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Jon and I go way back. To the dawn of time when dinosaurs roamed the plains and I first arrived at this company and people called me Lawyer Barbie. To my face. Lucky for Jon, he wasn’t one of these guys, but rather the one who told me about this nickname so that when someone addressed me as such, I was prepared with my best “wish a d**k would” brow. Which is why Jon is one of my favorite people. And he’s still breathing.
The problem with Jon is, he spent his formative years at a small company without an in-house attorney. He got used to being his own lawyer. It took me a solid three months to convince Jon why I was a necessary part of the process and another six to break him out of some tragic habits. But one I’ve never been able to make much headway on is Jon’s need to include touchy-feely aspirational language in his contracts.
Flipping back through some of Jon’s oldies, here are a few of the gems I found:
“The parties agree they will work toward negotiating a new agreement.” Cool, cool, cool. I’m working toward getting my pre-baby jeans to fit again. No defined time period on that. Or firm commitment. If I get there, cool. If not, I’ll just wear yoga pants or something.
“The parties agree it’s in their best interest to develop a process surrounding the measurement of tool life.” Excellent, my husband and I agree its our best interest to eat more kale and we should probably get on doing something about that.
“The parties agree to meet to discuss how they will conduct business.” I don’t even have a pithy retort for this one. I just hate how useless it is.
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Granted, I’m not the most sympathetic ear when it comes to adding standards like “commercially reasonable efforts” or “good faith” to agreements because while I agree these are recognized concepts, I think business partners put far too much emphasis on the importance of these. As if agreeing in good faith to renegotiate the rising cost of resin is really going to be the thing that gets you over the inflation hump.
But Jon’s special brand of what he calls “I want to make them feel good” language drives me nuts. Legal contracts aren’t meant to make you feel good. Never once has anyone said to me, “My god, Kay. I’m so glad we had that supply agreement in place. I sleep better at night.” Or, “That lease makes me smile every time I pull it out of my drawer.” You know why? Because to business partners, contracts are a necessary evil. They’re basically the paper version of colonoscopies: they can save your bacon, but everybody hates getting one done.
Annoyance factor aside, I think Jon’s language introduces ambiguity into the contract that ain’t nobody got time for. If you ever get to that forsaken crossroads where you’re before an arbiter or judge explaining the intent of your language, you do not want the words “the parties agree it’s in their best interest” following you around like a bad penny.
Recently, Jon’s Hallmark-inspired vagaries have taken on even a more upsetting quality. His team has moved toward percentage-based targets, i.e., the team will agree to “commit to work toward purchasing X percent of its requirements” in a given category. Anyone else just throw up in their mouth?
When I ask Jon straight up if this is a commitment to purchase. He says it’s a target with teeth.
I try again. “Commitment or target?”
“Both,” he responds.
“Nuh-uh. That’s like having a vegetarian meat lovers pizza.” Note, I actually said that, but only because Jon was between me and lunch. And we go way back.
“You could have a meatless meat lovers pizza.”
“Not the same thing,” I retort. “You can’t have real meat on a vegetarian pie.”
“You could have meat on one half and veggies on the other.”
“Then it would be a half-meat lovers, half veggie. Not a meat lovers. What else you got? I can go all day.”
And we go back and forth until Jon finally admits he wants it both ways. He wants a non-commitment-based target paired with commitment-based language. He wants to give a false sense of security where there is none. And that’s not because Jon’s a bad guy; he isn’t. But he’s stuck in that weird sugar coating of reality where our ilk fears to tread.
As we all know too well, we are in the business of compromises, of drafting language where you can have your meat lovers pizza and eat it too, where risk can be split and so can profits. So why not here, the business demands? But you already know the answer, you understand the inherent conflict in Jon’s ask. It’s not a question of your drafting skills. It’s a question of the logical universe coming apart at the seams if you do it. So, you don’t do it. Instead, you help Jon, and good business partners like him, wrap their heads around their own asks. You help them eliminate the ambiguity, not compound it by hiding it in the language.
And if you’re feeling saucy, you might just throw in a pizza metaphor or two.
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.