When You Don’t Care About Quality

You might have seen that this week, the ACC’s Corporate Counsel Now published my article Merger Agreements Are Poorly Drafted. I have some further thoughts. (In offering them, I assume you’ve read my article.)

What Is

What explains the shortcomings in the Norforlk Southern merger agreement? I see two possibilities. One is that the law firm in question is unaware of standards for making contracts clear, concise, and relevant. That seems unlikely.

The other possibility is that the law firm thinks its contract drafting is somehow immune to external standards—what matters is the law firm’s own standards, and those standards will always be the only standards that matter. This seems the more likely possibility.

But that’s not a viable perspective, if you care about quality. Here’s the relevant part of my article:

[W]e must have a path to becoming better-informed consumers of contract language, so we know how to say clearly and concisely whatever we want to say in a contract. That’s now possible, as in recent decades we have developed standards for contract language that are comparable to those we apply to other kinds of writing.

If you ignore changes in standards, and those standards are legitimate, you contracts will fall short.

How the world has reacted to MSCD shows that MSCD offers a legitimate set of standards. Simply ignoring MSCD doesn’t mean those standards don’t apply. Those who assess your work will decide what standards apply, not you.

If my critique of the Norfolk Southern merger agreement doesn’t make sense, an obvious recourse would be explain why, either in private or in public. But in my years of offering critiques of high-profile contracts, no one has ever offered such a response. That’s consistent with the way my ideas are generally given a wide berth in the marketplace of ideas, as I note in this 2020 blog post.

What Should Be

So as far as I can tell, the law firm in question created a contract that meets its own standards. In the process, they ignored more modern standards, namely those articulated in MSCD. And I’d be astonished if anyone were inclined to respond to my critique in any way.

Attributing motivation is an uncertain undertaking, but I suggest that the simplest explanation for this episode, and how organizations generally respond to contracts dysfunction, is that people don’t care about quality.

More specifically, individuals who work with contracts care about quality, but many of those making the bigger decisions—the administrators—they don’t care. For the longest time, contracts have worked through copy-and-pasting, and changing that would be a bit of a nuisance. It’s simpler to ignore the dysfunction, the associated waste of time and money, and the associated risk. That’s why talk of quality from administrators has always seemed just that—talk. It’s performative. Slap an “excellence” label on your contracts and call it a day.

For all I know, the administrators might have gotten the calculus right. But unfortunately, working in a system that doesn’t care about quality is demoralising.

I feel strongly about quality If someone shows me I’ve make a mistake, I thank them, then I go about fixing the mistake. If tens of thousands of copies of MSCD have been sold, that suggests that plenty of others care about quality too. That’s not just a function of what’s required for an efficient contracts system. Instead, it’s also a function of being a good citizen, doing your part to make more effective a corner of the civic sphere.

I suggest we shouldn’t assume the administrators know what’s best. For one thing, segueing from copy-and-pasting to feeding copy-and-paste dysfunction to AI seems like a recipe for poorer quality and aggravated cognitive debt. It’s a warning sign that no one even bothers to offer even empty talk of quality any more.

So I’ll continue caring about quality. Why? For the reason articulated yesterday by a friend of the blog: “Over time, though, I think you’ll win the long game.”