Are you a lawyer? Do you draft contracts? Do you have other people draft contracts for you? Yes? Then I have a pop quiz for you. Consider the following questions:
- Does the phrase representations and warranties determine the remedies available to a contract party?
- When you draft contracts, do you include a traditional recital of consideration in the lead-in to the body of the contract?
- Do you use the phrase best efforts to impose on a party a more onerous obligation than would be imposed by using the phrase reasonable efforts?
- Do you use in your contracts any of the following: WITNESSETH, WHEREAS, NOW THEREFORE, and IN WITNESS WHEREOF?
- Do you use the phrase indemnify and hold harmless?
- “All matters arising under this agreement shall be governed by New York law.” Does this represent disciplined use of the word shall?
- Does the phrase intending to be legally bound feature in your contracts?
I suspect that unless you’re familiar with the stuff I write, you answered “Yes” to at least one of these questions. I’d answer each of them with a resounding “No.” What explains the disconnect?
One of the interesting aspects of writing is that not having anyone critique your work is an effective way to ensure that you think you’re a great writer.
If any corporate lawyer thinks that he or she is a great drafter, it may be because the traditional way of learning to draft contracts—learning by osmosis—doesn’t involve complying with objective standards. And as a result, mainstream contract drafting is generally a mess, no matter how exalted the pedigree of the drafter.
So what do? You might want to check whether you are in fact a great drafter. One way to do that would be to read some of the stuff on this site.
But abstract notions of quality are unlikely to prompt lawyers to change. So consider how you might benefit from reassessing your drafting:
- You’d be better equipped to articulate the deal, and issues would come to light that would have remained hidden if you had continued recycling deficient language. You’d be doing dentistry with dentist’s tools rather than a screwdriver.
- Your contracts would be about 20% shorter.
- Because your contracts would be clearer, it would take less time to draft and negotiate them.
- Your clients might lose some of the snickering disdain they have for the prose of contracts.
- You’d significantly reduce the odds of your being on the receiving end of that most dreaded of phone calls, the one asking how you could have missed some point or other in a contract that was signed two years previously.
And you also might want to consider how forward-thinking companies are increasingly looking to control costs, address compliance issues, and enhance consistency by commoditizing contract drafting. As part of that inquiry, they’re starting to reassess the language of contracts.
So the traditional way of drafting contracts is coming to be recognized as part of the problem. If you want to be part of the solution, objectively assessing your drafting skills would be a good place to start.
And while you’re at it, you might find of interest this article I wrote in 2006 for the Canadian periodical The Lawyers Weekly. It’s about how lawyers might benefit from a CLE seminar on contract drafting.