This from a reader who is director of legal services at a global company:
The problem with a full commitment to adopting MSCD is that it takes a lot of work to get good at it. I’ve spent a lot of time with it—I even outlined, law-school style, the chapter on categories of contract language, to use as a cheat sheet. That is the most important part of what you advocate, I think (not discounting the others). But it’s hard for me to insist that my attorneys take that much time, and trying to get outside counsel to do it borders on hopeless, at least at the fast pace we’re all try to get things done. Still, I keep trying, and I share some of the most important things when I see it in their work.
It prompted the following thoughts:
Yes, categories-of-contract-language analysis cries out for a cheat sheet. I discussed that in this post. I’m pleased to report, friends, that the fourth edition of MSCD will contain, at the front, a “quick reference” section that will offer a just-the-guidelines summary of the hundreds of pages that follow, including the chapter on categories of contract language.
More generally, MSCD-compliant drafting isn’t easy. It requires thought, and it requires that experienced drafters unlearn all sorts of bad habits. But you make it harder than it needs to be if you approach it in an improvised way. Here’s how you do it: You adopt a style guide of the sort described here. You train your personnel in drafting and reviewing contracts consistent with the guidelines. You revise your templates consistent with the guidelines. You have buy-in from the top. You have quality control. You automate when deal volume, deal value, and the level of customization make it worthwhile.
All that takes time and costs money, but companies would have an easier time of it than law firms, as using a limited number of templates repeatedly allows companies to achieve economies of scale. The biggest obstacle is stifling inertia. People don’t like change. And lawyers don’t like surrendering autonomy (see this article).
But for any major company that is willing to go through up-front pain, the rewards would be great. And I’d bend over backwards to help.
Yes, getting outside counsel to cooperate would be a challenge. But instead of trying to win over the entire firm, take an incrimental approach: require that lawyers who work on your matters get training in MSCD-compliant drafting. And use your clout: make a transition to MSCD-compliant drafting a condition to your continuing to use a law firm’s services.
My own reaction to first reading MSCD was as if scales had fallen from my eyes.
Over and over, I thought ‘Of course! Why didn’t I see that before Ken pointed it out?’
Now it’s pretty much impossible to return to throwing ‘shall’ all over the place, or using passives (let alone forgetting to specify a by-agent), or leaving a list of examples open to ejusdem generis, or underlining, or allcapping, or saying ‘W I T N E S S E T H’ or ‘WHEREAS’ or ‘hereunto’ or ‘nothing herein to the contrary notwithstanding’ (except in an emergency). The list goes on.
MSCD style isn’t hard to learn. You read the book, you get the idea, the rest is particulars, which is why there’s a table of contents, an index, and a model contract with annotations.
Training the lawyers in one’s firm and revising all the templates take time, and time is money, so yes, achieving MSCD compliance is expensive, but the process can be spread out a bit.
The most-used third of templates could be revised at once in a big push, leaving the next third till the first third is done. The third least used could be revised one at a time when each is next called up for use.
Ken:
I agree with everything AWB says. Additionally, I think we have to keep the focus away from the difficult cases of contract language, where traditional language attempted to do multiple things at once, so MSCD-compliant drafting is more difficult. Eighty percent of contract language is straightforward obligation, permission, disclaimer, and the like. Applying MSCD to that part is easy and worthwhile even if doing the other 20 percent gets perpetually delayed.
Chris