be healthy debate.

I gather that, amazingly enough, some people feel threatened by what I have to say. They’re more than welcome to take me on, but I suggest that they comply with the minimum standards for discourse in the marketplace of ideas.

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.