The attorney who does draft the right way is going to prepare contracts quickly, negotiate rapidly (less unclear, interminable language to argue over), and, as a result, will bill less hours. The inefficient attorney will instead bill more hours, get a bigger bonus, and have a better chance at being promoted. Since most contract disputes are handled by negotiation, and most litigation settles, it is unlikely that the inefficient attorney’s small sample size of deals is going to blow up in her face. Also, by the time the inefficient attorney’s contract results in litigation, the associate will most likely have moved on due to the massive attrition rate (often due to burnout from billing so many hours).

The good news is that as major corporate procurement departments start using strategic sourcing principles to manage legal services (eBay and United Technologies are already doing so), firms will have to change their incentives to value efficiency. However, this will take quite some time.

Another aspect to the short-sightedness is the possible consequence for the drafter of the contract landing up in court. Very frequently, the issue before the court is the interpretation of the contract. If one’s client were to lose such a case, the client might come to the drafter seeking compensation for the drafter’s failure to convey what the client wanted conveyed.

Instead, my rule of thumb is that substantive law relates to what you say in a contract; my “drafting clearer contracts” stuff relates to how you say it.

Ken

My modest contribution: I’m afraid that we need more precise language to distinguish between, on the one hand, ‘pure’ contract drafting and plain English techniques, and on the other hand, ’substantive legal issues(Damon)’ – as applied to the content of Contract Drafting courses.

In other words, those that have not had their expectations met by Contract Drafting courses simply haven’t been on the right ones!

From my experience as a trainer on Contract Drafting and Legal English courses, the ideal model course/seminar is a composite of drafting skills AND application the substantive law practised by the delegates. This doesn’t mean being bang up to date with the very latest case-law, but being able to bring some (or many) cases that illuminate the points made. In addition, perusal in the group, of documents that the delegates are working on; thus, making the course diagnostic to them, and not just repeating what Garner or others say, just because it is in a book.

As a trainer in the UK, I also acknowledge differences between the US and English legal systems in this regard – those that I am aware of.