Does it Matter if your Contracts are Grammatically Correct?

April 28, 2009 on 3:15 pm | In Contract Drafting | Comments Off

We put together contracts of many pages – often hundreds of pages. With that many words on paper, what are the odds that it is free of grammatical mistakes?

According to Inside Training Newsletter, sixty percent of all business correspondence contains one or more grammar or spelling errors. This is based on a study done by a developer of English writing software solutions, WhiteSmoke. The most common error in written correspondence is missing words. Nearly one third of the documents reviewed revealed that the writers failed to use all the words needed for a grammatically correct sentence. The words most likely to be missed are verb auxiliaries (be, have, do), prepositions (in, on, at), determiners (a, an, the, this), and nouns.

Take a look at the contracts you have written. Are they grammatically correct? Does each sentence make sense? Do they each have a subject and verb? With the current explosion of “text-speak” it is possible that some contract drafters wouldn’t know a misspelling without the help of spell check. What about using the wrong word? Does it make a difference if one of the parties is assigned the responsibility to ensure, assure, or insure that a particular task gets done?

I suspect that, given the length of most government contracts, it is the extremely rare example that does NOT contain some measure of errors. The issue becomes one of determining if the errors are significant or what might be considered “harmless” error. Are the responsibilities of the parties clear? Are there any ambiguities caused by bad grammar?

Just because some mistakes may be inevitable is no excuse to accept sloppy drafting practices. You owe it to the parties (as well as your standing as a professional) to contain the risk of a contract by making it as clear and error free as possible. Sure, use spell check, but don’t forget that spell check can still give you the WRONG word. Both “from” and “form” are legitimate words. Just not the same word!

Here are two tips to help you improve the drafting of your contracts:
1. Don’t assume that you know what the document says. We all become too familiar with our own work and we “know” what it says even when it doesn’t say what we think. Get a fresh set of eyes on your document. Do a peer review with a co-worker. Reading portions out loud can also help. When you are articulating the words, when there is a disconnect between what your eyes are seeing and your mouth is saying errors become more obvious. We joke about the saying – When all else fails – read the contract, but in this case it actually helps!
2. Take the time to review your boilerplate forms and clauses as well. We are often called upon to review such forms and we have yet to find ANY such standard forms that do not contain some grammatical error – and sure enough misspellings and missing words are the most common culprits. Use the same techniques – peer review, fresh eyes, and reading out loud.

Do not accept sloppy drafting. Use the tools at your disposal to improve your writing. Fix the errors in your contract. Seek clarity and accuracy. Your contracts are a reflection on your own professionalism. The odds are that you will not see your contract cradle to grave. Give your successor a break and write in complete sentences – with proper spelling and grammar.

I Lost My Best Friend

April 27, 2009 on 12:08 pm | In Tributes | 4 Comments
What Does the Best Contract Manager Look Like?

What Does the Best Contract Manager Look Like?

I lost my best friend Friday, and the world of government contracting lost one of the best contracts guys who ever plied the trade. We first met in 1987. He was the lead contract manager at a division of a company when I got transferred in as the legal counsel. Knowing we would be working closely together he made a point of introducing himself early-on. I was intrigued by his thoughtful approach to things – all things business and personal. He was very much a family guy with three kids and a young wife. He told me in that first meeting that he was an alcoholic many years sober. I didn’t understand until later that it was one way of holding himself accountable. That was one of many very admirable traits I would learn about this guy.

As the corporate world is wont to do, we both got transferred elsewhere and it was just natural to stay in touch. He would often call for my legal opinion on something and I would often call him on a contractual matter. We trusted each other. We knew that we both took our professions seriously and worked hard to improve our skills. He would tackle the tough issues, the difficult customers, and the hopeless files. And he would solve them. He didn’t always follow strict corporate procedures, but he would always do what was right. He didn’t always make friends with the program people. If they were trying to cut corners, deceive the customer, or just act illegally, he would put a stop to it. What? You ask! Program managers would do this? Please. Don’t be so naïve. We all know it happens. It’s not the rule – it is definitely the exception, but it takes great strength of character to stop it. And he did. Many times.

Our social lives crossed again in Denver, working for different divisions of the same company. We still shared notes, talked about what was going on in the office. We would talk about those fellow employees who could be trusted and those who could not. And he was always spot-on. He could judge character of another better than anyone I knew. I guess that’s what having such great character yourself allows you to do.

And he never lost sight of his priorities – God, Family, and Work in that order.

I recall one time when I was visiting Washington DC on a business trip. He was living in Dumfries, Virginia at that time. Not really next door, but not too far away. We had made plans for him to come up to the hotel so we could visit. He never showed up (and this was long before cell phones were so ubiquitous). I later learned that a family commitment had come up. He made the right choice and apologized profusely for hurting me –his friend. I told him that he had made the right choice, even if it wasn’t what he really wanted to do. He was just like that.

