As a deal lawyer, I have written, argued about, revised and finalized contracts for a living for the last 22 years. The irony is, the more experience I have, the greater my fear of making a mistake. I’m afraid of typographical errors. What if I write 1.00% instead of 10.00%, as the interest rate, especially when hurried by a bank client to get a deal closed with some last minute changes? Another thing I dread is to leave out a certain paragraph that is supposed to be in a particular kind of deal. I have bolted out of bed at 3:00 in the morning, gone downstairs and hooked up remotely to the office just to make sure I remembered to put in a promissory note signed just the day before a certain sentence that the bank needed to protect itself against some future harm. Perhaps the worst anxiety I have is I’ll make a more subtle mistake, that I’ll write something that everyone at the time thought was clear, but that 2 years later, read cold on a Monday morning in the bright light of day, is, well, not so clear, but in fact ambiguous in light of a recent event that this contract provision was supposed to cover. I’ve come to believe that the written word is born in its own kind of original sin, that it is prone to waywardness and corruption, often regardless of our best intentions.
I’ve also thought a lot about and discussed with others recently the kinds of ambiguity we often meet in a less formal setting, the kind of ambiguity frequently found in modern personal communications, the imprecision inherent in texting, emails, discussion boards and blogs. These hasty forms of correspondence are much more likely to result in misundertandings than, say, in a typical loan agreement. We do much of these activities on the fly, not pausing for significant reflection as we read the texts of others, responding quickly just to keep up with rapidly evolving discussions, often without considering at length our own attempted contributions or the context in which we write. We often think we have ready made answers that can merely be plugged in to most any conversation. We might say something trying to help or understand, but this communication turns out to have been awkward, easily misunderstood or ill-timed. It’s easy to blame the medium or forum for our misteps, or even the recipient who took offense, rather than to reconsider our own positions or ideas. I’ve certainly sent an email or posted a comment that I realized later was half-baked or stupid or easily misinterpreted, and I can’t take it back.
Tomorrow evening I begin teaching Contract Drafting as an adjunct professor at Emory Law School. Precision, as you can imagine, is one of the main concerns of the course. In one of the class assignments, students are supposed to write a representation contained in a loan agreement that is made by a borrower to its bank designed to smoke out and disclose any pending lawsuits against the borrower, the bank being unwilling to make its loan if it turns out that any significant lawsuits might be on the horizon that could impair the borrower’s ability to repay the bank. Here’s how a typical litigation representation would read, as served up by a bank’s attorney in the first draft:
“Except as set forth in Schedule 3.5, no litigation is pending or, to the Borrower’s knowledge, threatened, against the Borrower.”
While what follows might look like mere tedious arguments lawyers like to make just to drag out their billable hours, it’s a painful, necessary example of the process of assisting two sides in better communicating their positions and expectations. It’s a necessary evil of full communication and understanding. For example, just what is meant by “knowledge” in this sentence anyway? The borrower here is a corporation–how does a corporation have knowledge? Is it the knowledge of any employee? If the janitor comes across a threat scrawled on a bathroom wall against the corporation that he or she scrubs clean, is that something the corporation might be deemed to know and be required to disclose on Schedule 3.5?
“Except as set forth in Schedule 3.5, no litigation is pending or, to the knowledge of any of the Borrower’s officers, threatened, against the Borrower.”
This is better, but which officers? Do they actually have to know it, or should they have known it?
“Except as set forth in Schedule 3.5, no litigation is pending or, to the knowledge of the Borrower’s president, vice president or treasurer, threatened, against the Borrower. For the purposes of this representation, ‘knowledge’ means (a) such officer’s actual knowledge and (b) the knowledge such officer would have had after a diligent investigation in the exercise of her or his ordinary duties.”
And this could continue for yet a few more rounds, but as an act of mercy I’ll stop here.
My thoughts today are not directed at anyone other than myself. This is not a hint to anyone on this board or any other board. I’m meditating on my own textual sins here. I’ve just recently realized how hypocritical it is for me to be so careless in conversation with my friends and family while I’m so diligent to advise my clients every day to avoid ambiguity, to memorialize their agreements in the most precise wording possible, to take the necessary time to say it clearly, to think through the possibilities of how something could be misread, to consider the best alternatives to say exactly what we mean and to take the patient and painful steps of digging into the language we offer and receive from the other side to get a deal done. Don’t the people I care about also deserve the real effort it takes to reach a true meeting of the minds, to reach agreement, to get to “yes”?