Monthly Archives: March 2007

My admin, John Stockton

This wonderful woman is my administrative assistant. You’re correct. She is not John Stockton. John Stockton is a 6’1″ former point guard for the NBA Utah Jazz. My admin stands about 5’5″ and, to my knowledge, does not possess much “round ball” experience. (As I write this, I’m enjoying a funny visual of her driving the lane against Yao Ming.)

For those of you who are not fans of U.S. basketball, John Stockton wasn’t flashy or outspoken. He didn’t possess overwhelming physical skills. And, he was a bit average in the scoring department. Yet in 1996, he was voted one of the top 50 players in NBA history. How did he accomplish this? Stockton’s special talent was that he elevated the game of everyone around him. He was one of those athletes who was seemingly always around the ball and he possessed that unique ability to know where he was in relation to everyone else on the court. Above all else, he was selfless. He made a career of giving teammates the opportunity to score rather than taking the shot himself (15,806 times to be exact).

Although she is not John Stockton, my admin plays the same role in our organization. She seems to have a sense of what issues need to be handled before anyone else is even aware they exist. She rarely asks for direction. Instead she identifies a problem and fixes it. She’s a mentor (formal and informal) for many in our department. She’s a cheerleader. She’s a diplomat (although she can throw some elbows when needed). And, she is constantly taking on significant new responsibilities.

It took some time for me to fully appreciate the value she provides as I’ve operated most of my career with little need for administrative support. But after we had worked together for about three months she did something that made me take notice. What she did was clear my calendar of all Friday afternoon meetings for the rest of the year – without asking me. When she told me this my initial reaction was less than positive, but I decided to listen to what she had to say. Her explanation was that she had observed the way that I work (multiple working locations and non-stop meetings) and felt that I needed to block out time to think strategically and work on longer-term initiatives. Rather than being upset that she didn’t consult me, I welcomed her proactivity. It took courage for her to do this, especially with a new manager. But, she was absolutely right.

Since then, I’ve frequently marvelled at how she understands the needs of the organization, assesses what needs to be done and makes it happen. And, she is not a singular example. We have many other support personnel who act the same way. Often without notice or fanfare, they help us to always perform at a higher level.

All of which makes me wonder about the cranial capacity of managers who are described in articles like this.

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Contracts with clarity

After many years in the profession, I’m convinced that the most difficult skill for any lawyer to master is the ability to write with simplicity and clarity. I believe there are several reasons for this. The first is that under the ethics rules of most bar associations, lawyers are charged with “zealous” representation of the interests of their clients. Not “good” or “satisfactory” or “adequate” – but, “zealous”. As a result, most attorneys draft agreements to cover every possibility no matter how remote or unlikely.

A second reason is that attorneys seldom create agreements from scratch. Instead, in the interests of efficiency, we build off existing templates and add additional language covering any contingencies that we have experienced or imagined. When the next attorney uses your template, he or she rarely challenges the necessity of the additions that you have made. With each revision, the agreement grows in size and complexity. It’s not dissimilar from the process of creating some software.

Now layer onto this a third factor – fear of malpractice. Those stories about a minor drafting error resulting in a significant damage award are not just apocryphal.

The result is lengthy and verbose documents that create more ambiguity than they resolve. A classic example is the “force majeure” clause that you see in many agreements. Originally, it was intended to identify occurrences outside the control of the parties that would excuse non-performance – i.e. “acts of God”. Attorneys then decided to include a list to identify what specific events were intended. Rather than tailoring that language to each contractual arrangement, successive attorneys kept adding to the list – “just to be on the safe side”. I’ve seen agreements identifying “volcanic eruptions” as a force majeure despite the fact that the geographic location of the contracting parties has not seen this type of event since our long ago predecessors walked the earth.

Unfortunately, these habits are difficult to break. For me it wasn’t until attending a class on legal writing that I began to understand that the complexity of my drafting was in many cases not protecting my clients. Instead, it was creating ambiguity. And, in the contract world ambiguity begets litigation.

With this in mind, I have actively “encouraged” 🙂 my organization to create contracts that are models of clarity and simplicity. We owe it to our internal clients and especially our customers. I’m happy to report that we are making progress. With the support of outside counsel (one who understands the benefit of drafting clarity) and reliance on the SEC’s guidelines for Plain English” our team is beginning to roll out new forms of contracts that we will be using with customers this year. I’ll admit it is not happening at the pace I would like, but given the breadth of our company’s business and our many types of partner relationships, we have a large number of agreements to change.

To give you a small example of the magnitude of the change, here’s what one agreement used to say about ordering:

Ordering procedure
  1. Company may order Products or Services by:
    1. submitting an Electronic Order in the manner directed by Sun; or
    2. submitting a Purchase Order to Sun (and Company acknowledges that Electronic Orders for certain Products or Services may require to be supplemented by a Purchase Order); in each case specifying the Products or Services required and referencing the General Terms and applicable Exhibit numbers. By doing so, Company agrees that the Order is governed by the Agreement.
  2. Sun may accept the Order by:
    1. issuing an Order Confirmation to Company; or
    2. shipping the Products or initiating performance of the Services required in the Order.
  3. The identification of the Products or Services in the Order, Service Contract and any Order Confirmation, together with any applicable Service Listings or SOWs and the Agreement, will create a binding contract between Company and Sun for the purchase of those Products or Services.

Here is what we say now:

Placing an order
To buy a Sun product or service you must send a purchase order to us or, if you meet our requirements for placing orders electronically, you may send your order to us electronically in the way we tell you.

How we accept an order
We will show that we have accepted your order by:

  • shipping the product;
  • starting to provide the service; or
  • sending you a written acceptance.

You agree that these contract terms apply to any order we accept.

Notice any difference?

By the way, just to make sure that our efforts resulted in truly simple and easy to understand contracts, we did something else. We sent our agreements to an organization in England called the “Plain English Campaign”. This organization is an independent group with members in over 80 countries focused on fighting for plain English in public communications. The result? The Plain English Campaign reviewed our agreements and awarded them a “Crystal Mark” certification. It’s a sign that the terms meet the Campaign’s criteria and are considered a model of simplicity and clarity. We think our customers will feel the same way.

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