Ken Adams: Word Miser
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Ken Adams
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Ken Adams cannot stand legal jargon. If a contract contains the word witnesseth, the transactional lawyer shudders. The old-fashioned phrase represents and warrants is another common culprit, a waste of time and energy, according to Adams.
“Using three words instead of one is a hallmark of legal prose,” Adams says, “but represents and warrants is pointless and confusing. Just say represents.”
The 48-year-old Long Islander from Garden City and author of the legal blog AdamsDrafting is leading a crusade to rid mainstream contract writing of the redundancies, archaisms and misconceptions that often lead to costly lawsuits over a minor drafting glitch.
In 2007, Adams prepared a 69-page affidavit on punctuation as an expert witness in a Canadian lawsuit between Bell Aliant and the cable unit of Rogers Communications Inc., a case widely known as “the comma dispute.” (Adams wrote later that most of the affidavit was attachments, and that the decision finally turned not on a comma but on the French-language version of the pact.)
In another case, the ambiguity of a single phrase led to a $6 billion battle against United Rentals by Cerberus Capital Management.
“Lawyers tell themselves fairy tales to convince themselves that all is well with contract prose, that legalese is more precise than standard English, and that abandoning traditional legal usage could be risky, given it’s been ‘tested’ by the courts,” Adams says. “But those notions have been thoroughly discredited.” Modern contracts weighed down by outdated English and traditional legal expressions are harder to read, negotiate, interpret and use as models, Adams says. It also makes them much longer than they need to be.
“The process is so bad,” Adams says. “Litigators were dragged kicking and screaming into the world of clearer writing 40 years ago. For transactional lawyers, that process is happening now.”
Watch Adams deconstruct a contract in Oracle Corp.'s proposed acquisition of Sun Microsystems (expand to full screen for greater legibility):
Adams, who teaches contract drafting at the University of Pennsylvania Law School and conducts writing workshops and in-house seminars in the U.S. and Canada, is sensitive to the difficulty foreign lawyers experience when required to draft contracts in English. The son of a U.S. State Department officer, Adams grew up in Europe and Africa. He received his undergraduate degree from the University of York in England before drifting into law school, following the path of his two brothers.
Adams practiced corporate law at major firms on both sides of the Atlantic. But it wasn’t until the summer of 1997, when he was in Geneva, Switzerland, that he started to research and write about the art of contract writing, which he says perfectly combines bookishness and practicality.
Adams left firm life in 2006 to focus full time on his research and published the second edition of his book, A Manual of Style for Contract Drafting, last year.
“There’s a mission out there that can’t be done from a lawyer’s desk,” says Michael Fleming, a partner at the law firm Larkin Hoffman in Minneapolis. That mission, he says, is “to teach the profession that its writing has grown into an abysmal mess in terms of contract drafting. We need someone to challenge that, and it can’t be done while in the profession and representing clients. [Adams] took a leap of faith to do this as a business.”
Fleming adds that Adams is “unafraid to stand up for his perspective, which isn’t unique in the law but is unique in terms of the fact that he’s unafraid to stand up for something that in itself isn’t representing a client, but rather an ideal of how to practice law. He’s unafraid to make clear that someone else is incorrect and why.”
Effecting change has been a slow, grinding process. Contract drafting often includes parties on both sides of the negotiation table, requiring lawyers at different firms to agree to give up years of precedent in favor of a single style manual. And many law firms are loath to devote the time and money necessary to train employees in a common house style of drafting, redraft existing templates so they comply with the chosen style, and (if there is enough volume) automate the process with document-assembly software.
Adams, having devoted years to refining his argument, remains undaunted.
“There’s no question that the ways things are done currently are completely dysfunctional and a waste on many different levels,” he says. “You have a choice: Am I going to speak up or not? That’s the position I’m in.”
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Posted by Charles C. Adams, Jr. - 4 months, 3 weeks, 1 day, 14 hours, 6 minutes ago
Great stuff!
Posted by Andy Wishart - 4 months, 3 weeks, 1 day, 9 hours, 37 minutes ago
A well deserved legalrebel. Excellent analysis of the Oracle Sun contract.
Posted by David L - 4 months, 3 weeks, 1 day, 8 hours, 20 minutes ago
Many foreign-trained lawyers step back in time when they come to the US. Two countries I have practised in, England and NZ, both made the switch to plain English 20 years ago, but in the US Adams is almost alone in his “crusade”. In US legal documents, with their quarter page sentences, commas play an absoutely vital role; put a full stop (period) and use lists! The drafter’s role is to document what was agreed. Well-drafted US legal docs still achieve that, but with unnecessary complexity (and extra time and therefore cost). But the real downside is that the old-fashioned method lends itself to obfuscation for those who seek this. I wonder whether clarity is simply not popular in a world where litigation and the threat of litigation rule.
