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This Week on The Web 2009-10-11 by jigordon
October 11, 2009, 9:32 am
Filed under: communication, contract management, contract terms, contract types, current events, fun, law, negotiation, risk matrix, SL Ed Series, TWoTW

These are the discussions that happened around the web this week – maybe you already read about them, maybe you need to again.  Come join the party on twitter (follow me here and you’ll participate in the conversation live.)

I also realized that many of you might have no idea what you’re seeing below.  Sorry.  These are “tweets”, 140 maximum character messages sent via Twitter.  Within the Twitterverse individual users follow others and have followers (think of it like overlapping Venn diagram circles).  To read a tweet, you have to wade through a bit of jargon used to make the most of the 140 character limitation.  “RT” for example, is shorthand for “Re-tweet” and the @____ is the username of some other individual on Twitter.  Combined together, then, “RT @_____” means that someone else wrote a tweet that I found important and I now want to forward along to my followers.  The URL’s are then also shortened by shortening services like bit.ly to make the most of the character limitation, too.  Lastly, you might see “hash” identifiers “#______” which are ways to tag tweets of a particular flavor for easy searching later and “<” which means that I am commenting on what came before it.

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This Week on The Web 2009-09-06 by jigordon
September 6, 2009, 9:32 am
Filed under: communication, confidentiality, contract management, copyright, current events, Five Fundamental Skills, information security, IP Indemnity, SaaS, trust, TWoTW

The things that happened around the web this week – maybe you already read about them, maybe you need to again.

I also realized that many of you might have no idea what you’re seeing below.  Sorry.  These are “tweets”, 140 maximum character messages sent via Twitter.  Within the Twitterverse individual users follow others and have followers (think of it like overlapping Venn diagram circles).  To read a tweet, you have to wade through a bit of jargon used to make the most of the 140 character limitation.  “RT” for example, is shorthand for “Re-tweet” and the @____ is the username of some other individual on Twitter.  Combined together, then, “RT @_____” means that someone else wrote a tweet that I found important and I now want to forward along to my followers.  The URL’s are then also shortened by shortening services like bit.ly to make the most of the character limitation, too.  Lastly, you might see “hash” identifiers “#______” which are ways to tag tweets of a particular flavor for easy searching later and “<” which means that I am commenting on what came before it.

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This Week on The Web for 2009-07-26 by jigordon
July 26, 2009, 7:32 am
Filed under: communication, contract management, contract terms, current events, employment, EULA, Five Fundamental Skills, risk matrix, TWoTW
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The Value of Testimonials by jigordon
July 20, 2009, 9:32 am
Filed under: communication, current events, negotiation, process

If you’ve not seen the latest CarFax commercials, they’re pretty funny.  Essentially, the buyer wants to see the CarFax report and the seller doesn’t want to give it to them.  Here’s my favorite:

Yet, as enterprise software buyers asking for references, this is essentially what we’re accepting from the vendor – a note from the prior owner.

Several years ago, I started to put together a list of folks I’d rather talk with and I’d love to hear your suggestions as well.  These include:

  • customers who never finished implementation (for any reason)
  • customers who discontinued maintenance in the last 12-24 months (I want to know the number as a percentage of total customers and I want names/contact details)
  • customers who are similar in size of implementation to me, but who had exceeded planned implementation time

As a customer myself, I would never hesitate to serve as a reference under these circumstances.  Would you?

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What You See is NOT Always What You Get by jigordon
July 9, 2009, 9:32 am
Filed under: communication, fun, process

Several months ago, I posted the backwards paragraph to demonstrate the immense power of the brain to fill in gaps or to make sense out of the nonsensical.  Understanding this brain functionality is important when you’re trying to communicate with others because of this difference between reality and perception.

But it’s not just words (the parietal lobe) but also the occipital lobe (colors and shapes) that can create this distortion.

So, what does all of this really have to do with contracts?  Well, besides communicating with others, the problem I’ve seen in the recent past has been an increase in the number of missing words in contract templates.  Now, I’m not talking about significant words – “liability” isn’t absent, for example.  It’s an article of speech – an “an”, “a”, “the”, etc – that’s forgotten… or a word improperly capitalized.  And your brain simply fills in the gap(s).

Of course, it might not be a big deal.  But can you see that there is a difference between “the Services” (with a defined term), a service, or a Service?  The Services could mean a group of behaviors, “a service” could simply be a single service component of the Services… or it could be a service separate and apart from any of the services.  Which means that “a Service” could be one of several behaviors, but not all of them.  The key here is learning to read in a different mode.  Similar to the difference in reading a contract compared to reading a fiction novel, copy editing is a completely different style designed to produce a different result.  Mastery of these different styles will help you become a better contract drafter and reviewer.

