As their principal objection to tinkering with mainstream contract language, traditionalists offer the notion of “tested” contract language—mess with the standard formulations and you invite a world of risk into your lives.
My objection to that objection has been that it’s mostly offered without any backup. Usually it’s a platitude that’s invoked as a matter of expediency, to rationalize maintaining the status quo. So I welcome attempts to imbue the platitude with some substance. I wrote about one such attempt in this February 2016 post.
Another such attempt has now arrived on the scene, in the form of an article by Lori Johnson, an assistant professor at William S. Boyd School of Law, University of Nevada, Las Vegas. (Go here for her faculty bio.) Johnson has featured in this blog before, in this September 2015 post, in which I mentioned her previous article—a defense of the notion of using “magic words” in contract drafting—but declined to look at it more closely.
Johnson’s new piece is entitled The Ethics of Non-Traditional Contract Drafting. It’s available for download here. It’s described as a “Legal Studies Research Paper” published by her law school, but I assume that it might show up in a law review at some point. As was the case with Johnson’s previous article, my work features prominently in the new article. (That’s why I thought it appropriate to say what I think of this article.)
Here’s the abstract:
A new generation of contract drafters faces increasing commentary advising them to change traditional contract terms into plain language constructions. Yet, traditional, tested terms have consistent meanings, and when these meanings benefit client objectives, advocates should consider retaining them. This article posits that failing to do so can impact a lawyer’s ethical obligations. Specifically, an attorney’s duties of competence, allocation of authority, diligence, and communication under the Model Rules of Professional Conduct require careful thought about modernizing tested contract terms. These duties require the ethical drafter to research whether the use of a traditional, tested term advances a client goal more effectively, and communicate with the client concerning the risks associated with the potential change.
Johnson starts by explaining why using novel formulations instead of traditional usages could implicate lawyer rules of ethics. She then offers two examples of novel usages that she claims created problems. She closes by suggesting how rules of ethics could be “reimagined” to better address ethics challenges in transactional drafting.
But there’s no there there. She offers this big buildup about how those who follow my guidelines are flirting with danger, but there’s no payoff.
Of the two short case studies she offers, one involves use of will instead of shall. It’s interesting, and it prompted me to do today’s other blog post, but it has no bearing on my guidelines: unlike Bryan Garner, I don’t recommend using will instead of shall to state obligations.
The second case study involves using something other than arising out of or relating to in arbitration provisions. In my writings, I recommend that if you want a provision to cover more than just claims under the contract, there are clearer ways to accomplish that. (See this October 2013 post on that subject.) In the case that Johnson discusses, an appellate court held that an arbitration provision that doesn’t use the traditional formula should be interpreted broadly. How does that show that my recommendation is risky? My recommendation assumes that you want the arbitration provision to be interpreted broadly.
So as regards what I do, Johnson offers nothing—zip, zero, nada—to justify the portentous buildup. Her article is hollow. She would have been better off if she had started with examples of novel formulations that have had adverse outcomes and then drawn conclusions from that. A dearth of examples might have prompted her to drop the idea entirely.
But let’s assume, for the heck of it, that Johnson had been able to find a case in which use of wording I recommend had yielded a bad outcome. Would that have represented an indictment of my approach to contract language? Hardly. I’ve analyzed and recommended alternatives to untold dozens of usages. Do I always get it right? No—I’ve adjusted my recommendations many times over the years.
Furthermore, litigation outcomes are subject to the whim of judges. If a given judge is sufficiently addled, or is bent on achieving a given outcome, even the clearest language can be subject to attack.
It’s hardly surprising that my guidelines emerge unscathed from Johnson’s article. What I have to offer is in fact as simple as can be: Don’t express transactions using prose that’s bloated, archaic, and confusing, leading to your wasting time and money and running the risk of disputes over meaning. Instead, say whatever you want to say clearly and concisely, following the guidelines that I’ve developed over the past twenty years. That can involve novelty—for example, using states instead of represents and warrants—but that holds no terrors, because you’re saying exactly what the context calls for, and you’re saying it clearly.
Here are two other things I noted in Johnson’s article:
In the conclusion to her article, Johnson says that (emphasis added) “significant risks are associated with jettisoning all traditional, tested, legally-significant terms in lieu of phrasing more friendly to lay readers.” That’s a classic misconception. My guidelines aren’t a sop to nonlawyers. Lawyers too are bamboozled by traditional contract language; that might be what’s most pernicious about it.
