In this post I quote Tim Hadley’s email to me regarding how the other side to a transaction responded to his MSCD-inspired drafting.
An interesting additional aspect to Tim’s interaction with counsel representing the buyer was the cover note he added to the draft. Go here to see a PDF copy.
Tim was prompted to add his cover note by my post on preempting pushback from traditionalists (here). His note reflects a somewhat different approach. But I suspect that what approach you use is less important than the basic message that any such preemptive strike sends the other side.
I like the style of Tim’s note, because it gives examples that are likely to be thought attractive and non-confrontational to the other side, however stuck in the mud they might be.
I also like Tim’s style, as much for his willingness to put concrete, hard-to-argue-with examples in his note as for its no-nonsense tone.
The “basic message” to the other side must be stated more concisely and tactfully than I can manage, but the gist is, “The absence of traditional contract drafting usages from this draft is not from ignorance of them but from a design to avoid them in favor of clear modern English that expresses all the provisions of the agreement with maximum transparency. Every provision in this draft has been worded with that aim in mind.”
The other shoe, which I lack the tact to drop delicately, amounts to, “So don’t propose changes that don’t affect the deal terms unless the proposed changes would make the provision to be changed even clearer. And for heaven’s sake, don’t replace clear modern phrasing with traditional usages for no better reason than that they are traditional usages.”
You’ll notice I didn’t drop the other shoe, either, though something to that effect is probably implied by the fact that I went to the trouble to give examples. The number of concrete examples may be overkill, but I decided, for now, to include examples of the usages that seem to appear most often in legal drafting that I sought to avoid. Given that it is probably implied that I would like the other lawyer to use similar phrasing in making revisions, or at least to be accommodating when I change a bunch of occurrences of “shall” in proposed revisions into something else, I thought it would probably be less off-putting to give a few concrete examples than it would be to imply that I want the other lawyer to read a 475 page book before making revisions (even a great book like MSCD).
I sent this same page out on a draft of a new contract last night. Curious to see what the response will be this time.
Also curious — do share when you find out. Your “examples” approach reminds me of something I’ve long wondered: is there a “top ten” list of MSCD recommendations that would remove a disproportionately large percentage of traditional legalese from draft contracts?
I guess it depends on how detailed you want your “top ten” list to be. Two items might be “Get your categories of contract language right” and “Eliminate archaisms.” But if they’re not specific enough, they could be converted into a bunch of more detailed recommendations.
Just the job for a long flight…?
Since the other side doesn’t pay my bills, and since I generally don’t care if they like me, and since I want an agreement that actually works for my client, I have no qualms about redrafting the crap that I receive on a regular basis. I only defer to crappy drafting when it’s in the best interests of my client to ignore its risks. I explain the risks of poor drafting to my client, and go with what the client wants. I’d never kill a deal over wording, because the risk / cost of relying on the crappy wording is usually far less than the value of the deal if things go well.
I let the client decide what they want, and usually they want something they can read–which is one of my arguments to the other side (“my client prefers wording that he/she can understand and discuss with his/her business partners . . .”).