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Web TOS Amendments by jigordon
June 10, 2009, 9:32 am
Filed under: amendment, communication, current events, EULA

Eric Goldman on “Amending this Agreement whenever we want” (the Harris v. Blockbuster case from earlier this year).  Dead on, as usual, so I’ll repeat his mantra here:  “STOP PUTTING CLAUSES INTO YOUR CONTRACTS THAT SAY YOU CAN AMEND THE CONTRACT AT ANY TIME IN YOUR SOLE DISCRETION BY POSTING THE REIVSED TERMS TO THE WEBSITE.”

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(The) Definite Article by jigordon
December 9, 2008, 9:32 pm
Filed under: communication, contract format

Ken Adams is discussing definite articles over at his blog today.  The question is whether it’s appropriate or necessary to include the “the” before a defined term such as Vendor.  I’ll let Ken explain it in his own words.

In the ensuing small comment debate, I wrote a second response that apparently “muddied the waters” of the discussion.  But I felt the last argument had merit and I wanted to discuss it further with you.

Here’s my second (unpublished) post:

Oh, I agree… it IS semantics. But when I’m drafting/reviewing/editing 200+ documents/year, sometimes that’s all I have. 🙂

My average template software license and services agreement is more than 35 pages long. If my opponent decides that they want to change VENDOR to ACME, I have to be honest and say that I don’t want to have to go through the document again to remove each instance of “the” in front of ACME – because most likely, they’ve done it about 2 or 3 revisions in (when it’s not as easy to just undo and re-do properly).

In thinking about it more, however, aren’t we actually converting the defined term into a proper noun? And in doing so, putting a definitive in front of it is actually incorrect for the same reasons why you don’t say “The Acme” or “The Jeff”?

Specifically, I think that the use of a defined term might convert that term into proper noun… and even if it doesn’t automatically, it would if the item it’s defining is a proper noun.  In other words, “Vendor” would be  a defined term that would also now convert into a proper noun because it’s serving as a replacement for “Acme Corp”, which is already a proper noun.  On the other hand, “Services” might not be a proper noun, as the term Services is typically defined as “the work performed by the Vendor”.

Thoughts?


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CIA’s Approach to Problem Solving by jigordon
September 11, 2008, 9:32 am
Filed under: communication, negotiation, process

Banner, a marketing agency in the UK, recently posted the Phoenix List*, a list of the questions used by the CIA when trying to solve a problem.  Banner was approaching it from a marketing perspective, but these same questions can be used to solve a contracts or negotiation problem, as well.

(*Being the child of the 80s that I am, I would like to believe that this was a creation of the Phoenix Foundation… better known as MacGyver‘s employer. 😉 )


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LegalTED by jigordon
September 4, 2008, 9:32 pm
Filed under: blog, communication, conference, negotiation, process

If you’ve never heard of TED, you should check it out!  (If you’ve gone to TED, please let me know.)

Anyways, TED’s an annual conference designed to bring the best thinkers together from the entire world to solve some of the world’s most pressing problems.  These folks are encouraged to speak with the other TED attendees for 18 minutes.  Then the TED Prize is awarded to three individuals as a way to grant their “one wish to change the world”.  You can check out their videos on the TED site to see some of the speeches that have been given over the years.  Pretty awesome.

Victoria Pynchon, author of the Settle It Now Negotiation Blog put pen to paper today to ask why there isn’t a LegalTED – a conference focused on finding new and innovative ways to not only resolve disputes, but also prevent them from happening.  I commented to her that I’d had the same idea for awhile now, but I simply didn’t know how to express it the way she did.

If you’re reading my blog, chances are that you spend a significant portion of your day trying to resolve disputes (real or perceived).  You waste time on repetition of the same tasks over and over (between different parties, sure, but the same task nonetheless)… and you fight many of the same battles in seemingly endless succession.  Isn’t it time to find a better way to get the job done?

Head on over to Victoria’s site and contact her through the comments to let her know if you’re interested in helping out.  It’s gonna’ take some work to get this off the ground – not the least of which is trying to get TED interested in allowing us to piggy back off their success (so if anyone knows the folks at TED and can connect us, that would be great).

I look forward to working with you on finding new ways to solve our old (and tired) problems!


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Suffrage by jigordon
August 26, 2008, 9:32 pm
Filed under: communication, negotiation

I tend to shy away from political topics, but Victoria Pynchon has an excellent post on the topic of suffrage (the ability to vote, and more specifically, the right for women to vote). Oh, and her reference to Mad Men is great, too.


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