A longtime reader had the following to say in an email to me:
I use some outside counsel that I think are stellar brief-writers. Even their first drafts are generally very good.
Then I get a draft settlement agreement or agreed protective order from them and groan. Why do they write contracts so badly?
The prosaic reason is that they don’t write agreements as often as they write briefs, so they don’t get good at it and don’t spend time studying how to do it.
I wonder if there isn’t a deeper cognitive misfire, because it is so consistently true across firms. I think great brief-writers mistakenly try to persuade in contracts. They use shall inappropriately; but that seems to be an attempt to persuade the reader that they really, really have to comply. They use deem excessively and passive voice excessively; but that can seem like the voice of authority. And so on.
What do you think?
I think my reader has got it exactly right.
In theory, litigators should be in a good position to do a better job than transactional lawyers, in that litigators aren’t as immersed in traditional contract drafting so might have a bit more critical distance. Also, litigators seem to pay more attention to the notion of clear writing do transactional lawyers, or at least they talk about it more.
But litigators face the same problem as the rest of us—to find language to copy, they have to rummage through precedent contracts, most of them wretched.
And as my reader notes, the litigator mindset is also a factor. Unlike litigation writing, contracts don’t serve to persuade or explain. Instead, they consist of instructions that govern relations, with the result that contract language is more limited and stylized than litigation writing. I’m fond of saying that contract language is analogous to software code, although my limited understanding of software code has made me cautious of flinging that analogy around too much.
One indication that the difference between contract language and litigation writing has practical implications is the tendency of legal-writing commentators to offer analysis that makes sense in the context of litigation but not when it comes to how contract language works. See this 2011 blog post for an example of that.
Perhaps another factor is that the litigation-related contracts, or provisions of contracts, that litigators draft or contribute to seem likely candidates to trigger extreme risk aversion.
The upshot is that contract language that litigators draft or contribute to is usually distinctive. In particular, it tends to be rather florid. Consider, for example, use in release language of the phrases throughout the universe (see this 2007 blog post) and from the beginning of time (see this 2006 blog post).
The only way around this is to have everyone playing by the same rules, or rather using the same style guide. That’s why I’m always happy to hear from litigators who have found MSCD useful.