And Johnson implies, in the above quotation and note 13 of the article, that I advocate eliminating all terms of art. That’s not the case; see MSCD 1.8–.9, 1.23.
In basing two articles on the alleged pitfalls in my approach to contract language, Lori Johnson has gone down a road to nowhere. And in the process, she has appointed herself champion of traditional contract language. What an unpromising cause! For anyone interested in the ethics implications of contract drafting, a far more fruitful project would be exploring the implications of unthinkingly copy-and-pasting stuff that makes no sense.
While I don’t consider my attempts to jettison archaic and stilted legalese from contracts as a sop to non-lawyers, I do take my ethical obligations seriously. One of the primary ethical obligations of any attorney is to provide information to the client to allow them to make informed decisions about their legal matters.
Many of my clients are small business owners and often in the services industries. I am being asked to prepare contracts for these owners to present to their clients. My clients are not unsophisticated, but they have to explain their contract to their customers and a contract burdened with unnecessary and archaic language is not helpful to their business.
So when it comes to the ethical considerations of contract language, I think it safer to write for my client rather than writing for judges or other lawyers. In the end, my professional judgment is that I would rather risk an ethics complaint for using “lay language” that some judge misinterpreted or interpreted against me but with a defense of attempting to serve my client better. I think my defense in that situation is far better situated than simply saying I cut and pasted “tested” language that didn’t suit my client’s legal needs.
There is nothing wrong, in my view, with an academic raising a question and then exploring the arguments and authorities. That is what they are supposed to do. The article itself provides interesting summaries of tangential issues, but doesn’t find much of substance on the central point. It looks very thin. I am not surprised by this. If there were an ethical obligation to use tried and tested language, I think as conscientious practitioners we would know already. If the point of the article is to say that we should be under an ethical oblgation (even if we are not currently), then it still looks thin, and it also looks partial – the arguments for an ethical duty not to use archaic lanaguage have not been properly articulated.
To cover this subject properly, it would be necessary to address the following issues (and probably others) either at all or in more detail than the article provides:
– the extent to which the courts rely on previous court decisions on the meaning of words, outside the specific case of standard form contracts, such as those created by industry associations
– the problem of archaic and misunderstood contractual language and how it should be addressed
– an attorney’s duty to serve the client’s interests in relation to the large majority of contracts that do not go to court
In jurisdictions where ‘consumer contracts’ (defined term) must be in ‘plain language’ (defined term), a lawyer-drafter may struggle to achieve complicated goals in the required simple language.
In theory, a drafter might substitute compliantly ‘plain’ formulations for noncompliant ‘traditional’ formulations, and the ‘plain’ ones fail to do what the traditional ones did. That would be malpractice, and malpractice is unethical. So yes, plain language runs ethical risks.
A version of the same danger exists in ‘clear modern’ drafting. A lawyer carelessly and wrongly deciding that a traditional formulation is meaningless fust and using instead a supposedly clearer substitute that doesn’t do the same job may commit malpractice.
But the same is true if a lawyer inserts or omits a comma and in so doing misstates the client’s intention. Must we then remark ‘the ethical danger of commas’?
The ethical danger lies not in replacing archaic, bloated, confusing language with clear, concise language, but in doing it incompetently. A lawyer’s every professional use of language runs the same risk.
+1 for commas being unethical. Dirty rotten and no-good commas. I always knew they were up to something. Especially the card-carrying commas.
Not to mention the ethical dangers of circumflexes and cedillas. Cheese-eating surrender symbols.
Ken – welcome as always. What Mrs. Johnson fails to realize are the real risks to the “drafter” (quotation marks intentional) as summed up in your last phrase: “a far more fruitful project would be exploring the implications of unthinkingly copy-and-pasting stuff that makes no sense.” Bingo. Mrs. Johnson’s time would be better spent teaching law students to learn the craft, to think and then to write – as opposed to reading old “tried and trues” and perfecting the art of the CTRL-V shortcut.
As Professor Johnson points out in her article, lawyers have an ethical duty to write well. That I agree with. And in my mind, this means choosing the right words, using them in the right context, and with the correct spelling and punctuation. Her premise that this ethical duty can ipso facto be discharged by selecting supposed time-tested, court-approved terms of art is faulty because there are no such “blessed” terms of art. There appears to be a backlash against plain language in some legal academic circles, and Michael Braem and I hope to join Ken in countering that in an upcoming article in the Michigan Bar Journal.