It’s Good to Have an Entire State on My Side

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Editor’s Note: Today’s post is from Dick Locke, Sourcing Innovation’s resident expert on International Sourcing and Procurement. (His previous guest posts are still archived.)

Back on August 1 of this year, I posted an article that included these paragraphs:

Here’s the tactic for the day.

Run a grammar check on your contract using Microsoft Word with “check readability statistics” turned on. Look for a “reading ease” score of 40 or higher and a grade level requirement of 11th grade or less. Remember, the document probably won’t be in the supplier’s language. Once you achieve that, then print the document in an attractive format. Pay attention to typography and white space. Make it easy to read.

If your lawyer struggles with this, get him or her a copy of the SEC’s A Plain English Handbook . It has lots of guidelines and tips. Another good source is Plain English for Lawyers, which you can find on Amazon.

You probably read that advice here first.

It was good to get reinforcement from the State of Rhode Island. On August 19th, The NY Times published an op-ed article titled Plain English is the Best Policy. The article said that Rhode Island is going to require health insurance policies to be written at the eight grade level. Apparently that’s the average adult reading level in Rhode Island. The State will determine a contract’s education level with the same Flesh-Kincaid score that I recommended. It’s probably built in to your word processing software.

Here’s a “before and after” from the article:

In the event a third party, including your employer/agent, is or may be responsible for causing an illness or injury for which we provided any benefit or made any payment to you, we shall succeed to your right of recovery against such responsible party. This is our right of subrogation. If you do not seek damages for your illness or injury, you must permit us to initiate recovery on your behalf (including the right to bring suit in your name).

That paragraph required 13.5 years of US education and got a reading ease score of 45.

Your injury or illness may have been caused by someone else. If so, we can collect from that person any claims we pay on your behalf. For example, if we pay for your hospital stay, we can collect the amount we paid for your hospital stay from the person who hurt you. We can also collect payment from that person even if he or she agreed to pay you directly or has been ordered by a court to pay you. If the person who caused your injury has already paid you, we can collect from you the amount he or she has already paid to you. This is called subrogation. In addition, if you do not try to collect money from the person who caused your injury, you agree to let us do so in your name.

This material requires 7.9 years of education and the reading ease score is 75.

My advice had to do with writing an international purchasing contract. Perhaps I set my standards too high. I thought 11 years was an appropriate level.Here’s a more pertinent example I use in my training programs

Supplier will not make any changes to the Products or to processes supporting Products which have been certified by Buyer, without Buyer’s prior written consent, such consent not to be withheld unreasonably. In the event of such changes, at Buyer’s discretion Supplier will either: (i) replace all such Products with Products approved by Buyer and reimburse Buyer for all actual and reasonable expenses incurred that are associated with such Products replacement (including expenses associated with problem diagnosis, testing, and replacement of Products in normal inventory, finished goods inventory, distributors inventories, and with customers); or (ii) credit or refund Buyer the Price of the Products. In the event of upgrades to the Products, Supplier will offer Buyer such upgrades as soon as commercially available.

That’s 12th-grade material. Reading ease is an abysmal 15.

I rewrote this in conjunction with a client’s attorney who was very nervous about my rewriting her work. I shortened the sentences, eliminated passive verbs, added more bullets and numbering and removed the distracting mid-sentence capitalization of common words.

Unless buyer consents in writing, supplier will not:

  1. Make any changes to products, or
  2. Make any changes to supporting processes that buyer has certified.

Buyer will not withhold such consent unreasonably.

If supplier makes such a change without buyer’s consent, buyer may chose one of the following two options.

  1. Supplier will replace all such products with products that the buyer approves. Supplier will also reimburse buyer for all actual and reasonable expenses that buyer incurs in replacing the products. Expenses include expenses associated with problem diagnosis, testing and replacement. Buyer may require replacement of products that are in normal inventory, finished goods inventory, distributor inventory, and with customers. OR
  2. Supplier will credit or refund buyer the price of the products.

If supplier upgrades products, supplier will offer buyer such upgrades as soon as commercially available.

This requires 10.3 years of education and got a reading ease score of 43.7.

Enjoy working with your attorneys.

Dick Locke, Global Procurement Group.