In episode 054 of The Civil Engineering Podcast, Chris Knutson interviews Ken Adams, an expert in the world of contract drafting on how to master the language to create clearer engineering contracts.
Here are some of the questions Chris asked Ken:
- What do you consider is the essence of a contract?
- How do you suggest that civil engineers should approach reviewing engineering contracts?
- What are some challenges you see with traditional contract drafting?
- The National Society of Professional Engineers (NSPE) has also produced a series of standard contract documents for engineering design and construction projects, how do these rate with regards to language and clarity?
- What is your opinion of general trade organization contracts?
- With regards to schedule provisions in contracts, how standardized do these tend to be?
- What does an engineer or contractor need to be aware of with regards to imposed contract requirements?
- What are indemnification clauses and what do engineers need to know or be aware of with regards to them?
Here are some key points discussed in this episode on Engineering Contracts:
- A contract gives the parties an opportunity to determine and state as explicitly as necessary what each expects from the other.
- The problem with traditional contract language is that it results in delay and confusion at every stage in the contract process. It also creates confusion that can lead to fights.
- Contract language is limited and stylized. It’s best if you leave it to experts.
- Copy and pasting or inserting information to a contract is probably not the best route to go with standardized contracts. It is advisable to get legal counsel to take a look at the language of the contract and to make sure that it is relevant and applicable to the situation that you are truly in.
- Schedules tend to be different from project to project, but is still part of the contract. If something doesn’t make sense in the contract it won’t make sense in the schedules.
- Hold harmless is a mystery phrase with no settled meaning. Do not use the phrase indemnify and hold harmless, which is utterly standard. Instead, just use indemnify and say what the deal is.
- It’s best to be an informed and skeptical consumer of contract language. Accept that in terms of the prose, most contracts are a mess. Learn to distinguish between what’s clear and effective, what’s not so clear but you can live with, and what’s confusing and could cause a problem and so needs to be fixed.
More details in this episode…
About Ken Adams:
Ken Adams occupies a unique position in the field of contract drafting, in that he’s the only commentator to focus on the language of contracts. Not what you express in a given contract provision, but how to express it in modern and effective contract language.
His book A Manual of Style for Contract Drafting (ABA 3d ed. 2013) is widely used throughout the legal profession. He gives seminars in the U.S., Canada, and internationally, and he acts as a consultant and expert witness.
As part of its “Legal Rebels” project, in 2009 the American Bar Association Journal, the flagship magazine of the ABA, named Ken one of fifty leading innovators in the legal profession. And The Legal Writing Institute awarded Ken the Golden Pen Award for 2014, “to recognize his exemplary work in contract drafting.” And, Ken’s blog was named to the ABA’s Blawg 100 Hall of Fame in 2015.
Ken has taught contract drafting as an adjunct professor at Hofstra University School of Law, the University of Pennsylvania Law School, and Notre Dame Law School.
After graduating from the University of Pennsylvania Law School in 1989, Ken practiced corporate law in New York and Geneva, Switzerland, with major U.S. law firms.
Ken’s Email Address
Adams on Contract Drafting
Adams Contracts Consulting
Some Comments on Drafting Usages in a FIDIC Contract
My Indemnification Language
NSPE Engineers Joint Contract Documents Committee (EJCDC)
Ken’s Twitter Account
Ken’s LinkedIn Account
This episode is brought to you by PPI, the leader of civil engineering FE or PE exam preparations. Use promo code CIVIL for 20% discount at PPI2Pass.com/coach.
Books mentioned in this episode:
Please leave your comments or questions in the section below related to contract drafting.
To your success,
Anthony Fasano, PE, LEED AP
Engineering Management Institute
Author of Engineer Your Own Success