My core seminar is the “Drafting Clearer Contracts” seminar. I’ve been doing it for, oh, eleven years, as both public and in-house seminars. I do more of them with each passing year. It’s humming along nicely.
I’ve also started doing another seminar. The marketing materials describe it as “advanced,” but the more specific part of the title is “An Intensive Program in the Categories of Contract Language.” (“The categories of contract language” is how I refer to use of verb structures in contracts; to get a flavor of what that involves, check out these blog posts.)
I’ll be doing the advanced seminar in Toronto on 25 October 2016, from 9:00 a.m. to 3:30 p.m. (here), and I’ll be doing it for the first time in the U.S. in San Francisco on 8 December 2016 (here). Since it’s still new, I thought I’d tell you a bit about it.
I did the advanced seminar for the third time ever in Vancouver on 27 April. It consisted of three components, namely a multiple-choice quiz, discussion of “cutting-edge” issues, and analysis of a sample contract. Here’s what I have in mind for each of those components:
The Quiz: The quiz allows us to discuss not only which answer to a given question works best, but also why the other answers don’t work as well, so you see the full universe of possibilities. But doing this sort of quiz on the fly isn’t ideal. That’s why I intend that in Toronto and San Francisco, we’ll start the session by giving everyone 30 minutes to do the quiz online, on their phones or computers.
The Cutting-Edge Issues: In this part of the session we discuss those categories-of-contract-language issues that I have the most trouble with. I appreciate that this can be disconcerting, as it involves my acknowledging that sometimes there’s no clear-cut answer. But a little of that can go a long way, so in Toronto and San Francisco I’ll make this part shorter.
The Sample Contract: In Vancouver I used a new contract—publicly available commercial “terms and conditions” of a global technology company. In Vancouver I was still getting used to it, but by the time we discuss it in Toronto and San Francisco it will be an old friend. It’s an effective showcase for standard varieties of verb-structure dysfunction.
The Vancouver seminar reminded me of a session with graduate students. Compared with the regular “Drafting Clearer Contracts” seminar, there was way more interaction, and at a more advanced level. (Hey, that’s why it’s called “advanced”!) And inevitably, it was a work in progress. So some participants found the seminar helpful, while others found it too unstructured. The changes I have in mind for Toronto and San Francisco should make things more buttoned-down.
I continue to think that the categories of contract language is worth a separate seminar. Determining the core function of a contract provision—for example, whether it should express an obligation or a condition—is the starting point. Get that wrong and you greatly increase the odds of unhappiness down the road. Everything else is, to a greater or lesser extent, a technicality.
But this seminar will still be “advanced”: it’s for people who aren’t afraid of wrestling with contract language and can handle subtlety.
In closing, here’s what two people who attended the Vancouver seminar had to say about it. First, here’s participant Kevin’s take:
Ken’s advanced program was invaluable as I continue in my journey away from traditional contract drafting (i.e., dysfunctional) toward the modern approach (i.e., clear and concise). A certain level of rigor is necessary to effectively apply the MSCD guidelines. The practice, dialogue and mentorship provided in the advanced program is a terrific stepping stone in applying that rigorous process. Although not necessary to benefit from the seminar, to achieve the maximum benefit you should first read or be familiar with MSCD.
And here’s what participant Jacob had to say:
Drafting contracts is a combination of art and science. There’s a lot of poorly drafted contracts out there. As an in-house commercial lawyer, I review, draft and negotiate a lot of contracts. The best way for me to add value to my clients to draft concise contracts that clearly set out everyone’s rights and obligations. “Drafting Clearer Contracts” has helped me do just that.
I took the introductory course in November 2013, and it completely changed the way I review contracts. I now make sure to shall each party’s obligations and use must for conduct by nonparties, so there’s no confusion. I took the advanced course in April 2016, in preparation for a new role where I would be reviewing and negotiating a lot more commercial contracts. I feel much more confident in my abilities to do so thanks to Ken and his courses.
In the advanced seminar, I think the best way to add value to the participants is to have the participants do the quiz in advance, and then go into a discussion at the outset. I also in the future would like to see a possible workshop component where the participants can work together to review and amend a contract to make it ideal using Ken’s principles.
I only hope that he’ll offer even more advanced training. The better I get at making these contracts clearer, the better service I can provide my clients. After all, they should be focused on what their obligations are and it really helps them to know what those are. Thanks to Ken, I make sure my clients know exactly what they need to do.
Regarding Jacob’s notion of further training involving reworking contract text more broadly, I think that requires a different approach. More about that in late 2017 …