It’s Possible to Change How a Law Firm Drafts Contracts

We know that in general, BigLaw contract drafting leaves a lot to be desired. We also know that when it comes to changing how they draft contracts, law firms face greater obstacles than do companies. (See this article.)

But change is possible: at least one Australian law firm that I know of, Mallesons Stephen Jaques (now King & Wood Mallesons), devoted considerable resources to converting to “plain language” drafting, starting in 1986. Go here for a copy of Using Plain Language in Law Firms, 73 Mich. Bar. J. 48 (1994). It’s by Edward Kerr, the Mallesons partner who managed the project, and it describes how they went about it.

Whether any U.S. firm ever undertakes such a project depends on whether there’s enough carrot and stick to overcome the dead weight of inertia. But first, you have to be open to the possibility of change. The example of Mallesons shows what can be accomplished.

On the other hand, I recall that about a dozen years ago, Jones Day apparently embarked on a grand template project of some sort that was scuppered after a mutiny in the ranks. I don’t know whether Jones Day’s project aimed to improve quality, but it shows that significant change, of whatever sort, has to be managed carefully.

Posted in Process | 5 Comments

  • Westmorlandia

    The Mallesons article is very interesting. I don’t think it’s just Mallesons though – as a rule of thumb I tend to find that Australian firms have the cleanest and clearest documents, so either Mallesons have influenced the Australian market or that kind of approach was already part of their legal culture.

  • Enertse

    Sorry for hijacking this thread, but I’d be interested in your opinion of this recent article by an Australian law firm noting that the concept of a deed does not exist in the US: “unless the agreement involves ‘consideration’, the agreement will not be enforceable”.

    • AWrightBurkeMPhil

      The “tip” in question reads:

      “US requires consideration for agreement to be enforceable.

      “The concept of a Deed (an Agreement without consideration) does not exist in the US and unless the agreement involves “consideration”, the agreement will not be enforceable. So don’t get your US business partner to sign a Deed, he or she will give you a strange look and it won’t provide you any protection.”

      Looks as if someone cracked a fruity, mate. A deed is not a contract or an agreement, it’s an instrument that conveys an interest in real property.

      The headline is generally correct, though — most states require agreements — to be enforceable — to involve consideration (an exchange of value).. There are exceptions recently discussed on this blog

      Ken recommends that contracts not recite consideration (for several reasons) and wrestled with the situation where there is no consideration for the agreement, but the law of the state makes agreements without consideration enforceable if they contain a false statement of consideration.

      • Mark Anderson

        In English law (and, I suspect, Australian law), an agreement can be executed “under hand” or “under seal”. The modern terminology for a contract under seal is a contract executed as a deed. If you execute your contract as a deed, you don’t need consideration to make it binding.

        Certain contracts and contract-like instruments must be executed as deeds, eg the transfer of real property and powers of attorney.

        It seems that the concept of contracts under seal has largely withered on the vine in the US, and is limited, as A Wright indicates, to instruments of transfer of real property.

        To come back to the original “tip”, if the contract is made under Australian or English law, it is still possible to execute the contract as a deed, even if one or more parties is from the US. English law includes a statutory instrument that clarifies how overseas corporations can execute deeds. If the contract is made under US laws, then the tip is right.

    • http://www.adamsdrafting.com/ Ken Adams

      Instead of apologizing for asking a question that has no bearing on the post, I suggest that you instead contact me by email.