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.
Autre pays, autre merde, as Jack Aubrey said. In the world of the not-too-fastidious salesman, blaming the lawyers gets you half-way to selling your article. Cummins’ article is really about commercial risks. He seems to have a model deal in mind. Something like well known US clothing brand buying product from a developing country. Many of the items on his list seem fine in that context, and any decent lawyer would be able to address these issues in the contract if that is their remit, though in some cases it would be better to deal with the issue outside the contract, eg managing credit risk.
Actually, some of his points are aligned with yours, eg using clear language in contracts.
Cummins has a message and an organisation to sell. His track record, at least from a couple of other articles on his blog that I read, shows that he has a very specific audience in mind. Think of him as the shock-jock of international procurement. Irrelevant.
The IACCM article made no sense to me as a response to your original article. Glad to see it’s not just my poor reading comprehension skills!
Ken, in hindsight, your (excellent) ACC piece might have been better titled, “[Delete: Top] Ten Drafting Tips for Lawyers Negotiating International Contracts.” You and Tim Cummins are coming at the problem with different goals, legal versus business. Even so, the tone of your post above is puzzling. I didn’t read Tim’s article as being nearly the personal attack that you seem to have done. Many members of IACCM and readers of Tim’s blog are lawyers, so it’s not shocking that Tim invited them to think about the top-ten-tips question from another perspective than that of your ACC article.
Merely from a crass commercial perspective, one might question the wisdom of getting so personal about the rather-popular founder and head of a global organization that has some 34,000 members in (I think) 134 countries. Many of those members are key influencers in the contract-management practices of large corporations — your exact target market, if memory serves. If you didn’t like what Tim had to say, it might have been better to just grin and bear it.
(Disclosure: I work some with IACCM, including some things directly with Tim Cummins; I think highly of Tim, and that’s only in part because he’s a supporter of the Common Draft effort and a related, embryonic, IACCM contract-protocols project.)
Regarding the title and scope of the ACC article, I have nothing to add to what I say in my post.
The tone of my post? What do you expect, given that Tim took it upon himself to baselessly trash my work simply so he could trot out his standard platitudes. Nothing is more important to me than the integrity of my work.
I agree with D.C. Toedt that this didn’t need to become a personal battle, but I did think that Tim’s commentary on your article was off base, and last night I posted a comment to that effect on his blog. Tim often has some valuable things to say on the topics of contracts and the role of lawyers, and in many cases I suspect your views and his are actually aligned. But in this case he seemed to use the article as a basis for pursuing an agenda that doesn’t have much to do with the actual content of the article.
I also think the title of Tim’s blog (Beware the Traditional Lawyer) was more about an agenda than anything to do with your article. The kinds of people (lawyers or not) who follow you and Tim are likely to not be the “traditional” lawyers that Tim is concerned about. And I certainly don’t think of you as a “traditional” lawyer.
You can be sure I’m not enjoying this. As I note in my my post, I expressed my displeasure to Tim, but he made it clear that he had no interest. I didn’t see why I should permit anyone to indulge in such intellectual dishonesty at my expense.
Mind you, if he were simply to apologize and remove his post, I’d be happy to remove this post. I’d even be amenable to attempting to patch things up: I stick up for myself, but I don’t bear a grudge. There’s a job for you: peace emissary! ;-)
Disclosure: I wrote for many years a column for ACC and have spoken at a number of ACC annual meetings, and next week I’m speaking at an IACCM conference, and have (once) met Tim, but not (yet) Ken or Rene.
As someone who has been asked to write practical, pragmatic, and sometimes provocative articles (top 10 negotiating tips for major corporates, tongue-in-cheek [ish] being one), it seems to me that both Ken and Tim make some excellent points.
Tim’s comments about payment, regulatory environment and speed/cost/communication all resonate as excellent additional comments to the original Ken/Rene article. And yes it does seem somewhat critical the way it was expressed, but actually nearly all the points are valid and useful, so putting aside apparent tone (and I ascribe nothing to that, sometimes in my experience it really is unintentional), all are useful as adding to the discourse.
And certainly no criticism for Ken/Rene not including those additional points. There’s a certain (albeit pointless) magic to lists [disclosure 2: my conference piece next week is a list of 10 too, oops], and you can’t include everything.
I might add, however, to one of Tim’s additional points (completely respectfully, no criticism at all), that ADR is great in theory, and often in practice, but in some jurisdictions has become more hide-bound (and expensive) than litigation. But Tim is right, when it works, it’s far better than years of litigation.
Ditto exchanges between respected experts. Great points, all of you, thanks for them, keep it up.
Respectfully, all, Ron
You get full marks for diplomacy! Of course, this post isn’t about the merit of whatever points Tim had to make. Instead, I simply point out that his trashing of our ACC article and his related conduct are so at odds with the norms of scholarly debate as to be almost sociopathic.