When my wife went into labor with our second daughter, we dropped our three year-old at his place as he had offered. She hung out with his older daughter and two younger sons. Not having any younger brothers she was exposed to some things that were new to her – such as potty time where the boys did it differently. She learned the word “penis”. I teased him about that privately every chance I got. I knew it embarrassed him, but he always took it good naturedly. That was just his way.

When he was transferred back east he asked if I would be kind enough to serve as his attorney in fact for his real estate closing – actually for he and his wife. When you do this you have to sign the person’s name, then your name and the words “his/her attorney in fact” Anyone who has ever been to a real estate closing knows how many papers need to be signed. So there I sat for what seemed an interminable time diligently signing form after form with both of their names followed in each case by my name and the legend. And I was honored to be asked by him to help him in this way. He so seldom asked for anything and he had done so much for me that it truly was the least I could do. I would have done anything he asked. But he so rarely did. He was left handed. At the closing the closing agent, both real estate agents, and the couple buying the home were all left handed. I was the only righty in the room amidst all those sinister people. There’s just something appropriate about that situation.

I later found myself in charge of the business operations at one of the company divisions. We had a tough customer, a complicated $80 million annual contract, and a plant shut-down staring at us. We had a corporate office that was very demanding and liked to change strategies in mid stream. They didn’t seem to appreciate that contracts can’t always turn on a dime. The lead contracts position would be a thankless job that few would be able to handle. The staff I inherited was simply not up to the task, and the one lead guy who might have been able to swing it had decided to move on. I picked up the phone and called my friend primarily to lament my situation. I casually commented what a shame it was that he was not available. He would be perfect for the job. Turns out – he could be made available and I finally got the chance to work directly with him once again.

I moved him and his family to Florida. We restructured the contract. We hired new contracts staff. And he excelled – as he always did and as I knew he would. There were others before this and after this who did not see him the way I did. He shared with me that he felt like a failure in some positions because he could not create the perfect contract as between his customer and his program folks. He was more of s success than he ever knew. His character screamed so loudly at those who had none that they could not appreciate what he was doing for them. They may not have liked what he made them do, but he saved them from great problems and headaches. Sometimes at great expense and heartache to himself. We would talk about these things throughout our respective careers. I loved this guy. How could you not?

What I couldn’t help him do was kick his smoking habit. He would go outside for his smoke break with a cigarette in one hand and his asthma atomizer in the other. He said they were unrelated. I asked him who he was trying to kid. He would shrug. He always took better care of those around him than he did himself. On one occasion he was letting the stress of a very difficult working situation get to him. I’m not sure if anyone else saw it the way I did, but our general manager told me to replace him. She was wrong. I couldn’t tell him why, but I sent him to the Employee Assistance Program to talk to someone. He didn’t need it, he thought, and he may have been right, but I had to get him to go without telling him why. Probably the hardest thing I ever did in my career. But he trusted me and he went. And we smoothed over the issues with the GM. I never told him what was behind it all, and he never asked. Whether he thought it was friend betraying him or not he never said. He just trusted me and I loved him for it.

He ended up taking a medical retirement after being the lead contract manager on an extremely difficult program – one where Congress gets involved and makes matters even worse. He felt very tainted by it all. He would call me and we would review his options given no-win situations between his management and his customer. I so desperately wanted to pull him out of that situation, but I couldn’t. I had started my own business and was fighting every day just to keep my own expenses covered. And then the routine hospital stays began. I could always tell – he wouldn’t respond to my emails. And yet he wouldn’t call to complain. He accepted his lot and refused to burden his friends. I tried to involve him in my business. I thought it would help him feel like he was still involved. He still had so much to offer. It was hard to tell sometimes which was bigger – his brain or his heart. But the gaps got longer and I would learn that he was back in the hospital.

On Saturday I learned that he had passed away Friday morning at home. His wife heard him in the bathroom and went to see if she could help. She couldn’t. He died there in her arms. As hard as this was for her, just a few hours later and he would have been all alone. She was grateful that she could be there. I am very regretful that I couldn’t be. He was a true friend, a great God-fearing man, a wonderful father, and a devoted husband. The full package of honesty, integrity, character. I will miss him.

My father always said that only the good die young. We don’t get many chances to find heroes in our lives. Damien was mine. No question about it. Vaya con Dios, my friend. I know that you are now in the arms of the Jesus you loved so much. You made me a better man for having known you. I now only pray that I can be as strong in my faith and in my character as you so that we can celebrate in heaven. You made your mark where it really counts – in the hearts of other men. And I thank God that he put you in my life. I’ll miss you terribly.

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