(Image via Getty)
We all know someone who does it. Maybe it’s a co-worker. A boss. Vendor’s counsel. The biz dev guy down the hall who thinks he’s freaking Faulkner. Regardless of who it is, if you’re done with useless AF legal comments (“UAFs”) on your contracts, this one’s for you.
So, what constitutes UAFs, you may ask? They are comments that add ZERO value to the draft, and in fact, have just added NEGATIVE value since some unsuspecting fool (aka me) expended time and brain function reading them.
There’s an unwritten understanding between us in-house counsel types that regardless of how much we gnash our teeth and insist that something is a deal breaker, at the end of the day, we just want to get the deal done. Why? Because we’re shamelessly competitive creatures or we’re highly motivated to do our jobs (i.e., our equity is tied up in company performance, so yes, we need that deal to close).
But every once in a while, someone doesn’t get the memo or they’re having a tragic day and a draft comes back riddled with UAFs. It’s galling, really. Because this is the kind of time-wasting, passive aggressive crap we expect from our business partners. Not from someone who purportedly earned a legal degree.
So, I invite you to join me in waving the proverbial middle finger at some of my favorite UAFs of 2019:
• Adding defined terms without adding their corresponding definitions: Hey slop show, what are you, a business person? Did you really just drop in “Jointly Developed Intellectual Property” and think nobody would notice? Grow up, Peter Pan.
• Using the wrong defined terms: If you started out your life as a “Supplier” in the recitals, then it’s not a good look to have a mid-contract crisis and become a “Provider” on page 16. Bonus points if you use the prior customer’s name instead of ours. I always like to see what our competition got and argue why we should get more.
• Adding a bunch of “wherefores,” therefores,” “heretofores” and my personal favorite — “for the avoidance of doubt” — to the contract: This just shows me you’re not confident in your legal writing so you’re trying to dress it up with word accessories that went out in the early nineties. Stop doing this. It’s time to put away the hemp necklaces and scrunchies.
• Adding a “make this mutual” comment: This is even lazier than “for the avoidance of doubt.” Particularly when it appears in a section where you may not be entitled to a mutuality standard. For example, if our company is getting a rep on the equipment you provide and we’re not providing any equipment to you, there’s about a zero chance you’re getting a mutual rep. Because we’re not providing any equipment, Einstein. Now, maybe I’d consider a rep regarding our use of the equipment in a manner not proscribed pursuant to the specifications. Maybe. But that’s not mutual. Besides, writing “make this mutual” ensures that I will ignore your comment and disparage your half-ass mark-up to my internal clients.
• Cutting and pasting your language into the contract: It’s one thing to add data privacy language where there previously was none. It’s another thing to cut and paste your confidentiality section over ours. We agreed up front whose form of contract we’d be using, right? You lost the coin toss, friend. Now you have to live with doing actual legal work, which means reading through the confi section and making sure you have everything you need and adding a sentence or two if you don’t.
• Taking a simple concept and rewriting it so that it says the same exact thing. Only with more words. Now ask yourself, did adding those two adverbs change the meaning of the section? Will you sleep better at night knowing you saved us all from an interpretation disaster? If the answer is no, then resist the urge to rewrite language “just because” or “because you think is sounds better.” I know, I know. We all have our favorites. Just like we prefer our Mom’s home cooking. But just like I would never roll up to your house at Thanksgiving with a foil-covered dish of my Mom’s bacon-stuffed masterpiece, resist the urge to reduce legal language to your comfort food. Because if you do this, I will blast you back to bedrock when you try to pass it off as a “clarification.” If you can’t explain what that clarification is, then I can guarantee your business partners will side with me that we’re just trying to get a deal done, and you’re holding up the process. Whomp whomp.
• Leaving (strategic or snarky) comments intended for your internal team in the draft. I know, I know. It happens to the best of us. We resort to highlighted draft headings and dire email warnings to our partners and then every once in a while, one goes out with internal comments. Okay, no big deal. But woe to you if you left a stray “who do these guys think they are?” or “what are these guys trying to pull?” Because I will get everybody on the phone and answer these questions for you with no sense of irony. Use some self-restraint when commenting internally. You’ve taught your people to dance like no one is watching, but write like one day they’ll be deposed, right? Take your own advice.
Okay, let’s make this interactive. I’ll post this article on Twitter. I stopped doing this a while back after some particularly annoying hate mail. (Dear sir, I do appreciate your perspective that I’m the worst thing to ever happen to the legal profession. But that’s unfair. You know Kim Kardashian is in apprenticeship to be a lawyer, right? So, you, sir, can go suck eggs). For the rest of you, let’s get interactive. Email me with your favorite UAFs. Bonus points if you use a hilariously appropriate GIF.
Kay Thrace (not her real name) is a harried in-house counsel at a well-known company that everyone loves to hate. When not scuffing dirt on the sacrosanct line between business and the law, Kay enjoys pub trivia domination and eradicating incorrect usage of the Oxford comma. You can contact her by email at [email protected] or follow her on Twitter @KayThrace.