At IACCM’s recent European Conference held in London in June, a Panel Discussion was conducted entitled “From Obstacle to Enabler: Legal is now the new lynchpin of better deals.”
The panel consisted of three General Counsels all from very different organisations and all working in different jurisdictions. The consensus amongst them was unanimous, to be an effective General Counsel, you need to be fluent in business and commercial excellence.
Many IACCM members are lawyers and as Tim quotes in his blog, many are members precisely because the IACCM provides a fresh and enriching outlook in the field of contracting.
I think it is indeed fair to say that many of the “tips” that are cited in the ACC article relate to the anticipation of problems; as we know, those who focus primarily on issues of risk consequence, significantly undermine the value that contracts can deliver.
As is borne out from IACCM research, today’s negotiators wish to focus on areas of cooperation, economic exchange and planning for the future. Is the reference to “no-holds-barred negotiations” really concurrent with the vital importance of cooperation and collaboration in international contracting?
I personally don’t see Tim’s Blog as an “attack”; simply the presentation of a differing and very relevant point of view.
Thank you for your comment, but you don’t understand the point of my post.
I’d be happy in some other context to discuss the merits of Tim’s general observations. But that’s not the issue. Instead, my main objections are that (1) he criticizes our modest and on-point ACC article for not being an entirely different article and (2) he criticizes it in a way that shows that he made no attempt to understand what we say in the article.
I’ve written three books, dozens of articles, and 1,700 blog posts, and I’ve exchanged umpteen thousands of observations on on this blog, Twitter, and LinkedIn, and I’ve never been subjected to this sort of misconstruing of my work. You won’t find in anything I’ve written anything like this post.
That’s the issue, not whether Tim separately has valid points to make.
But while I’m at it, I find it troubling to have you denigrate “the anticipation of problems.” Every kind of advice likely focuses as much on avoiding problems as it does achieving goals. The two are inextricably linked!
Consider what I do: I figure out how to say stuff clearly in contracts. Necessarily, that involves considering in excruciating detail the ways that suboptimal language can get you into trouble. You have to pay attention to avoiding risk!
Now, let me offer an example that gets to the heart of why I had to do this post. You say, “Is the reference to ‘no-holds-barred negotiations’ really concurrent with the vital importance of cooperation and collaboration in international contracting?” You’re alluding to the second paragraph of point 10 of our article. It’s couched as a warning: that no-holds-barred negotiations can poison relations. I know I sometimes write in an understated, allusive sort of way, but reading that as an endorsement of no-holds-barred negotiation represents a failure of comprehension on your part.
Taking part in the marketplace of ideas requires understanding what the other guy is saying. You misunderstand my post, and you misunderstand my article. Similarly, Tim didn’t even begin to understand our article. If one isn’t willing or able to understand what the other guy is saying, one should be careful about taking swipes at the likes of me.
Surprise disclosure: I’m a years-long fan of MSCD and Ken Adams and strongly agree with his approach (essence: be clear!) while sometimes disagreeing on this or that.
At first I thought this was a tempest in a teapot, falling under the heading, ‘no harm, no foul’, but the more I reflect, the more I see Ken’s point.
Falsely saying that a restaurant has a filthy kitchen is dirty pool. Saying, for another example, that advocates of comprehensive clear drafting don’t appreciate the need to avoid, rather than stir up, disputes is also dirty pool.
I notice that Tim Cummins’s post says in part: ‘High performing lawyers are strongly focused on reputational issues and ensuring that the deal and the counter-party are ethical, that the business relationship is sustainable and that local customs or practices will not threaten integrity’.
Tim Cummins, meet Tim Cummins.
I think your response to Mr. Cummins hit piece was generous. Perhaps I was biased by the time I read his post. In my reading, not only was it not focused on a response to your original post, but his commentary borders on the pedantic: “The smart lawyer understands that cycle times are sensitive and that failure to address this issue will damage their credibility and lead either to loss of business or to the rest of the organization working around them.” Not to mention the self serving anonymous shilling at the end “[IACCM’s] selected focus though is precisely the reason why I personally find IACCM so enriching for lawyers when compared to other corporate lawyers associations”. Given the thoughtful, erudite discussions generally brought up on this blog, responding to the meretricious musings of Mr. Cummings is a waste of your time and talent.
Did you know that Tim cummins is a scientologist? The “church” of Scientology is a big fat long con. I googled “Tim cummins” after reading today’s post at The Underground Bunker, which is dedicated to exposing the crimes of the church of Scientology. See it here
Tonyortega.org
I know nothing about drafting contracts and the other stuff you write about. I’m writing to you because I’m interested in cons and con men. You need to read today’s post and find out what Tim is up to now.