This American Lawyer article about the lawyers of the “Forbes 400” reminded me that real-estate developer Sam Zell once said, regarding his first days as a lawyer, “I spent my first week drafting a contract. It was deadly.” (See this WSJ Law Blog item for complete details.)
So, is contract drafting deadly? For junior lawyers, it’s unlikely to be a walk in the park. Exactly how frustrated you get presumably depends on your temperament and ambitions. If you’re a real-estate billionaire-in-waiting, “deadly” sounds about right.
It could hardly be otherwise: You’re likely given little or no training in contract drafting, and you’re asked to base your drafts on precedent contracts containing impenetrable language that would try anyone’s patience. So, on a wing and a prayer, you engage in grand cut-and-paste jobs. I don’t know how anyone could find that gratifying.
But with time your drafting might well become a source of pride. Yesterday I spoke with someone who compared drafting to sculpting—turning a rough block of stone into a work of art. That might represent progress, except for the fact that the language might well still be something of a mess—you’ve just gotten used to it.
Furthermore, what’s deadly about the traditional process of drafting contracts isn’t just the suboptimal language. You shouldn’t be crafting works of art, you should be cranking out Model T Fords on a production line. The action in dealmaking is devising strategy and assisting with negotiations. Papering the deal is scrivener’s work; it should be commoditized. Sure, figuring out how to articulate some complex deal point can be a gratifying challenge, but that sort of drafting represents a small fraction of the drafting required for a given deal.
The deal-specific points are generally a small fraction of the drafting if measured by wordcount, but in my experience they tend to take the majority of the time – as they should. I do feel that the bespoke wording also needs to be drafted by someone with legal training, because it is not as easy to separate the legal aspect from the drafting in practice as it is conceptually. I think the only realistic option is to make lawyers better drafters, rather than separating lawyer and scrivener functions.
The bottom line is this – if I gave a term sheet to a drafting specialist with no legal training who had not been involved in discussing the commercial terms, I would not expect to get a useful contract back from them, however good their drafting.
(I'm not quite sure the extent to which this agrees or disagrees with what you said! Sorry if I missed your point.)
Westmorlandia: My point was that the traditional process of drafting contracts is deadly because (1) it requires undertrained junior lawyers to shovel impenetrable verbiage that they, and many others, don't understand and (2) it requires lawyers to be artisans.
As regards realistic options, I'm currently organizing one, namely Koncision Contract Automation.
Ken