Posted by Jack Levey - 4 months, 3 weeks, 1 day, 8 hours, 2 minutes ago
Ken Adams has reinvigorated my approach to contracts. I serve on a local bar association subcommittee that is drafting a form contract for commercial real estate purchases, and am recommending that the contract follow the approach recommended in Ken’s book. His book and his blog point out common problems and recommend practical solutions. Sometimes ambiguity is the result of poorly expressed thought; other times it results from poorly analyzing the contract’s goals. Ken will get you thinking about both, as well as organizing the contract for maximum efficiency, and eliminating unnecessary boilerplate. And though anyone but a transactional lawyer may not think so, the discussions on his blog are fun.
Posted by Pete Lochore - 4 months, 3 weeks, 1 day, 7 hours, 32 minutes ago
Well done! I completely endorse the comment from David L (no 3). As an Australian lawyer (LLB ‘03) I have been incredulous at my American colleagues use of prosaic, verbose and redundant terminology. This applies not only to contract drafting, but also academic writing. I know this because I completed an LLM at one of the top US schools.
I wish Adams every success.
For those interested, Siegel + Gale also has a legal simplification practice that works to translate legal documents into simpler, but equally legally effective, language.
Posted by Gideon Newmark - 4 months, 3 weeks, 1 day, 6 hours, 52 minutes ago
Hey Mr. Adams! “Represent” is not the same as “represent and warrant!” Now, it’s true that many lawyers probably use both when what they really mean is represent. However, a representation is a promise that something is true now, or was true in the past. A warranty is a promise that it will be true in the future. Thus, a representation and warranty is legally very different from a representation. Confusing, sure. Legally irrelevant? Not on your life.
While I agree with your mission of reforming contract jargon, please get it right!
Posted by Eric - 4 months, 3 weeks, 1 day, 6 hours, 23 minutes ago
Gideon, before feeling too smug, I suggest posting your view on Ken’s blog (adamsdrafting.com) and seeing what he has to say about it; I can guarantee you that Mr. Adam has gotten it right.
I attended a day long seminar with Adams; invaluable! Guy is sharp as a tack; I’ve completely changed the way I draft contracts.
Posted by min zerm - 4 months, 3 weeks, 1 day, 5 hours, 41 minutes ago
It’s about time. Thanked goodness for professors and lawyers (like Adams) who are willing to eliminate the unnecessary pomposity of the language in legal documents; primarily to set themselves apart from the “other”. Just say it like it is…
Posted by David S. Cohen - 4 months, 3 weeks, 1 day, 3 hours, 37 minutes ago
Ken writes one of the best law related blogs on the internet. His book is top notch as well.
Ken’s idea that contracts benefit from simplification is meritorious. In addition to an attorney’s professional obligations, it is important that they deliver a useable document to clients. A long, unclear document full of needless “legalese” is neither helpful nor useful to clients. A lawyer who adheres to Ken’s drafting principles will go a long way to providing his clients with clear, useable, and easy to understand documents.
Posted by Ken Adams - 4 months, 3 weeks, 23 hours, 54 minutes ago
Anyone who’d like to know more about my views on “representations and warranties” could consult an item I just posted on my blog: http://www.adamsdrafting.com/2009/09/18/rs-and-ws-once-more-with-feeling/.
Posted by Czar - 4 months, 2 weeks, 5 days, 7 hours, 12 minutes ago
I am very lucky that concise easy prose was a focus of my legal writing courses in Law School. It has proven to be quite helpful in the real world.
I applaud your efforts Ken!
Posted by Debora Pinkas - 4 months, 2 weeks, 5 days, 5 hours, 30 minutes ago
Next to caffeine, Ken Adams’ “A Manual of Style for Contract Drafting” is the most useful tool I have in my legal tool kit.
When will the rest of the legal profession catch up with him?
Posted by Thomas L. Bowden, Sr. - 4 months, 2 weeks, 4 days, 2 hours, 9 minutes ago
Ken - Excellent video. As we have discussed in prior correspondence, there are many archaic and wordy constructions that can be stripped out with a simple “search and replace” sometimes cutting pages from the total document length, e.g. “In the event that…” Couple that with some straightforward techniques like eliminating the passive voice wherever possible, and you are well on the way to better readability. In my corporations course at Penn back in, oh maybe ‘81 or so, Jim Freund (autor of “Anatomy of a Merger”)from Skadden Arps gave a guest lecture and touched on drafting style. He took a standard intorductory paragraph (like the one you used here) and tore it to shreds, leaving less than half the words but all the meaning. We need more of this. Thanks for manning the ramparts!
Posted by Thomas L. Bowden, Sr. - 4 months, 2 weeks, 4 days, 2 hours, 4 minutes ago
P.S. - please pardon my typos! - and here is another pet peeve. If you need a list of definitions, put them in an appendix - not the first section. Then, don’t define terms in mid sentence by referring to the definitions, e.g. (as used herein Red shall have the meaning given in Section 1.1(a)(14) hereof”). Just capitalize the terms. I have even seen examples of this that were circular, and useless.