Goals
QUALITY
Contract drafters have historically focused on what you should say in a contract; hardly any attention has been paid to how you should say it. As a result, the average contract is cluttered with deficient usages, archaisms, redundant synonyms, incoherent formatting, and other glitches that make it an utter chore to read, interpret, or use as a model.
Good things happen if you’re in control of the language and format of a contract. You can craft a given provision so that it conveys the desired meaning concisely and clearly. You will think of nuances that you otherwise would probably have missed. Your contracts will be much easier to read and noticeably shorter.
But to be in control of your drafting, you need to know what the most efficient usages are. That’s why I’ve taken it upon myself to analyze contract usages and disseminate my recommendations in my writings, through my blog, by teaching, by conducting seminars, and by helping companies ensure that their contracts reflect those recommendations.
And I don’t expect to limit my activities to the U.S., as questions regarding contract language and format will arise anywhere that lawyers find themselves drafting and negotiating English-language contracts.
PROCESS
But establishing and disseminating guidelines for contract language and format only gets you so far, because significant change is unlikely to occur one lawyer at a time. At law firms, contract drafting is an industrial-scale activity. Even if lawyers wanted to rewrite their form contracts and had the necessary expertise, they would be hard-pressed to find the time to do it or find clients willing to pay for it. And if they were junior, they would likely meet resistance from above.
And even if a lawyer were to persevere in the face of such obstacles, the rest of the law firm would likely continue as before, reinventing the wheel imperfectly, day after day, with largely untrained associates regurgitating form contracts of uncertain quality and relevance.
Effecting change at company law departments is more feasible: Companies tend to work with a limited number of templates that they use repeatedly; that kind of arrangement is conducive to commoditizing the contract process. And companies are the ones who pay for any inefficiencies, so they have a clear incentive to make the process more efficient. But even at companies, change comes hard.
Changing the process would require centralization, but not in the form of that problematic undertaking, the standard template initiative. Instead, it would be a straightforward matter to create a document-assembly engine that would reduce the bulk of contract drafting to a commodity process. Such a system would allow lawyers to spend less of their time on what amounts to drudgery and more of it on tasks such as planning strategy and negotiating that allow them to bring to bear their expertise.
Using document assembly to draft contracts is not a new idea. But developments in technology make it a much more feasible proposition than previously. Equally important are the changes that have been taking place in the legal marketplace. Clients are increasingly unwilling to pay for the inefficiencies in how contracts are drafted.
You can’t have commoditized drafting without a set of rules governing how the contracts are to be drafted. And you’d need to redraft your templates to comply with those guidelines. You’d also need to train your personnel to draft consistent with those guidelines. My book A Manual of Style for Contract Drafting represents the only such set of rules currently available. For more on how to use MSCD as the basis for an organization’s “statement of style” for contract drafting, see this July 2009 blog post.
But most organizations won’t have a sufficient deal volume to warrant implementing their own document-assembly system. For such organizations, the contract process would be more efficient if they could in effect outsource much of the contract process. That could be accomplished if they were to prepare templates or deal documents using a library of document-assembly templates prepared and maintained by an authoritative vendor. That’s something that I hope to be involved in.
My various writing go into these issues in greater detail. For example, see this article [pdf] and this article, as well as the introduction to MSCD [pdf].
Ken Adams
